The Conundrum between Uniform Civil Code and Personal Laws

In a country as diverse as India, the conundrum of freedom of religion and right to equality has existed since the very inception of India as a constitutional democracy. While discussing the scope of protection of Rights of Minorities to establish and administer educational institutions of their choice, in 2002 the Supreme Court of India, in a judgment⁵⁰ by an 11-judge bench (one of the larg­est benches the Supreme Court of India has constituted in the past), narrated the contemporary position of its diversity in the following words:

The one billion population of India consists of six main ethnic groups and fifty-two major tribes; six major religions and 6400 castes and sub-castes; eighteen major languages and 1600 minor languages and dialects.

There are other paragraphs of the judgment which are relevant in this context.⁵¹

More recently, on 31 August 2018, the Law Commission of India recorded the diversity of the country in terms of the following,

While diversity of Indian culture can and should be celebrated, specific groups, or weaker section of the society must not be dis-privileged in the process.

It also recorded that a ‘United’ Nation need not necessarily have ‘Uniformity’.

It is necessary to give some background to the basis on which the issue of Uniform Civil Code is under discussion at the present time. After a long debate in the Constituent Assembly (for framing the Constitution of India), Article 44 was made part of the Constitution in Part IV, i.e the Directive Principles of State Policy Section which says that ‘the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India’. While discussing the requirement of such a provision in the Constitution of India, it looks like the debate of the members were in two opposite directions. Members who opposed such mention in the Constitution stated that the right of a group or a community of people to follow and adhere to its own personal law was in the nature of funda­mental rights and this provision should only remain in the statutory and justicia­ble fundamental rights. One member⁵² stated that ‘for creating and augmenting harmony in the land it is not necessary to compel people to give up their personal law’. Another member⁵³ advanced his argument by stating that ‘each community, each religious community has certain religious laws, certain civil laws insepa­rably connected with religious belief and practices’ and accordingly his view was that in framing Uniform Draft Code theses, religious or semi-religious laws should be kept out of its way. He expected that a time may come in future when

the civil law would be uniform by stating that the issue of Uniform Code was not a matter of ‘mere’ idealism but a question of ‘stern reality'.

On the other side of the argument, one member⁵⁶ stated that he wanted to ‘divorce religion from Personal Law, for what may be called social relations or from the Rights of the parties as regards to inheritance or succession’ and further stated that ‘the house must unify and consolidate the Nation by every means without interfering with the religious practices.’ By citing diversities amongst Hindus, he also opined that it was not merely a question of minorities in India but also affected the majority. Another member⁵⁷ propagated the issue of adaptability by saying that the community needs to adapt itself to changing times and stated that the Hindus were willing to take a lesson from the minority and adapt their Hindu laws and take a leaf from the Muslims for the purpose of reforming the Hindu laws. While participating in the discussion, Dr. Ambedkar referred to the pre-1937 position of India to state that in large parts of the country, the Muslims to a large extent were governed by Hindu law in a matter of succession; only in 1937 did the legislature intervene to pass an enactment applying the Muslim Personal Law to the rest of India. The example of Kerala (North Malabar, the Murumakkathayam Law) was cited.

Rev. J. J. M. Nichols-Roy, a tribal from the Khasi hills, placed the demand for autonomous governance in the tribal regions in the Constituent Assembly. The demand was opposed by fellow members on the ground of division and instigating communism. Roy was accused of proposing a “Communistan” on the lines of Pakistan.⁵⁹ Roy made some interesting submissions. He stated that, “the first principle for bringing about a feeling of reconciliation between people who are estranged from one another is that one must place himself in the place of another.”⁶⁰ The debunking of myth of tribal inferiority initiated the pro­posal being accepted and the Sixth Schedule being added to the Constitution of India.

Considering India’s pluralistic principles, vast diversity and multicultural­ism, it was realised by the makers of the Constitution that laws in India are not governed solely onreligious premises but vastly on regions. With these views in mind, personal laws remain in the Concurrent List of the Constitution of India, i.e.

Part III of the Constitution of India contains fundamental rights of a person, citizen and individual. Under Articles 25 and 26, there are various counterargu­ments which lead to connect with personal law, at least of Muslims. However the Supreme Court of India,⁶⁴ in a case of Hindu Endowment, has sought to dispel this aspect by saying that the provisions in Part III of the Constitution does not touch upon the personal laws of the individual. In this judgement the court stated that in applying the personal laws of the parties, judges could not introduce their own concepts of modern times but should have enforced the law as derived from recognised and authoritative sources of personal law (which was Hindu law in that case); i.e., should have referred to Smritis and commentaries, as interpreted in the judgments of various High Courts, except where such law is altered by any usage or custom or is modified or abrogated by statute.

Article 25 is subject to public order, morality and health and further subject to regulating financial political and other secular activities which may be associated with religious practices.

Every religious group is based upon an established faith relatable to written text or continuously practiced oral religious teachings and diktats practiced for a long time. In that process every religious belief of a denomination or section thereof develop some kind of moral principles which we may call ‘religious or denominational morality’. This concept of denominational morality will call for understanding the logic and reasons of a religious order or command within the denomination rather than taking out one issue from religion and comparing the same with the general principles as have emerged in modern times and the notion of equality which has emerged out of the concept of constitutional morality. For instance, the religious texts of inheritance and succession amongst Muslims granting a defined right to women for succeeding in the property of her relatives vary. In succeeding to a property of her father, the daughter has half a share of her brother. On face value, it appears to be discriminatory between the brother and the sister. However, one agrees or not, there is very sound reason available in the religious text. To examine and discuss this issue, the Court and legislature should not discuss only the logic of modern times, which we call ‘constitutional morality’, and ignore the concerned religious texts which are equally important in the process of decision making.

The Law Commission of India highlights through its consultations with women’s groups that religious identity is important to women and personal laws along with language, culture etc. often constitute a part of this identity and thus constitute an important expression of ‘freedom of religion’. The argument of personal laws being forced upon women holds no water. The Commission, after a thorough analysis, makes an important point of urging the legislature to first consider guaranteeing equality ‘within communities’ than equality ‘between communities’.⁶⁵ However at the end of the Report,⁶⁶ the Commission proceeded to suggest a series of amendments to personal laws, particularly with respect to succession and inheritance. This part of the report appears to be at variance with the assertion of continuance of community-based personal laws as it would seri­ously entail the encroachment of religious personal laws. This suggestion of the Commission is again based on the generally understood notion of equality ema­nating from the principle of constitutional morality.

A 2016 Pew Research⁶⁷ report suggests that globally, women are more reli­gious than men. Interestingly, except Hinduism and folk religions, where women are less religiously affiliated than men of their communities, all major religions show women as more religiously affiliated. Should these women not be allowed to practice their faith just because our ideas of morality and life are different from these women and communities? The mainstream notions of morality, equality and life cannot dictate practices of people.

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