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The case for a uniform civil code and the case against it

AkshaySreevatsaPreviously, I discussed the historical and political motives behind a uniform civil code and the Supreme Court’s views on the subject. The Supreme Court has consistently advocated a move in the direction of uniformity as a matter of hortatory constitutional commitment under the Directive Principles of State Policy. In this article, I will lay out the arguments both for and against a common civil code, considering them from theoretical and practical perspectives.

Arguments for a uniform civil code

First, the codification and unification of the variegated personal laws will produce a more coherent system of laws. The resulting internal consistency will obviate much of the existing confusion and enable easier and more efficient administration of laws by the judiciary. From the perspective of lawyers and litigants too, a uniform civil code will mean that there is a better understanding of the law.

Second, it can be argued that a uniform civil code will provide considerable impetus to the movement towards a more secular nation by placing all communities and religions on the same plane, and thereby placing an individual’s Indian identity before his or her religious affiliation.

Thirdly, from a gender perspective, it is increasingly argued that the personal laws of certain communities and religions treat men and women more unequally than other communities do. Considering the demands of a progressive democratic state, where women have just as important a role to play as men, enacting a common civil code would arguably eliminate this inequality, and lead to a more gender sensitive society.

Fourthly, a uniform civil code will infuse the Indian legal system with a much needed dose of parity between different religions in respect of their personal laws. For instance, divorce amongst Hindus and Christians is substantially more stringent and regulated (by virtue of being codified) than under Muslim law, where a divorce may proceed on the basis of the triple talaq. This argument overlaps to some extent with that of gender equality.

 

Arguments against a uniform civil code

The most widely touted argument against the enactment of a uniform civil code is that it will reflect a tyranny of the majority, and engender a great degree of divisiveness within the Indian society, by annihilating and marginalising the minorities within the nation by depriving them of their identity, which is kept intact primarily because of the presence of personal laws. However, as K.M. Munshi said in the Constituent Assembly, specifically citing the examples of Turkey and Egypt, “Nowhere in advanced Muslim countries the personal law of each minority has been recognised as so sacrosanct as to prevent the enactment of a Civil Code”.

LawSchoolInductionWhile the idea of a uniform civil code may sound attractive and appealing in theory and principle, it may be practically impossibile to implement for several reasons. First, the task of actually devising a set of rules that will govern all communities is a very daunting and onerous one considering the vast array of interests and sentiments to be accounted for, in order that all communities enjoy equal rights, which are also not disadvantageous compared to their situation under their separate personal laws. Secondly, since personal laws are driven by, and derived from, religious beliefs, it may be prudent not to disturb them by enacting a common code, for this runs the risk of engendering a great deal of animosity and tension between various religious communities – something that is already a major problem in India. In other words, if a uniform civil code is enacted, it could aggravate existing tensions, lead to significant disharmony on the ground, and also alienate vast sections of the Indian population. This is especially pertinent in light of the BJP’s ascent to power.

There are valid arguments on both sides of the ideological fence. Whatever the ultimate outcome may be however, the decision has to be well thought out and grounded in reason and not biased political motives or partisan communal interests.

Akshay Sreevatsa is an alumnus of the National Law School of India University, Bangalore and the Berekely University School of Law (Boalt Hall).

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The Supreme Court’s advocacy of a uniform civil code

AkshaySreevatsaOver the last three decades, in spite of the deeply divisive nature of the issue (as I had explained in my previous post here), the Supreme Court of India has strongly supported moving towards the aspiration enshrined in Article 44 of the Constitution of India by unifying the personal laws of the nation’s diverse communities. The Court is often at the frontline of the nation’s policy debates and its decisions often guide other branches of government. I will now briefly examine three landmark cases that have come to exemplify the Court’s stance on the uniform civil code.

The first major case to focus attention on the issue was Mohammed Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945). Here, a penurious Muslim woman claimed maintenance from her husband under Section 125 of the Code of Criminal Procedure, 1973 (“CrPC”), and was granted her claim. The then Chief Justice of India, Y.V. Chandrachud, came out strongly in favour of a uniform civil code, observing that, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.” A national furore erupted in the wake of this decision, prompting the incumbent Rajiv Gandhi government to overturn the decision by enacting the Muslim Women (Protection on Divorce) Act, 1985, which effectively barred Muslim women from claiming maintenance under Section 125. This move contradicted the observations of the Supreme Court and was justified on the grounds that mere observations of the Court did not obligate the other branches of government to actually implement such a uniform code.

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Justices Y.V. Chandrachud, Kuldip Singh, and V.N. Khare

A decade later, in Sarla Mudgal v. Union of India (AIR 1995 SC 1531), the Supreme Court revisited the matter. The issue in question was whether a Hindu man who embraced Islam could solemnise a second marriage as a Muslim. The Court held that in such a case, the first marriage would have to be dissolved under the Hindu Marriage Act, 1955. A simple conversion to Islam followed by marrying again would not amount to such a dissolution. The man’s first marriage would therefore, still be valid and under Hindu law, his second marriage, solemnised after his conversion, would be illegal under Section 494 of the Indian Penal Code, 1860. Justice Kuldip Singh, delivering the judgment, remarked sharply that “the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. He went on to note that, “When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India.”

Thereafter, in 2003, in John Vallamattom v. Union of India (AIR 2003 SC 2902), the Court had reason once again to express its opinion on the subject of a uniform civil code. In this instance, John Vallamattom, a Christian priest, challenged the constitutional validity of Section 118 of the Indian Succession Act, 1925, claiming that it was unfairly discriminatory against Christians for placing unreasonable restrictions on their ability to will away land as donations for charitable and religious purposes. A three-judge bench of the Supreme Court, comprising Chief Justice V.N. Khare, and Justices A.R. Lakshmanan and S.B. Sinha, struck down the provision as being violative of Article 14 of the Constitution. Chief Justice Khare commented: “We would like to State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India…It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.” This case was also acknowledged in the 209th Law Commission Report on the Proposal for the Omission of Section 213 of the Indian Succession Act, 1925. In the immediate aftermath of the ruling, the BJP called for a national debate on a uniform civil code, and wanted the Law Commission to incorporate “fair and equitable ingredients” from the personal laws of the Hindus, Muslims, Christians, and Parsis to formulate a common code.

Therefore, despite the political ambivalence surrounding the issue, the Supreme Court’s consistent advocacy in favour of a uniform civil code suggests that from a legal perspective, India may well be ready for uniform personal laws, and also that there is sufficient institutional competence and willingness for the adjudication and administration of these new laws.

(Akshay Sreevatsa is an alumnus of NLSIU (2011) and UC Berkeley School of Law (2014). He currently teaches International Law at The School of Law, Christ University, Bangalore.)

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A uniform civil code requires consideration of many factors outside the law

AkshaySreevatsaIn making and implementing new laws and policies, India’s legal system must account for one of the defining characteristics of the modern Indian state – its abundant diversity across communities, religions, languages, and a host of other indices. This is particularly true when the policy under consideration is a uniform civil code to consolidate and homogenise personal laws that govern different religions.

The term “civil code” describes the set of laws that govern personal matters such as marriage, divorce, inheritance, maintenance, and adoption. As things stand now, different sets of personal laws govern these subjects. Hindus are governed by one set of laws, Muslims by another set, Christians by yet another, and so on. With a uniform civil code, personal laws would be homogenised and unified and made equally applicable to all citizens, irrespective of their religious or other affiliations.

Does India need a uniform civil code? When India gained independence, the Chairman of the Drafting Committee, Dr. B.R. Ambedkar, along with several other eminent nationalists such as K.M. Munshi, Gopal Swamy Iyengar, and Alladi Krishnaswami Iyer supported the idea. Muslim fundamentalists such as Pocker Sahib, Mohammed Ismail Sahib, Hussain Imam, and Mahboob Ali Baig Sahib Bahadur on the other hand, opposed the idea. Pocker Sahib noted that imposing uniformity over all communities to override their right to follow their own personal laws in respect of marriage, inheritance, and divorce would amount to tyranny. Mohammad Ismail Sahib declared in the Constituent Assembly that:

“If anything is done affecting the personal laws, it will be tantamount to interference with the way of life of those people who have been observing these laws for generations and ages. This secular State which we are trying to create should not do anything to interfere with the way of life and religion of the people.”

Disputing arguments for uniformity of laws, he went on to argue:

“[I] maintain that for that purpose it is not necessary to regiment the civil law of the people including the personal law. Such regimentation will bring discontent and harmony will be affected. But if people are allowed to follow their own personal law there will be no discontent or dissatisfaction. Every section of the people, being free to follow its own personal law will not really come in conflict with others.”

Responding to the argument that India was simply too diverse to adopt a uniform civil code immediately, and that any such idea should be implemented only at a very distant date, Members of Parliament M.R. Masani, Hansa Mehta, and Amrit Kaur wrote:

“We are not satisfied with the acceptance of a Uniform Civil Code as an ultimate social objective. One of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion which keeps the nation divided into water-right compartments in many aspects of life…”

This debate happened in the backdrop of support for the theory that since Hindus and Muslims were two nations, Islam would not be free in secular India. The marked absence of consensus, combined with the prior assurances given to the Jami’at-ul-’Ulama-i-Hind by Indian National Congress leaders like Jawaharlal Nehru and Mahatma Gandhi that no Islamic laws would be abolished after independence led to the compromise of Article 44 of Constitution of India.

Article 44 declares that, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Despite this constitutional commitment, Article 44 is only one of the several Directive Principles of State Policy, which, although aspirational and exhorted as fundamental to the governance and law making in India, are according to Article 37, neither enforceable nor justiciable in a court of law.

MohammedIsmailSahib_RadhaMohanSingh_uniformcivilcode.jpg.Sixty seven years into Independence, a uniform civil code remains an aspiration. The two most prominent national parties have pulled in opposite directions. After the BJP’s recent ascent to power at the Centre, Union Minister Radha Mohan Singh called for a discussion on the subject. Congress MP Shashi Tharoor cautioned the government against creating unpleasant divisions and bitterness in society just after the elections. Markandey Katju, the Chairman of the Press Council of India and a former judge of the Supreme Court, recently favoured the implementation of a uniform code, even going so far as to attribute the backwardness of the Muslim population to the fact that the community’s personal laws had not been modernised.

Clearly, devising a uniform civil code that retains only those practices, traditions, and laws that are suited to today’s the needs and discards retrograde elements is not purely a matter of legal thought and process. It is in fact an inveterately political issue, requiring careful consideration of many factors outside the law, including the sentiments of the communities involved.

Akshay Sreevatsa is an alumnus of the National Law School of India University, Bangalore and the Berekely University School of Law (Boalt Hall).

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Supreme Court wrong to cite contrary personal law as basis for rejecting a fundamental right to adopt

ShadanFarasat_SupremeCourtofIndiaIn a recent decision, Shabnam Hashmi v. Union of India, (2014) 4 SCC 1, a three-judge bench of the Supreme Court upheld the right of a Muslim couple to adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 (“JJ Act”). The question posed sharply before the Court was whether a Muslim couple should be allowed to adopt children under the JJ Act even though Muslim personal law as applicable in India only provides for the Kafala system, under which a child can be put under the care of a Kafil, who provides for the well-being and care of the child while the child remains the descendant of the biological parent and not the adoptive parents. The implication of adoption under the JJ Act is that the adoptive parent is treated just like the biological parent of the child and biological parent ceases to be the parent of the adopted child.

LR-BlogAdThe petitioner, a social activist, approached the Supreme Court directly under its writ jurisdiction by filing a PIL and seeking a dual declaration that:

1. Muslims can adopt a child with full rights as natural parents under the provisions of Section 41 of the JJ Act, and that

2. the right to adopt a child be declared a fundamental right.

Speaking for the Division Bench, Justice Ranjan Gogoi’s judgment answered the first question in the affirmative, holding that prospective parents can either employ the provisions of Section 41 to adopt a child or submit themselves to their applicable personal laws. Personal laws however, cannot dictate the operation of the provisions of an enabling statute like the JJ Act and cannot come in the way of a person who chooses to adopt a child under JJ Act. In effect, the Supreme Court gave Muslim parents the choice to adopt either according to their personal law or according to the JJ Act.

This approach, of giving the affected individuals an option to choose between the personal law and the applicable statutory law is a mechanism that can be easily used to harmonise many cases of conflicts between personal law and statutory law that go beyond the issue of adoption.

Despite having developed this methodology, surprisingly, the Court found its own approach to be an interim measure, until the professed goal of the Uniform Civil Code under Article 44 of the Constitution is achieved.  The court observed:

“To us, the Act is a small step in reaching the goal enshrined by Article 44 of the Constitution. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute. At the cost of repetition we would like to say that an optional legislation that does not contain an unavoidable imperative cannot be stultified by principles of personal law which, however, would always continue to govern any person who chooses to so submit himself until such time that the vision of a uniform Civil Code is achieved. The same can only happen by the collective decision of the generation(s) to come to sink conflicting faiths and beliefs that are still active as on date.”

While this approach is sensitive to the country’s many faiths, it nevertheless presupposes that the UCC is a constitutional goal that should be achieved, even if in the distant future. Applying the same thread of reasoning, it answered the second question about whether the right to adopt is a fundamental right of all citizens under Article 21 in the negative. It reasoned that:

“The Fundamental Rights embodied in Part-III of the Constitution constitute the basic human rights, which inhere in every person and such other rights which are fundamental to the dignity and well being of citizens. While it is correct that the dimensions and perspectives of the meaning and content of fundamental rights are in a process of constant evolution as is bound to happen in a vibrant democracy where the mind is always free, elevation of the right to adopt or to be adopted to the status of a Fundamental Right, in our considered view, will have to await a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country.”

The opt-in-or-opt-out approach should not have been treated by the Court as an interim measure towards the end of achieving the UCC. It is common knowledge that religious personal laws are strongly wedded to the religious-cultural identity of religious minorities in India, particularly the Muslims. Any attempt to change that using the UCC will be viewed by the concerned religious minority as a majoritarian excess and likely to create only conflict without in any manner enhancing the legal rights of the intended beneficiaries. The fact that the biggest vanguards of UCC in India are those on the extreme political right, whose support for UCC is intended to diminish the religious-cultural identity of the religious minorities rather than empower gender groups within them, calls for a substantial judicial and societal rejection of the UCC route to reform of personal laws.

ladakh - jammu kashmir - indiaThe reform of personal laws, on the issues where it is necessary, from within the Muslim community, in particular through pressure from Muslim women and men on the Personal Law Board, is possibly the most democratic and effective means to achieve the change in Muslim personal law in India. The mechanism of opt-in-or-opt-out of statutory law and personal law adopted by the Supreme Court can co-exist with the personal law without in any manner characterising it only as an interim measure.

For the same reason, the rejection of declaration of the right to adopt as a fundamental right because requisite consensus is not there, is in my view, not the ideal basis of rejecting this as a fundamental right. When the statue provides for a right, which can be accessed by one and all, there is no need to declare that right also as a fundamental right, unless there is a threat to that right from the legislature itself (which is not present in this case).

In fact, by allowing Muslim couples to adopt under statutory law despite the existence of a conflicting personal law, but using that same conflicting personal law as a basis for not declaring the right to adopt as a fundamental right shows the inherent contradiction in the judgment in answering the two questions posed before it.

Thus, if the Court did indeed have to decline from declaring the right to adopt as a fundamental right, the lack of necessity for such declaration, rather than existence of contrary personal law would have been a much better basis.

(Shadan Farasat is an Advocate-on-Record at the Supreme Court of India.)