This Article has been authored by Harsh Pati Tripathi, a second-year law student at NALSAR, Hyderabad.
India’s colonial past subsumes the history of Personal Law Systems in India. The ‘Hindu personal law’ and the ‘Muslim personal law’ were outcomes of the increasing infringement in the private domain of the household in India in early 20th century. Thus, after independence these laws were substantially imbibed in the Indian Constitution. These systems are not infallible and are often criticized for their patriarchal nature and gender discriminatory provisions. But the solution offered for it, incessantly and vehemently by the courts is nothing but a loose, unsubstantiated framework, a ‘Uniform Civil Code’ (UCC). A code that can be formed uniformly neither in practice nor precept. The article attempts to bring out the essence of how UCC is not a solution to the myriad problems in personal law systems. It further highlights the need for a ‘pluralistic’ nature of the personal laws in India rather than seeking a ‘unvarying’ form that is bound to fall short in catering to the diverse facets of Indian society which is not so ‘uniform’ in manner and content.
Uniform Civil Code: An imprudent pursuit?
Ever since the contention of ‘Triple Talaq’ rose in the legal domain, one single overarching solution has been offered to the myriad problems rife with religion based personal law systems in India: ‘A Uniform Civil Code’ -- that garnered the support of various feminist organisations, the courts, and a faction of the political spectrum. Nevertheless, it still stands fictitious.
In the case of Mohd. Ahmed Khan v. Shah Bano Begam, the Supreme Court underscored the need for a uniform civil code for the first time. The Court opined that the code would be elemental in solidifying national integration. But raising the need for such a code in the case was totally uncalled for, especially when a provision existed for the concerned case and other cases that were along similar lines. As held time and again, Section 125 of the Code of Criminal Procedure is applicable across the board to people of all faith irrespective of the personal laws that govern the stakeholders.
The Court mentioned the need for a ‘common code’ yet again when cases concerning Hindu men abandoning their spouses without divorce and changing their faith to Islam only to practice polygamy were brought before it. A relevant instance of the same is the case of Sarla Mudgal, President, Kalyani & Ors. v. Union of India & Ors.. The Court failed to articulate in a requisite manner, as to why there was a need for a separate code (which the court intended to be formed by considering the Hindu Code as a paradigm), when to tackle such deviances, the legal system is rife with provisions and principles. Not just this, the Court’s observations were flawed which instead of castigating the men in the concerned case went to the extent of demonizing ‘Muslims’. It opined that the people living in India after the partition are well aware of the fact that the Indian leaders never assented to a ‘two-nation theory’ and thus no religious community can compartmentalize its adherents down religious lines. It was observed that there is a clear inducement to a Hindu man who wants to practice polygamy, to convert to Islam. The ideals of ‘legal pluralism’ were completely negated while making such observations.
The court in another instance, again felt the need to emphasize on the absence of a code in the case of ABC v. The State (NCT of Delhi). Here, the contention revolved around a Christian child whose guardianship status was unclear. It was mystifying to understand why the Court could not contemplate that a simple amendment in the ‘Guardians and Wards Act’ would resolve the contention, without the assistance of a common code.
In light of these judgements, it can be safely presumed that the courts neither have a stable framework for the institution of such a code, nor a substantial ground that mandates the need for a code to be applied upon. In the aforementioned cases along with numerous more, the court adheres to the constitutional directive of Article 44, which talks about a uniform civil code, as if the lack of a ‘common code’, and not misogyny and the patriarchal nature of personal laws in India is the biggest concern. The courts fail to realise that Article 44 per se does not form the nature and substance of a common code. It has no clear conception of what the ‘uniform civil code’ would be. Even the bastions defending the ‘code’ express its form and content in very basic terms that constitutes no substantial framework. Moreover, practicing and professing personal laws in India, under Article 25 of the Constitution has been deemed to the status of a ‘Fundamental Right’, while having a ‘uniform civil code’ is only one of the Directive Principles of State Policy, standing contradictory to that right by infringing in the domain of personal law derived from religious sources. Even the Supreme Court has legitimized the relevance of the former over the latter. In the famous case of Minerva Mills Ltd. v. Union of India (1980), it was held by the Court, “to destroy the guarantees given by Part III (fundamental rights) in order purportedly to achieve the goals of Part IV (directive principles) is plainly to subvert the Constitution by destroying its basic structure.”
Personal Laws: A quest for a pluralistic identity
The courts have time and again opined that while structuring the framework for a uniform code, the Hindu code should be considered a paradigm for the same, completely disregarding the ‘un-uniform’ aspects of the Hindu Code. Hindus practice and profess various customs and traditions that are different in different parts of the country. It is revered in the southern parts of India to marry amongst one’s own close relatives and kin while the same is explicitly prohibited by the Hindu Marriage Act of 1955. Daughters were not given coparcenary rights till 2005. It is still not given to the wives. Moreover, in cases of failures in procreation by the couple, the property of both husband and wife goes to the parents of the husband.
Furthermore, even the legitimacy of a marriage depends upon the customs and rituals rife amongst various diverse Hindu communities in different regions of the country. For instance, the right to inheritance is different for Hindu communities in different states (Kerala and Tamil Nadu). Customs and traditions determine who is capable of adopting and what manner and requisites are needed to be conformed to. In fact, a substantial number of provisions do not even apply to the members of the Scheduled tribes (for instance, “The Hindu Minority and Guardianship Act of 1956”). The argument employed by the court that “since Hindus are governed by a uniform law, why not everyone else” is perplexing and unobservant because the court fails to see how the Hindu Code itself is not so uniform. It does align certain facets of ‘Hindu personal law’ but is always wavering when it comes to traditions and customs, rendering them unaltered. Similarly, the Muslim and the Christian personal law systems too are not uniform in their application. This is evident in the case of the local customs, rituals and traditions of Mizoram, Meghalaya and Nagaland, which are safeguarded by the Constitution of India.
It is imperative to understand the motive of the framers of the Constitution who put the domain of ‘personal laws’ under the Concurrent List. By doing this, they provided the requisite flexibility to all the States to form a framework for the implementation of such laws, keeping in mind the customs and practices of the people of that region. They never intended to structure a code that could have a blanket application on people from various segments of the society. For instance, laws concerned with ‘anticipatory bails’ are different in different states. Provisions in Code of Criminal Procedure, Motor Vehicles Act, Indian Penal Code have been amended or made applicable in an alternative fashion, time and again by the States. Despite the Centre emphasizing the relevance of the hefty fines, the Motor Vehicles Act was amended by the state government of Gujrat, thereby reducing the fines. This affirms the vanity of conceptualizing a uniform law for the entire nation.
India is not a nation where uniform ideals are a pragmatic option everywhere and every time. It is a nation instilled with colours of diversity and traditions. Irrespective of their religious identity, people in this nation are adherents of innumerable customs and practices. Thus, the plausibility of a blanket law governing every aspect of such a multifaceted society is inconceivable. A quest for a pluralistic identity of personal laws is of paramount significance. Furthermore, the personal law systems, be it Hindu or Muslim are rife with archaic notions and provisions that are substantially not in conformity to the changing times and values of the society. It is no contention that they are discriminatory and patriarchal, and necessarily have to be envisaged in a manner that is more democratically sound and progressive in vision.