In 1950s Pt. Jawahar Lal Nehru was asked about non-promulgation of a Uniform Civil Code (hereinafter referred as UCC). He opined that the time and situation was not ripe enough to enact and enforce the UCC. Six decades later the status quo and associated question remains unanswered. Has the time for enactment of UCC arrived yet or not? Has our democracy evolved enough to give a judicial enforceability to the hallowed Directive Principle contained under Article 44 of the Constitution of India?
Apparently, arguments in favour of immediate promulgation of UCC might find more resonance. But an insightful analysis will present a grey picture which does not reflect the otherwise starkness of black and white. A discussion in this regard ought to be profound and healthy in characteristic because of the direness of the situation involved. Opinions formed ignoring every aspect and possibilities associated with any issue have disastrous repercussions. This issue is more significant as it pertains to domain of religion, politics, law and society. Essentially, secularism as a guiding principle of a state is at the core of the issue of UCC.
Secularism of the state is an essential feature of the Constitution as well as UCC. Hence, we need to analyse whether UCC will fortify or demolish the secular structure of our great country? Secularism, as envisaged by our Constitution does not connote segregation of religion from the state. Indian brand of secularism, in fact, is unique in the way that it provides no official recognition to any religion, but it rigorously imputes respect and space for all the religions. We as constitutional democracy must be proud of such a unique concept. Unlike in USA, where religion has no connection with state at all, Indian system ensures harmonious coexistence of various existing religions of the country.
Importance of religion in the Indian scenario cannot be diminished by any means. It is an existing reality which may better be dealt in acceptance than in oblivion. Especially state apparatus ought to deal it in the most sagacious way possible. The Supreme Court of India in its seminal judgment in S. R. Bommai v. Union of India, held the same view as stated in the preceding paragraph. It explains in detail the meaning of secularism in the Indian context.
Another term which is closely linked with positive secularism as intended by the Indian Constitution is cultural pluralism. Cultural pluralism widely signifies that every religious or social group is allowed its own cultural space, in which it has right to practice its own beliefs and traditions. Pluralism is quintessentially the backbone of a healthy and vibrant democracy. Constitutional principles explicitly provide distinctive status to all the religions in India. There can be no attempt on part of the state to violate the sanctity of principles solely on the ground that they relate to a particular religion.
Major argument which goes against UCC is that it was not mandatorily included within the enforceable domain of the Constitution by its makers only. It was just given a place of guiding principle, a North Star in the legal sky which still remains elusive. The intention which may be inferred from such a step is that UCC may be sought to be achieved only when the society reaches a point of consensus, chances of which seems quite bleak in the present political scenario. The similar concern finds reflection in the judicial words of Justice Gajendragadkar who in State of Bombay v. Narsuppa Mali held that Article 44 by necessary implication recognizes existence of different codes applicable to Hindus and Muslims in matters of personal law and permits their continuance unless the state succeeds in its endeavour to secure to all its citizens a UCC. The state has not been successful in this regard till date and no serious efforts seem to be made in this direction. Most unfortunately, there is a complete absence of an informed public debate on this issue. Any discussion which even takes place gets distorted by getting concentrated on the religious and gender lines.
In such a situation UCC may prove to be counter-productive. Enactment of any such code must be a based on comparative experience of communities. Right now, such a comparative jurisprudence is lacking acutely. Generally, it may be seen that those agitated about the UCC are concerned about secondary matters associated with it. In this process they forget what matters really. For successful implementation of a UCC it is necessary that a common level of civilization and common standards of decency must be applied to everyone. Such a state of people is hard to achieve in the present situation of glaring inequality on every front of life. I personally feel that this commonness among essentially heterogeneous society can be created only by respecting each others’ respective religious and cultural tendencies. Imposition of UCC which people do not approve unanimously will result in chasm impossible to bridge.
Personal laws mainly deal with matters pertaining marriage, divorce, inheritance, succession, adoption, maintenance, guardianship and custody of children etc. In our country, religion forms the basis of this law, owing its nexus probably to the intertwined cultural identity. Every community based on its obeisance to a particular religion comes under the application of such law. Religion is the soul of our nation. It is an undeniable fact that in absence of an informed consensus, even honest efforts towards amendment of morally reprehensible provisions may be deemed to be an act of desecration which may wreak havoc. Especially, in the case of minorities it must be given due respect and protection. Democracy fails if the majoritarian tendencies engulf minoritarian aspirations. This does not imply that minorities should be given undue advantage over the majority population. Astuteness of state is tested on the scale of balance maintaining an equilibrium of which can be achieved only by adhering to the process of negotiation.
We must not confuse religion with fanaticism while discussing about the UCC. Religion should not be construed as a synonym of fanaticism or as a plank to propagate social malice. Secularism as envisaged by the Constitution can be accomplished only by accommodating aspirations of different religious communities. Protection of interests and sentiments of people is the duty of the state and any failure in this regard is inexcusable. A law not accepted by its people is nothing more than a diktat of a despot.
Apart from the above stated socio-legal facts that there are many other issues which mar the chances of promulgation of UCC. Legal dilemma in form of whether to give priority to fundamental right to practice ones faith and religion over the directive principle under Article 44 is bound to hamper smooth passage of a Code if ever drafted. Example of Goa as a successful state in application of UCC is also not correct. No two states in India are similarly placed especially in the religious and cultural domain. Owing to the nature of politics in our country, the debate over UCC generally tends to convert into a communal issue of Hindu Law versus Muslim Law. Feminist interference also sometimes distorts the debate by advocating female chauvinism which can never be an effective antidote to male chauvinism. As a nation moving ahead on the pedestals of civilization and democracy, we need to come up with a comprehensive agenda before touching upon the sensitive issue of UCC. If done haphazardly, the result would be equally haphazard. Nothing is more destructive than imposition of a forced law over a free community. Shah Bano case and it political fallout which was ultimately tweaked honourably by the Supreme Court is the prime example of the practical difficulties associated with the legislative tinkering of the personal laws.
Law is the reflection of common consciousness. Savigny, the great jurist, opined that law must reflect Volksgeist, i.e. voice of the people. Law is a means to uphold the interests of the members of the society with minimum of friction, if conflict arises. Therefore, imposition of any law such as UCC without conforming it to the spirit of the people is bound to yield cataclysmic results. Religion and India are two sides of the same coin. They interplay at different stages in different manner with unmatched dynamism. Therefore, it must be borne in mind with utmost sanity that premature imposition of UCC will fracture cultural pluralism celebrated by immense diversity existent in India. Damage so suffered could not be plastered by resorting to any perceptible measure. Not every mistake provides us a second chance to correct it.
