Written by Hritam Saha
'All men are created equal.' Today, when a critic reads this science, he/she will ask why men but not 'men and women', and a critic who is a bit more critical will ask why not 'human', however, a realist will ask 'what happens after the creation, do we all remain uniform after birth?' A resounding NO answers the question because, after birth, some become Muslims, some Christians, Hindus, Jews, Parsis, etc. and if we step a bit further then some also become animals but still look like a human. Therefore, in our post-birth scenario, we get automatically distinguished despite continuing to look like a human perhaps continuing to act like a human.

Distinguishment

Different religions cite different sets of rules for their governance, and the mismatch perpetuates. This mismatch has been resolved by the United States of America, the United Kingdom, etc. India, via Article 44 of the Constitution, has also vowed to resolve the said mismatch.

Creators

To appreciate the creation, one has to understand the creators and the thoughts of the creators. Therefore, we have to delve into constituent assembly debates, which are the fertilizers of our Constitution, for understanding why and how the Uniform Civil Code found a place in the Constitution.

Process of creation

In the first draft of our Constitution, the provision of UCC was written under Article 35, and Article 25 (freedom of religion) was under Article 19.

Some additions to the provision of UCC proposed by the opposers of UCC read as under:

November 23, 1948- Constituent Assembly Debates

7.58.106 Mohammad Ismail Khan- ''Provided that any group, section or community or people shall not be obliged to give up its own personal law in case it has such a law."

7.58.123. Mahboob Ali Baig Sahib Bahadur- "Provided that nothing in this article shall affect the personal law of the citizen."

7.58.116. Naziruddin Ahmad- "Provided that the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law."

Therefore, if any of these amendments had been accepted then the Article 44 would have been-

"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
Provided that the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law."

The thrust of the opposers

The opposers of UCC argued that the Right to practice religion will be curtailed if Uniform Civil Code is introduced. They argued that even the British, who usurped the liberty of the Indians, did not dare to tinker with the personal law of the Indians. However to me, the British did so because to secure its rule in India, they were to divide the Indians into religious lines, and nothing could have done that better than undisturbing the contradistinctions in personal laws of different religions that acted as divisors. The relevant arguments read as under:

7.58.117 Naziruddin Ahmad- "...In Article 19 it is provided that 'subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion'. In fact, this is so fundamental that the Drafting Committee has very rightly introduced this in this place...In Article 19 we enacted a positive provision which is justiciable and which any subject of a State irrespective of his caste and community can take to a Court of law and seek enforcement. On the other hand, by the article under reference we are giving the State some amount of latitude which may enable it to ignore the right conceded. And this right is not justiciable. It recommends to the State certain things and therefore it gives a right to the State. But then the subject has not been given any right under this provision. I submit that the present article is likely to encourage the State to break the guarantees given in Article 19."

7.58.118- Naziruddin Ahmad- "I submit, Sir, there are certain aspects of the Civil Procedure Code which have already interfered with our personal laws and very rightly so. But during the 175 years of British rule, they did not interfere with certain fundamental personal laws. They have enacted the Registration Act, the Limitation Act, the Civil Procedure Code, the Criminal Procedure Code, the Penal Code, the Evidence Act, the Transfer of Property Act, the Sarda Act and various other Acts. They have been imposed gradually as occasion arose and they were intended to make the laws uniform although they clash with the personal laws of a particular community. But take the case of marriage practice and the laws of inheritance. They have never interfered with them...I submit that the interference with these matters should be gradual and must progress with the advance of time. I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come. We believe that the power that has been given to the State to make the Civil Code uniform is in advance of the time. As it is, any State would be justified under Article 35 to interfere with the settled laws of the different communities at once..."

The thrust of the supporters

The thrust of the arguments of the supporters of UCC was that personal law is subject to change. Some arguments read as under:

7.58.149 Shri K. M. Munshi (Bombay: General)- "I know there are many among Hindus who do not like a Uniform Civil Code, because they take the same view as the Honourable Muslim Members who spoke last. They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India."

7.58.166 B.R. Ambedkar- "My second observation is to give them an assurance. I quite realise their feelings in the matter, but I think they have read rather too much into Article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by some such method. This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Mussulmans who wanted that he should be bound by the Shariat Act should go to an officer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors. It would be perfectly possible for parliament to introduce a provision of that sort; so that the fear that my friends have expressed here will be altogether nullified. I, therefore, submit that there is no substance in these amendments and I oppose them."

We know that Article 44 reads as 'The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India', and therefore, no amendment was made to restrict the parliament from enforcing the UCC on all the citizens because any such restriction will be unnecessary. After all, Dr. Ambedkar prescribed that UCC should be introduced with a declaration that for those who accept UCC, UCC will apply to them only. If the parliament enforces UCC by omitting this declaration, the court can step on for materializing the intention of the Dr. Ambedkar, and any law giving effect to UCC will also face the test of Article 25.

Reconciliation between Article 25 and 44

Article 25 says that everyone has a Right to practice an act made a mandatory practice by one's religion, however, such practice shall not disturb public order, morality, and health. Articles 14, 19, and 21 of the Constitution have not been made subject to public convenience, therefore, such Rights are standing on a higher pedestal than the Right to practice religion as held by the majority in the Sabrimala case.

The subjection of the individual right to the freedom of religion under Article 25(1) to the other provisions of Part III was not a matter without substantive content. Evidently, in the constitutional order of priorities, the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III.

The most telling expression in Article 25 is that 'Nothing in this article shall affect the operation of any existing law or prevent the State from making any law providing for social welfare and reform' and UCC is a reform for society's welfare, and therefore, the enforcement of UCC is not restricted by Article 25.

Article 44 is not more powerful than Article 25 because the former does not give the Right to a citizen for enforcing it instead it is an enabling provision that empowers the state to bring a law, therefore, making UCC subject to Judicial Review including review under Article 25. Therefore, if UCC becomes an aspiration fulfiller of any Political Party then Judicial Review is staring at UCC's face. However, one also cannot say that Article 25 is more powerful than Article 44 because Article 25 has implied limitations as no freedom is absolute much less Freedom of religion as held by Justice Khanna in Additional District Magistrate, ... vs S. S. Shukla Etc, 1976 AIR 1207.

'Freedom under law, it may be added, is not absolute freedom. It has its limitations in its interest, and can properly be described as regulated freedom. In the words of Ernest Barker, (1) the truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be free.'

In Sabrimala, the apex court cited Adelaide Company v. Commonwealth, 67C.L.R. 116, 127 which says:

In such cases, as Chief Justice Latham pointed out, the provision for the protection of religion was not absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery.

Therefore, Article 25 regulates Article 44 and vice versa but does not dominate one another.

Is UCC a threat to Public Morality in Article 25?

A cattle of half-read and thereby half learned orators is sputtering that in a diversified country like India, UCC is a threat not aid to the Morality of the Citizens practicing different religions as religion teaches one morality, and if UCC is enforced then one cannot follow his/her religion. They are forgetting that in the past the morality of Hindu law had interpreted that women shall not have any right to their parent's property. Islam interpreted to declare that reiteration of a word three times can make a wife a man's ex-wife. Public morality is Constitutional morality as held in the Sabrimala case, and therefore, morality shall not be construed as the whim of a person, and therefore, UCC will be guided by principles of justice like the way Hindu law has endeavored to do justice via reforms.

'...the term public morality has to be appositely understood as being synonymous with constitutional morality...'

In Government of NCT of Delhi v Union of India, Justice Chandrachud observed the importance of constitutional morality as a governing ideal:

“Constitutional morality highlights the need to preserve the trust of the people in institutions of democracy. It encompasses not just the forms and procedures of the Constitution, but provides an “enabling framework that allows a society the possibilities of self-renewal. It is the governing ideal of institutions of democracy which allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly.”

Can the Court compel the enforcement of UCC?

No, The court in a catena of cases recommended to enforce UCC however, it cannot compel because the implementation of UCC is a fundamental but voluntary duty of the state but not the fundamental right of anyone. Courts have enforced fundamental duty Article 51A(g), which is not enforceable by law, by prohibiting firecrackers in Delhi for protecting the environment. The court could do it because Article 21 confers the right to a person to live in a healthy environment, and therefore, one's right to enjoy firecrackers can be made subject to one's right to live in a healthy environment.

Idiosyncrasies of Religions

Despite religious idiosyncrasies, two people from different religions can legalize their marriage under the Special Marriage Act which applies to all Indians including a foreigner. Therefore, it is a Uniform Civil law governing all marriages by registering the same. Bengaluru has witnessed a 300% rise in weddings under the special marriage act. In 2015-16, up to January, the number had touched 8,391 —306% increase from 2013-14 to 2014-15. That is an indication of where we are heading. The widely conceived opinion is that the Hindu Marriage is a sacrament that can only be materialized by rituals whereas both Muslim and Christian marriages are a contract between two intended spouses, and therefore, the latter respects the consensus between two persons. As it is, half-read is wrongly read, and when such is done by the intellectual boasters, then complex becomes more complex thereafter the most complex. Section 5(ii)/[a] of the Hindu Marriage Act says consensus between intended spouses is indispensable to make a marriage valid as a violation of the said provision would make the marriage invalid under Section 12(1)/[b] like the way violation of free consent under Section 10 of the Indian Contract Act makes it voidable under Section 19 the Indian Contract Act. Section 13B of the Hindu Marriage Act says when both the spouses are in consensus to end the marriage, they can end, and therefore, when the end can be by consent why not the start. In Dhanjit Vadra v. Beena Vadra AIR 1990 Delhi 146, the Delhi High Court cited observations of a division bench of the Andhra Pradesh High court: 'The Division Bench observed that Section 13B has radically changed the old concept of Hindu marriage being a sacrament by treating it as an ordinary form of contract which the parties can enter into and put an end to like any other contact by mutual consent and that the liberalizing trend of law in the matter of granting divorce by consent cannot be lost sight of by Courts in interpreting this section.'

Hence, the manifest balderdashes of the clairvoyants that substantial differences exist in the concept of marriage across religions, cannot become the precursor of UCC instead such shall be considered as mere mutterings.

Logical Marriage and Inheritance Laws

Girls become sexually mature between the ages of 10-14 and boys between 12 -16, however, the emotional maturity is not solely based on age, it develops on how much and to what extent and nature a person has been exposed to. Study says critical parts of the brain like the prefrontal cortex which helps curb risk-taking behavior, don’t fully develop until about the age of 25. This can account for why a lot of teen emotions often seem unpredictable. Age is important in marriage, however, sexual maturity cannot be the sole determiner in deciding what should be the minimum age for marriage, and mandating a marriageable age is nothing but setting idealistic climate numbers. Therefore, a logical marriage age must be of advice but not of mandate, and whether to comply with the advice must be left to the learned discretion of two persons. For making that discretion learned, imparting education and the opportunities for using it are indispensable. The logic of inheritance must be decided based on who are those who are most dependent on the deceased.

Goa's Uniform Civil Code is not so Uniform

Portugal ruled Goa for 450 years, from 1510 to 19 December 1961, and in 1961, Goa became a Union Territory. The Parliament authorized the Portuguese Civil Code, 1867, to Goa which can be amended and repealed by the competent legislature. This Portuguese Civil Code is now claimed as the Uniform Civil Code of Goa.

The Goa Civil Code prohibits bigamy– which is re-marrying during the subsistence of one’s marriage although Hindu men are exempted from committing bigamy as Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880 provides that a Hindu husband can take a second wife if his first wife has attained the age of 25 and no child has born out of their wedlock, and also if she has attained age 30 without having a son. Muslim men, who have their marriages registered in Goa, cannot practice polygamy under any condition. Therefore, equals are treated unequally, and therefore such is not uniform. There is also discrimination between Catholic and Non-Catholic Marriages. For the legalization of a Non-Catholic marriage, the ‘would be spouses’ first have to record their mutual willingness to marry each other before the civil registration authority then after two weeks, the contract of marriage is signed confirming the legality of the marriage. However, for Catholics, signatures in churches are considered sufficient for civil registration and they do not have to first record their mutual willingness before the final confirmation of their marriage by signature. Legal intricacies are alien to common people, and therefore, the wives of Non-Catholic marriages are often been discovered of remaining in the unbeknown that the Goa civil code requires a second confirmation through signatures, and so when a dispute arises, their marriages are found invalid. Many cases of bigamy through such frauds have been reported, according to an Indian Express report however due to the first marriage being invalid, the husbands have been left scot-free. Under Article 1 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880, customs of Hindus are preserved and exemptions from the Civil Code are given to Hindus, however, people from other religions are not been provided with such exemption.

Uniform Civil Code in other countries

Civil law finds its seed in Rome, and therefore, a uniform civil code is their brainchild, however, Rome has not refrained from persecuting the Roma community living in Europe who descended from a population that spoke a derivative of Sanskrit, the Praclito. Roma community is believed to have left India at around 1000 CE for Europe where they settled starting in the Balkans. The first Roma probably arrived in Italy in 1392 as a result of the Ottoman and Serbian-Christian battle in Kosovo. In 1984, following a revised accord with the Vatican, Christianity lost its status as the official religion of the Italian state (Rome) and subsequently, Italy became a secular state Despite the 482/1999 Law that protects linguistic minorities, the Roma community is not officially recognized, limiting the exercise of some political and cultural rights.

Despite the Napoleon Civil Code in France, it is only after a chequered history of battles that France resolved to discover a balance between privilege, equality, customs, and legal requirements via the Uniform Civil code. France is a secular country. The USA can be related a bit to India for understanding how to reconcile diversity. In the US, states are like independent countries as evident from Article IV’s Sections 1, 2, and 4 of their Constitution. Two types of law are there one is State law and the other is Federal law, each state is having its own Supreme Court whose decision on state law is final although every judge is bound by the Constitution of the USA as evident from Article VI, and the US Supreme Court’s decision in federal law is final. Therefore, despite the differences in laws prevalent in 50 states, the US Congress has made The Federal Rules of Civil Procedure that governs civil proceedings in the United States district courts. The rules were first adopted by order of the Supreme Court on December 20, 1937, transmitted to Congress on January 3, 1938, and effective September 16, 1938.

Way forward

As it was once famously said that- ‘A continuing existence of a balanced ratio of intellectuality and morality is the surviving factor for humanity.’ Taking a cue from this opinion, the UCC cannot be imposed only on intellectual considerations but the element of morality must also be there to balance the mixture so that it secures the survival of humanity but not its extinction. A process for balancing the mixture has already begun with the introduction of laws namely making the marriageable age of men and women the same, however, the age should advisory but not mandatory. The ban on hijab has not furthered the goal of uniformity and why so that is a topic of another day, however, before parting I quote the vision of Mr. Hussain Imam that he expressed on the hallowed floor of the fertilizer of this Constitution and that of Late Nanabhoy Ardeshir Palkhivala.

7.58.141. Mr. Hussain Imam- "...Sir, I feel that it is all right and a very desirable thing to have a uniform law, but at a very distant date. For that, we should first await the coming of that event when the whole of India has got educated, when mass illiteracy has been removed, when people have advanced, when their economic conditions are better, when each man is able to stand on his own legs and fight his own battles. Then, you can have uniform laws. Can you have, today, uniform laws as far as a child and a young man are concerned?"

India will continue to exist even when our place will forget us, and therefore, our actions are not intended for us or our descendants but for this country which is surviving and will be surviving civilizations after civilizations dark ages and dark ages.

―Excerpt from a Budget speech by Nanabhoy Ardeshir Palkhivala at Brabourne Stadium, Bombay.

TO MY COUNTRYMEN

who gave unto themselves the constitution
but not the ability to keep it,

who inherited a resplendent heritage
but not the wisdom to cherish it,

who suffer and endure in patience
without the perception of their potential

―Excerpt from Nanabhoy Ardeshir Palkhivala's book- We, the People: India, the Largest Democracy

Edited by Siddhant Sharma