Unformed Civil Code
By Shaan Katari Libby
Most countries—France, the UK, the US, Australia, to name a few—mandate that whatever religion you practice, you also abide by the laws of the land you reside in—civil laws and criminal laws—regardless of your citizenship and faith. One could liken it to any educational institution, where everyone has to follow certain rules regardless of their individual backgrounds or beliefs.
If done sensitively, the implementation of a uniform civil code (UCC) encourages uniformity and consistency in the judicial system, providing a common set of values, civil laws, streamlining the legal system and removing the burden of maintaining different religious legal systems. India has done remarkably well to date by keeping all these systems in place. It has, however, caused inequality and discrimination as also cherry picking of convenient laws by those who wish to play the system.
Speaking as a completely secular Indian, hailing from a mixed background (a Muslim mother and a Hindu father, and now married to a Christian)—I strongly believe that we do need to come under one umbrella of laws. The State should have nothing to do with religion—keeping religion far away from politicians should be the goal, and hence having a UCC that is clear and transparent and has taken into account the status quo as best it can, would be a panacea.
Let us look at some of the thinking of those who actually wrote the Constitution of India: The UCC appears in Article 44 under Part IV of the Directive Principles of State Policy in the Constitution—stating that the State shall endeavour to secure for citizens a UCC throughout the territory of India.
“I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field,” said BR Ambedkar in a discussion on implementing a UCC during a Constituent Assembly debate. He even envisioned a (rather impractical) voluntary code as well, lest a UCC was to upset sections of society, namely Muslim leaders: “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.”
On December 2, 1948, Ambedkar said during a lengthy discussion on Article 13 of the draft Constitution dealing with the fundamental right to profess any faith that “it is quite impossible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the State”. “We have this liberty in order to reform our social system, which is so full of inequities, so full of inequities, discrimination and other things which conflict with our fundamental rights.”
Support for a UCC has been forthcoming by academics and the courts alike. Dr Tahir Mahmood in his book Muslim Personal Law (1977 edition, pages 200-202), has made a powerful plea for framing a UCC for all citizens of India. He says: “In pursuance of the goal of secularism, the State must stop administering religion based personal laws”. He wants the lead to come from the majority community, but, we should have thought that, lead or no lead, the State must act.
In the case of Mohd. Ahmed Khan vs Shah Bano Begum And Ors (1985), Justice YV Chandrachud said: “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law.”
Support for such a code was then reiterated: “A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” The Supreme Court decided that as per Section 125 in the Code of Criminal Procedure, 1973, dealing with orders for maintenance of wives, children and parents, Shah Bano must be provided with living expenses. The then Chief Justice YV Chandrachud said that UCC would end the dissimilarities in the Indian law which would help in establishing national unity. Hence, the Supreme Court had directed Parliament to make law related to a UCC.
In the case of Smt. Sarla Mudgal, President and Other vs Union Of India & Ors (1995 SCC (3) 635), the Supreme Court urged the government to secure a UCC based on the model of the Hindu code to protect the abused and achieve national solidarity. This was a batch of four cases—all concerning conversion to Islam in order to take a second wife. It was held by Justice Kuldip Singh that: “A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract a second marriage. Conversion to Islam and marrying again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494 IPC. Any act which is in violation of mandatory provisions of law is per-se void.
The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the statute if the second marriage of the convert is held to be legal.”
It was also mentioned that: “Successive Governments till-date have been wholly re-miss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.”
A request to the government of India was made to have a fresh look at Article 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
Answering the questions posed: “the second marriage of a Hindu-husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate-husband would be guilty of the offence under Section 494 IPC.”
“The political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mohammedans. The 1772 regulations followed by the regulations of 1781 whereunder it was prescribed that either community was to be governed by its “personal” law in matters relating to inheritance, marriage, religious usage and institutions.
“So far as the criminal justice was concerned, the British gradually superseded the Muslim law in 1832 and criminal justice was governed by the English common law. Finally, the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British rulers into two states on the basis of religion.
“Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation—Indian nation—and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages, etc., only under the Regulations of 1781 framed by Warren Hastings. The Legislation—not religion—being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India.”
In the case of Lily Thomas vs Union of India and ABC vs The State on 5 April, 2000 (NCT of Delhi) (2000) 6 SCC 224—here again, the husband converted to Islam solely for the purpose of remarrying. He threatened his first wife with having to live with his second wife if she did not accept the mutual consent divorce offered. He did not practice the Muslim rites nor did he change his name or religion and other official documents. The petitioner asserted that her fundamental rights had been compromised—as guaranteed by Article 15(1) not to be discriminated against on the ground of religion and sex alone, and that she has been discriminated against by that part of Muslim Personal Law.
Justice Sagir Ahmad pronounced the order stating: Considering the law laid down by Chagla, J. in Robasa Khanum vs Khodadad Irani case, where it was held that the conduct of a spouse who converts to Islam has to be judged on the basis of the rule of justice and right or equity and good conscience. A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute “where the parties are Muslims” and, therefore, the rule of decision in such a case was or is not required to be the Muslims Personal Law”. In such cases, the Court shall act and the judge shall decide according to justice, equity and good conscience. Hence “The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494 IPC.”
Also, assuming that a Hindu husband had a right to embrace Islam as his religion, he had no right under the Act to marry again without getting his earlier marriage under the appropriate Act dissolved. Without so doing the second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and void with the second wife being a concubine and children illegitimate.
Besides deciding the question of law regarding the interpretation of Section 494 IPC, one of the judges (Kuldeep Singh, J) after referring to the observations made by this Court in Mohd. Ahmed Khan vs Shah Bano Begum and Ors requested the Government of India through the prime minister to have a fresh look at Article 44 of the Constitution of India and “endeavor to secure for the citizens a uniform civil code throughout the territory of India”. In that behalf, direction was issued to the Government of India, Secretary, Ministry of Law and Justice, to file an affidavit of a responsible officer indicating therein the steps taken and efforts made towards securing a UCC for the citizens of India.
On the question of a UCC, RM Sahai, the other judge constituting the Bench, suggested some measures which could be undertaken by the government to check the abuse of religion by unscrupulous persons, who under the cloak of conversion were found to be otherwise guilty of polygamy. It was observed that: Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. It was further remarked that: “The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with the Minorities Commission examine the matter and bring about a comprehensive legislation in keeping with the modern day concept of human rights for women.”
In the case of John Vallamattom & Anr. vs Union of India (2003) 6 SCC 611 , the Supreme Court declared Section 118 of the Indian Succession Act, 1925, unconstitutional. Justice Khare said: “It is mentioned in Article 44 that the State of India will strive to provide Uniform Civil Code to all citizens in its entirety. But it is said that Article 44 as mentioned in the Constitution has not been implemented properly. A Uniform Civil Code would help in establishing national integration by avoiding contradictions on the grounds of ideologies.”
Certain steps have already taken place towards establishing a UCC. The decision to implement the Juvenile Justice (Care and Protection of Children) Act, 2015, permits Muslims to adopt children—something that is not possible under Muslim personal law. The Act consolidates and amends the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social re-integration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided, and institutions and bodies established, herein under and for matters connected therewith or incidental thereto.
Under the UCC, ideal laws will be put forth, which will protect the personal rights of all citizens irrespective of religion, which seems to be the need of the hour. In reality, this is the foundation stone of secularism. Such progressive reforms will not only help to end discrimination against women, but also help in strengthening the secular structure and encourage integrity. While there is penal code in our country which is equally applicable to all without considering the religion, caste and domicile, there is no uniform law in our country with regard to divorce and succession and these subjects are controlled by the personal laws.
The Uniform Civil Code in India Bill, 2018, was proposed by MP Chandrakant Khaire. He is a member of the Shiv Sena from Aurangabad. The Bill proposes to provide for the constitution of a National Inspection and Investigation Committee for preparation of UCC and its implementation throughout the territory of India. It envisions a common civil code or common law for every citizen residing in India, irrespective of religion and caste.
This Committee would be funded to carry out the above task. It would comprise—a chairperson, who has been a retired chief justice of India, the Union minister of home affairs—ex-officio member, the Union minister of law and justice, one member nominated by the central government having adequate knowledge and experience in law, and one member to be appointed by the central government from the Indian Administrative Service. The term of office of this Committee is three years. This would at first glance appear short for the mammoth task at hand, and there appears to be no staggering in place—i.e. a rolling calendar of replacements so as to pass on the baton in a fluid manner rather than a short sharp shock. The Election Commission by comparison has a six-year term.
The UCC as proposed by this Bill is to be applicable for marriage, divorce, succession, adoption, guardianship and partition of land and assets on all citizens without any discrimination. It seeks to ensure the right to equality as guaranteed under Article 14 and prohibition of discrimination of any citizen on the basis of religion, caste and gender as referred to under Article 15 of the Constitution. A key provision is for gender equality to be implemented under the UCC; and the substitution of the personal laws (laws based on religious texts and traditions) by the UCC.
The Bill sounds logical and in keeping with what the founders of our Constitution had in mind. There are, however, some vague and worrying inclusions such as the following: “If any difficulty arises in giving effect to the provisions of this Act, the Central Government may make such order or give such direction…as may appear to be necessary or expedient for removing the difficulty”. These sound like they could be almost draconian in application.
The UCC shall have effect overriding anything inconsistent, via rules that shall be made piecemeal by the central government in order to carry out this Act. Abolishing triple talaq is for instance one such that has already come into force. Another area of potential concern: Every rule made under this Act will come into force immediately, and only then be put before each House of Parliament, while it is in session, and any modifications shall thereafter have effect; however it would not affect the validity of anything previously done under that rule.
This method sounds disorganized and haphazard. If a rule is to come into force, one would expect it not to take the form of an ordinance, but instead to be ratified by both Houses before it comes into force. Having waited 75 years for the UCC, waiting a little while longer will not be an issue.
To end, the words of Justice Chandrachud in the Shah Bano case are indeed appropriate. There are bound to be “difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”
—The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With research inputs by Sreya K, advocate, and Mahesh P Sudhakaran