Non-feasibility of uniform civil code!
By M.Y.Siddiqui
Successive Union Governments since Independence have engaged with the idea to enact a Uniform Civil Code (UCC) to ensure uniform civil code of conduct for all people irrespective of their castes, communities, religions, rites, rituals, customary practices, cultures and over all their diversity pursuant to Article 44 of the Directive Principle of State Policy in the Constitution of India which declares that the state shall endeavor to secure a UCC throughout the territory of India. But could not do so in the absence of consensus among political parties and civil society with public sensitivities attached to it. But given the fact that the ruling RSS Pariwar has included UCC in the election manifesto of the BJP, it has assumed importance currently as the ruling conglomerate have been making all the noises for it on the premises that ‘one size fits all’ formula. Properly read, Article 44 does not indicate that uniformity cannot be achieved by state legislations even though states may persuade the union government to enact UCC.
There are various irreconcilable discordant knots for a uniformity in cultures, diversities of religions, rituals, rites and ethnic conventions and practices.. For example, the tribals are up in arms against RSS Pariwar government’s resolute efforts to integrate them as Hindus. The tribes claim they are not Hindus. They are original inhabitants of India. Added to this, in 2017 Saira Bano case the Supreme Court while invalidating triple talaq both legally and constitutionally, the Chief Justice of India Justice Khehar and Justice Abdul Nazeer in the five-judge Constitution Bench held that the practice of ‘talaq-e-biddat is a constituent of personal law and has a stature equal to other fundamental rights. The practice cannot be set-aside on the ground of constitutional morality, through judicial intervention, urging absolute judicial restraint’. Indian Succession Act 1925 is optional but there is demand for making it binding on all communities and religious groups. Legal experts and social thinkers have called for removal of discriminatory features of the Indian Succession Act like the prohibited degrees in marriage as relatives one cannot marry is a carbon copy of the Hindu Marriage Act. Unlike that Act, it does not recognize the rule prohibiting marriages within the limits of relationship covering distant cousin. Under this Act, a Hindu can freely marry a second cousin though his religion prohibits it. But a Muslim cannot marry under the Act a first cousin, which his religion allows and it is a common practice in the community. Also, the rule of prohibited degrees can be relaxed on the basis of custom but not on the Special Marriage Act.
India is known for its multiplicity of religions, cultures, rites, rituals and practices, and the country celebrates its diversity. Within each group, there are sub-groups with variables within. Then there are constitutionally recognized minorities, Muslims, Christians, Sikhs, Jains, Buddhists, Zoroastrians (Parsis), each with distinct identities, rites, rituals, culture and life style with separate and distinct fundamental rights for their socio-economic and educational progress within the frame of national integration and mutual tolerance and co-existence.. Tribals are also distinct from Hinduism, as claimed by them. To reconcile all in a coherent whole binding them to common civil code, is widely apprehended that all of them will be subsumed by Hindutwa, not Hinduism, as Hinduism is perceived to be a larger than life, accommodative, tolerant and humane religion, unique to India and for that matter globally unparalleled. It is feared that the ruling RSS Pariwar’s Hindutwa with a common civil code will subsume all the minorities and tribes.
A compulsory UCC confronts complexity of great magnitude as it extends to all people of India. There exist substantial divergences. While Hindu law regards marriage as ‘sacred’, Muslim law regards it as ‘contract’. Additionally, different ways of life and religious rites exist among Hindus and Muslims. It would be almost impossible to bring out uniformity out of these. Similarly, Goa and Pondicherry, which still follow Portuguese and French civil law respectively, it would not be possible to bring them within the UCC. It would, therefore, be most difficult to proceed towards a genuinely constitutionally pluralistic version of the UCC as a compulsory code that must apply to all communities.
A compulsory UCC may have to be a subject to the constitutional discipline enforceable on grounds of violation of fundamental rights and essential features. It will be difficult to ignore the ringing words of the Law Commission of India which, while endorsing some more changes in personal laws to avoid impermissible discrimination in August 2018 noted that the UCC is “neither necessary nor desirable at this stage” in the country. Law Commission Chairman Justice B.S.Chauhan also said, “cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation”. Then there are fetters of the constitutional Article 51-A (f), the fundamental duty of citizens to cherish and preserve the composite culture of India. Nevertheless, India has marched progressively in a piecemeal way towards UCC. Contract law and criminal law are uniform for all people. So is the facilitative law like the Special Marriage Act, under which persons of any community may enter into civil marriage.
It will be germane to quote some excerpts from a letter of Prime Minister Jawaharlal Nehru of July 20, 1949 to Chief Ministers of States which, among other things, says, “Deliberate efforts to accelerate this process (regimentation) are hardly likely to succeed, they may deaden something that is bright and make lustureless what has been vital in our national life”. He goes on to mention, “Inevitably, even the external emblem of our life, like food and clothing differ somewhat with geography and climate… So are we to build the mighty structure of free and republican India, let us remember all these innumerable faces that India has and provide for them. Let us not try to remold any of them forcibly to conform to our particular perception of what India is”. Nehru’s word: India’s variety should be celebrated not coerced into some uniformity. How many of us have understanding and emotional appreciation of the tremendous richness and variety of India? Because we do not appreciate this, we often try to regiment India into a single pattern.
In sharp contrasts to calls of ‘one nation, one language, one election, one culture’ that people hear presently, Jawaharlal Nehru was at pains to emphasise “the ageless tradition of India which allowed each culture to have scope for growth and did not try to coerce it into a single pattern”. In view of such irreconcilable heterogeneous, diverse and multiple complexities that the Constitution of India postulates to bind as oneness of our people and oneness of the nation amidst the prevailing diversity has to be maintained in the overall interest of national integration, social and communal harmony!
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