The Uniform Civil Code (henceforth referred to as UCC) simply defined is a set of laws that will be applicable to all citizens of a country irrespective of their caste, creed, religion and color. The simple premise that UCC draws from is that there is no necessary connection between a citizen’s religion and the law that should apply to him. All matters of a “secular” nature should be ideally included in UCC, for eg. Marriage, Divorce, Maintenance, Inheritance, Adoption etc.
The much heated debate on UCC has many aspects to it. In this article however, I would like to focus on the constitutional arguments that can be made for the implementation of UCC.
K.M Munshi once addressing the Constituent Assembly said
The constitution of India uses but does not explicitly define the expression “religion”. Hence, going by the judgement pronounced in the SP Mittal v Union of India AIR 1983 SC 1 matter, in the background of the provisions of the constitution and judicial precedent, we can say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of the man. It must be capable of expression in word and deed, such as worship or ritual.
A mention here of the fact, that while interpreting the meaning of religion, our courts have given it a spiritual definition and in no way, has religion been connected to parallel courts, laws based on religion or personal laws of any community whatsoever. It confines itself to faith, belief, worship and religious ritual.
Now, getting into the constitutional rationale.
Article 44 of the constitution clearly states that the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. Unfortunately, this article comes under the Directive Principles of State Policy. The DPSP was supposed to be used as a yardstick by which the citizens could measure and rate the performance of the government. Hence, though not legally binding, it was suppose to be a guiding light for law makers. Over the years, it has lost its original definition and by virtue of not being legally enforceable, is not given much importance by our politicians.
It is a popular belief that UCC is only mentioned in Article 44 of the constitution. This is true. But, there are several provisions of the constitution, that don’t mention UCC, but justify it nonetheless.
Since, the greatest opposition to UCC is routed in “freedom of religion”, it becomes imperative to mention, that the constitution states the “religious freedom” cannot be enjoyed in and absolute and unrestricted way. There are certain lawful restrictions that are as follows:
ARTICLE 25 of the constitution states that the freedom of religion is, in general, subject to public order, morality, health and the other provisions of the constitutions.
Under Islamic law, it is still the privilege of the man to marry 4 women.Under the Hindu Law, a hindu woman is not entitled to claim a share in coparcener. And no right to partition of a dwelling house even if she is the legal heir. Congress leader Priya Ranjan Dasmunshi said the code could not be implemented in the present circumstances as the country's priorities were different. The implementation of such a code will divide the nation on communal lines, he warned.
I leave it up to you to decide whether these personal laws sound in tune with the morality and public order limitation to religious freedom.And whether the UCC in tune with the constitution would unite or divide the polity in India.
Article 25(2) states that despite the right to religious freedom, the state can pass laws providing for social welfare and reform and also to regulate or restrict any secular activity – economic, financial and political, etc. – even though it may traditionally be associated with religion.
Secular activities ordinarily include marriage, divorce, succession, adoption etc. But, even if one considers it to be traditionally associated with religion, the constitution provides for the state to reform and regulate such activities as mentioned in the stated provision. Hence, arguments on UCC cannot be of a religious nature at all – constitutionally speaking.
3. ARTICLE 51A(e) states that it is a fundamental duty of all citizens to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.
Though not legally binding, I have always wondered how common brotherhood and harmony transcending religious diversities is a possibility with different laws governing different religious groups. Also, is harmony truly achievable when the women of the community are oppressed behind the veil of personal laws?
After the commencement of the constitution, in the matter of Narayan Namboodripad v State of Madras AIR 1955 Mad 385 a court had examined the US principle of the “wall of separation” and concluded that in the Indian Constitution there are inconsistencies with the theory that there should be a wall separating the Church and the State.
Further in the matter of SR Bommai v Union of India (1994) 3 SCC 1 judges of the Supreme Court explained the concept of secularism in the constitution:
Excerpts of the judgement says: “When the state allows citizens to practice and profess their religion, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the state. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the state.”
If we in totality consider Article 25(2) explained above and the Supreme Court judgements, it becomes extremely evident that to the constitution, it is irrelevant as to which activity is traditionally considered to be rooted in religion. It is also evident, that law, pertaining to ALL SECULAR ACTIVITIES as the state views it, which includes marriage, divorce, etc., is explicitly a state matter and not a religious one. When, the activity in question is not even considered to be a religious matter, personal laws are rendered useless and also unjustifiable.
It needs to be mentioned here, that the constitution also states that certain special provisions which have been made for backward classes are not to be touched unless it has been rendered redundant. UCC would in no way infringe upon the special privileges provided for the betterment of any backward class/section of society.
It would perhaps only mean that all citizens, irrespective of their religious background would be treated equal in the eyes of the law. Considering the very foundation of our country has been laid on the pillars of secularism, equality and liberty, UCC would be the most constitutional and moral code to be implemented in a country like ours.
In the world of Shri Alladi Krishnaswamy Ayyar:
The much heated debate on UCC has many aspects to it. In this article however, I would like to focus on the constitutional arguments that can be made for the implementation of UCC.
K.M Munshi once addressing the Constituent Assembly said
“This particular clause which is now before the house is not brought for discussion for the first time. It has been discussed in several committees and at several places before it came to the house. The ground that is now put forward against it is, firstly that it infringes the Fundamental Right mentioned in Article 19 and secondly, it is tyrannous to the minority.”Unfortunately, the political discourse hasn't changed much since then. Before we get into the constitutional nitty gritties, a brief legal analysis of religion is imperative.
The constitution of India uses but does not explicitly define the expression “religion”. Hence, going by the judgement pronounced in the SP Mittal v Union of India AIR 1983 SC 1 matter, in the background of the provisions of the constitution and judicial precedent, we can say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of the man. It must be capable of expression in word and deed, such as worship or ritual.
A mention here of the fact, that while interpreting the meaning of religion, our courts have given it a spiritual definition and in no way, has religion been connected to parallel courts, laws based on religion or personal laws of any community whatsoever. It confines itself to faith, belief, worship and religious ritual.
Now, getting into the constitutional rationale.
Article 44 of the constitution clearly states that the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. Unfortunately, this article comes under the Directive Principles of State Policy. The DPSP was supposed to be used as a yardstick by which the citizens could measure and rate the performance of the government. Hence, though not legally binding, it was suppose to be a guiding light for law makers. Over the years, it has lost its original definition and by virtue of not being legally enforceable, is not given much importance by our politicians.
It is a popular belief that UCC is only mentioned in Article 44 of the constitution. This is true. But, there are several provisions of the constitution, that don’t mention UCC, but justify it nonetheless.
Since, the greatest opposition to UCC is routed in “freedom of religion”, it becomes imperative to mention, that the constitution states the “religious freedom” cannot be enjoyed in and absolute and unrestricted way. There are certain lawful restrictions that are as follows:
ARTICLE 25 of the constitution states that the freedom of religion is, in general, subject to public order, morality, health and the other provisions of the constitutions.
Under Islamic law, it is still the privilege of the man to marry 4 women.Under the Hindu Law, a hindu woman is not entitled to claim a share in coparcener. And no right to partition of a dwelling house even if she is the legal heir. Congress leader Priya Ranjan Dasmunshi said the code could not be implemented in the present circumstances as the country's priorities were different. The implementation of such a code will divide the nation on communal lines, he warned.
I leave it up to you to decide whether these personal laws sound in tune with the morality and public order limitation to religious freedom.And whether the UCC in tune with the constitution would unite or divide the polity in India.
Article 25(2) states that despite the right to religious freedom, the state can pass laws providing for social welfare and reform and also to regulate or restrict any secular activity – economic, financial and political, etc. – even though it may traditionally be associated with religion.
Secular activities ordinarily include marriage, divorce, succession, adoption etc. But, even if one considers it to be traditionally associated with religion, the constitution provides for the state to reform and regulate such activities as mentioned in the stated provision. Hence, arguments on UCC cannot be of a religious nature at all – constitutionally speaking.
3. ARTICLE 51A(e) states that it is a fundamental duty of all citizens to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.
Though not legally binding, I have always wondered how common brotherhood and harmony transcending religious diversities is a possibility with different laws governing different religious groups. Also, is harmony truly achievable when the women of the community are oppressed behind the veil of personal laws?
After the commencement of the constitution, in the matter of Narayan Namboodripad v State of Madras AIR 1955 Mad 385 a court had examined the US principle of the “wall of separation” and concluded that in the Indian Constitution there are inconsistencies with the theory that there should be a wall separating the Church and the State.
Further in the matter of SR Bommai v Union of India (1994) 3 SCC 1 judges of the Supreme Court explained the concept of secularism in the constitution:
Excerpts of the judgement says: “When the state allows citizens to practice and profess their religion, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the state. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the state.”
If we in totality consider Article 25(2) explained above and the Supreme Court judgements, it becomes extremely evident that to the constitution, it is irrelevant as to which activity is traditionally considered to be rooted in religion. It is also evident, that law, pertaining to ALL SECULAR ACTIVITIES as the state views it, which includes marriage, divorce, etc., is explicitly a state matter and not a religious one. When, the activity in question is not even considered to be a religious matter, personal laws are rendered useless and also unjustifiable.
It needs to be mentioned here, that the constitution also states that certain special provisions which have been made for backward classes are not to be touched unless it has been rendered redundant. UCC would in no way infringe upon the special privileges provided for the betterment of any backward class/section of society.
It would perhaps only mean that all citizens, irrespective of their religious background would be treated equal in the eyes of the law. Considering the very foundation of our country has been laid on the pillars of secularism, equality and liberty, UCC would be the most constitutional and moral code to be implemented in a country like ours.
In the world of Shri Alladi Krishnaswamy Ayyar:
“The article actually aims at amity. It does not destroy amity. The idea is that differential contributes to the differences among the different people of India. What it aims at is to try to arrive at a common measure of agreement in regards to this matter.... Today even without article 35, there is nothing to prevent the future Parliament of India from passing such laws. Therefore the idea is to have a Uniform Civil Code.”The implementation of Uniform Civil Code is the right and the duty of every citizen of India which has been denied for a very long time. The preamble to our constitution talks of a secular nation and true secularity can only be achieved when religion and spirituality remains a personal matter that does, in no way, interfere with state affairs.
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4 comments
agreed with all points.. Have shared on my wall and lets promote it to get this noticed by PMO as well..
ReplyThanks. Give me ur handle on twitter. shall follow. Not sure if I already do :)
ReplyA real nice read on UCC, which is much required and necessary flavor of the season, for sustained development of country at par. The impressive part of the article is it is based on facts on judicial judgement and not "Pigs can fly" opinions.
ReplyThe case presented here, surely strengthens the case of UCC.
P.S - Be frequent is raising such issues with fact based opinions, as lack of correction information always allows inconsistent arguments
- Jaymin Panchal (@jemin_p)
Agreed. Just passed out 12th.. But still know all these and i have also read that bjp came up with the ideology of uniform civil code and hindutva and Kashmir me article 370.. I agree with all your thoughts. I m gonna read much of political books in future.. Much interested in politics.. It seems ur article will help me some day.. Good luck for ur next article.
Reply👍🏻
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