The Directive Principle of State policy gives us Article 44 –The Uniform Civil Code which states “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The Directive Principles are mere guidelines to states and are not enforceable in courts of law if they are not fulfilled unlike the Fundamental Rights enshrined under the Constitution.
It is intriguing to see that the origin of the concept of Uniform Civil Code does not find its root in a British thought conception, they felt that India being a diverse nation she should be allowed to follow her personal laws based on the religious majorities at that time. So they let Indians have their freedom of self-governance as established under the Queen’s 1859 Proclamation, promising not to interfere in domestic and religious issues. Dr. B.R. Ambedkar tried to implement the Uniform civil Code, but his opinion was shot down because the importance of the concept was eclipsed by caste politics which made his view on this topic appear clouded and the parliament did not pay heed to the concept.
To put the uniform civil code in simple words suggests that all the citizens should follow the same personal laws irrespective of their religion. The debate about the uniform civil code is protracted; it was dragged into the spotlight during the Shah Bano case where secular laws were applied. This case had two major impacts one on the religious front of India one being a huge political mobilization against the judgement and the Muslim Women (Protection of Rights on Divorce) was born out of this judgement. The court steadfast in its decision and showed true independence of the judiciary by holding that §125 of IPC is applicable to everyone irrespective of their religious affiliation. This case brought into perspective that religion and politics can easily become a confused battleground wherein the victims suffer and will never see the light of justice.
The uniform civil code suggests that the personal laws should be based on a civil code and not on any religious scriptures. It widens the applicability and simplifies the process. Freedom and equality are the two words that stem the Uniform Civil Code.
But the problem is that the Uniform Civil Code threatens the secularism of India. But what is secularism?
Secularism, in the Western concept, can be defined as the separation of the institutions of state and religion, set in contrast to this is the definition of secularism in India. In India, it is accepted that secularism means treating all religions as equal. This furthers implies that state would take into consideration the religious norms and traditions when making certain laws. The constitution of India does not exactly define the relation between religion and state but we can observe its role in the personal laws in India. In the personal laws, mainly regarding marriage, divorce, adoption, inheritance and maintenance we follow different rules for people belonging to different religions. For example, there exists the Sharia-based Muslim Personal Law for the Muslims, the Hindu Marriage Act for the Hindus and the Special Marriages Act for inter-caste marriages. The problem with India’s definition of secularism arises when it has to respect unequal religious laws such child marriage, unequal inheritance, polygamy, extrajudicial unilateral divorce favourable to men etc.
For instance, minimum age of marriage according to the Hindu and Christian law is 18 but according to the Muslim law (Sharia laws) the minimum age of marriage is 12 which is child marriage. The All India Muslim Personal Law board has urged the government to let Muslim men marry the girls even if they are just 12. Indian government is urged to accept this under the protection and guise of personal laws, leading to a clash between morality and law. Some of the other problems arise because the definition covers only the major religions prevalent in India. In the Indian constitution, Sikhs, Buddhists and Jains are included under the same category as Hindus. So, what about these religions?
Under the Sharia Law (which has inspired the Muslim Personal Laws) the men are the ultimate masters. They can divorce their wives by just repeating the same word thrice (“talaq”), they can wed women under the age of 18, women are not entitled to equal inheritance and like a cherry on top, they can have multiple wives. Now, the All India Muslim Personal Law Board claims that not allowing the Muslim men to enjoy the above mentioned luxuries is a crime, as it steals their right to practice their religious traditions. The Islamic feminists believe that this all because of the “patriarchal” interpretation of what is mentioned in the Quran and request that need a chance to read the Quran and interpret it themselves.
The debate over the Uniform civil code boils down to a debate about whether the definition of secularism followed in India is ensuring the people of this nation their rights or is it blindly following the religious scripture. It goes back to 1840, when the Britishers decided that Indian personal law should be based on religious majorities. Aren’t our laws supposed to keep up with the evolving times? Aren’t our laws supposed to ensure freedom and equality? Can we really rely on religion to guide us in the path to attain equality? The need for the Uniform Civil Code is no longer an utopian idea and needs to see the light of day soon since the conflicts between religions are reaching new highs and politicians leave no stone unturned to ensure they make the most of the religious tensions. This code will ensure a better governance model for our country forcing politicians to work in order to gain peoples trust rather than exploit their religious sentiments. Further the apprehension that religion will take a back seat if this code comes in to force is unfounded since it does nothing but ensure that everyone has an equal right to justice irrespective of their sex and religion.
By: Ojas Shivakumar