Bharatiyas deserve a Uniform Civil Code

Lamentably, hostility towards the government, let alone the extensively disseminated misinformation, hinders any potential progress. Recent contentions over the Uniform Civil Code are a consequence. That dissensus persists among the populace, which, among the members of the Constituent Assembly, led to an impasse, which then witnessed the concept incorporated into the supreme law, though unenforceable.

In several rulings, the Bharatiya judiciary has emphasised the importance of a uniform civil code, urging the government to implement the directive principle, with Prime Minister Modi also backing its adoption a few months ago. Although half a decade ago, the Law Commission rejected the idea of a common code, over the years the need for a discussion has arisen again, which underscores the gravity of evaluating the feasibility of a uniform civil code in Bharatiya society and exploring the potential benefits it could bring.

Contemplated as an authoritarian imposition of Hindu majoritarianism with the ultimate object of eliminating minorities and their cultures, misapprehensions as regards a common code infringing on religious freedoms pervading Bharat’s political climate come off as absurd. To emancipate those prejudiced, eliminate derogatory provisions, and ensure homogeneity, a uniform code would be implemented, streamlining the sphere of personal laws and establishing what would be equality and inclusiveness in toto while concurrently cherishing the precepts of each religious group without favouring one over the other. It will improve and simplify the exploration of family law from a legal perspective.

The terminology “common civil code irrespective of religion” in the draft Uniform Civil Code Bill 2018 exasperates hysteria about a Hinduized code forcing a Muslim or a Christian to perform Saptapadi. Unqualified similarity is neither reasonable nor expedient, for even that transgresses the Constitution and inspires a Stalinist Communist society, simultaneously, legitimacy cannot be attributed to an unfair religious custom under the garb of “personal choice”. Additionally, it is important to take diversity into account and approach it with caution. For example, Germany's marriage laws allow religious weddings but require registration with the registrar to be legally binding. Thus, supposed marriage reforms advanced by a uniform code could be related to the compulsory registration of a marriage, which has also been recommended by the Law Commission’s Report.

Crucial it is to recognise that the scope of “civil matters” stretches out to a variety of other fields such as adoption, property, and contracts, and not merely marriage and divorce. The antagonists must also argue that since each faith provides for contract law, such as the Vyavaharmayukha in Ancient Hindu Law, the Islamic concept of Aqd, or the Christian or Jewish law of obligations, why is there the Indian Contract Act—a uniform civil law for the whole nation dealing with contracts that apply to everyone alike—and why does not each faith decide the matter according to its principles? The Civil Procedure Code and the Domestic Violence Act, among others, are examples of such uniform civil legislation benefiting and not affecting the public. For what reasons should there be inconsistencies, ambiguity, and complications in family matters alone? Is there a reason why a Muslim or Christian couple should be denied the right to adopt a child because their religion prohibits it, and why should they have to adhere to various legislation instead of having clearly defined rules?

The "one nation, one law" policy is often criticised with the argument that even the criminal law, the uniformity of which is used as the basis of an argument for advocating for a common civil code, is not uniform and inapplicable in certain parts of the country. Indeed, it is. It is important to strive for maximum uniformity in laws, with some exceptions allowed. A comprehensive code that covers all matters evenly and is adequately detailed, even with some exceptions, would be a much better alternative to the current miscellany scenario. Why don’t the antagonists also reject the common criminal codes and instead call for their respective religious criminal rules, including outdated corporal punishments?

The codification of a few family laws does not necessarily indicate their perfection. Discrepancies and prejudicial clauses still drag on, some of which have been removed by court rulings, while others are anticipated to be deleted by a uniform code. In the John Vellamottom case, Section 118 of the Indian Succession Act was invalidated by the Supreme Court as it was discriminatory to Christians.

Promoting gender justice is crucial to the cause of a uniform law on personal matters. There is no denying the reality that many codified and uncodified personal laws disadvantage women. If, for instance, a Parsi woman marries a non-Parsi man, the child begotten from such a marriage will not be considered a Parsi, and such a woman would lose all rights to Parsi customs. In the case of Muslims, the horror of nikah halala has devolved into commercial practice. The Hindu Guardianship Act provides for the natural guardianship to be with the father and then the mother. Such inequitable provisions must be done away with. Regarding succession, a Hindu woman is entitled to the same share of the property as a Hindu male, while a Muslim woman is only entitled to half of what a man receives. As a result, a uniform code would ensure that a Muslim woman receives an equal portion, for her benefit, but without the application of Hindu inheritance rules.

Concerns surrounding Muslim personal law contribute materially to the discussion. Courts have deemed Section 494 of the Penal Code, which punishes polygamy except for Muslims, to be biased, and this was the point of dispute in the erroneous judgement of Narasu Appa Mali, which has yet to be reversed and has posed serious issues in dealing with the question of personal laws. The age of marriage remains debatable as well. These challenges can only be rectified by enacting an exhaustive code that provides social justice to all groups, regardless of religion or gender. The All-India Muslim Personal Law Board, ignorant of the fact that even some Muslim countries like Turkey under Kemal, established uniform secular legislation to get rid of such practices, remains vehemently opposed to the notion of a uniform code, viewing it as a danger to religious freedom and contradictory to itself, the Board’s composition is unfavourable to Muslim women.

Similarly, the tribal subject, which is more regional than religious, deserves attention. Although the tribal concerns have been responded to by the government’s assurance as to the non-inclusion of the former within the said code, including them would work to their benefit. The North-Eastern states have constitutionally protected customary laws, and the District and Regional Councils of the Sixth Schedule areas have been given the power to regulate marriage, inheritance, and other matters. The multifarious customs of a diversity of tribes should be evaluated since it might be risky to presume them flawless. Law Commission’s White Paper mentioned that many tribal customs have provisions that are unjust to women. These can be rectified through a uniform code covering the laws for these tribes, making them progressive and facilitating their social inclusion. This will certainly not lead to their identity loss, as they fear. Did the introduction of the Hindu Code Bills or the outlawing of triple talaq affect the identities of Hindus or Muslims?  A prominent example can be Nagas' opposition to the 33% reservation for women in Urban Local Bodies, given their claim of immunity from Acts of Parliament. It is important to question the rationality and reasonability of it. Is it justifiable to exploit a safeguard intended to preserve cultural heritage to sustain an unyielding mindset? Why should Naga women, or any tribal woman, or any person for that matter, be subject to disparaging status in this modern state of equality and justice? Modernity and progressivism, to some extent and not to the anarchical extent of the West, have become quite necessary in all sects.

The adoption of a uniform civil code will undoubtedly be a difficult but necessary choice that, despite opposition, must be undertaken in light of the overall long-term advantage on a larger scale. Some decisions must be made regardless of how strong the opposition is because their application yields better results than their abandonment. The absence of a codified family law has resulted in uncertainty and discord in legal judgments. A prominent example of this was the Shah Bano case, in which the Supreme Court's pro-Muslim women verdict was overturned by the unfavourable Muslim Women Act enacted during Rajiv Gandhi's regime due to political reasons. This legislation was contested years later and eventually nullified by the Daniel Latifi ruling, which was subsequently reaffirmed in the Shabana Bano case.

The Goa Civil Code, often hailed as the sole uniform civil code present in Bharat, is nothing more than colonial legislation imposed by the Portuguese that is entirely undesirable in contemporary times. With its inequalities and bigamy provisions, it is completely unsuited for use as a model code at the national level.

Another alternative approach towards equality could be to repeal the Hindu code bills and all codified personal laws to allow each faith to have recourse to their religious texts. If each faith has the right to determine its family matters, why not the largest population? Why, pre- and post-independence, were incursions made in Hindu civil matters despite stiff resistance and not in those of the others for the fear of resistance? Prohibit widow remarriage and revive the Sati practice. Triple Talaq and child marriages should be made lawful once again. Polygamy should also be permitted for everyone who practices it. Prohibit divorce in Christianity and Judaism. Push women to their lesser status. Relegate the masses to olden times. That would surely satisfy the public. Or will it?