SECULARISM VIS A VIS UNIFORM CIVIL CODE
Author: Prof. Dr. Mithilesh Vishwakarma, SSLG, Jaipur National University
Co-Author: Sunil Tiwari, Jaipur National University
ISSN: 2581-8465
ABSTRACT
The Author of the Research Article discusses the topic “Secularism vis-a-vis Uniform civil code at length. In this article, the author aims to throw light on the issue of Uniform Civil Code and its impact. The utterance of the following three-letter word is enough to enrage the country but what needs to be understood is that the Uniform Civil Code is the need of the hour and it is required as an instrument for national integration that would weigh down any form of disparity drawn on the basis of religious or social beliefs. The author intends to explain that the enforcement of the Uniform Civil Code will not violate any fundamental right and will only act as common law in matters of marriage, divorce, maintenance, succession, and inheritance. The author begins by first explaining the notion of secularism, in furtherance of which the concept is being traced back from its history. Moving ahead the Author then talks about the different variants of secularism and highlights how different the western model is from the Indian Model. The Author further talks about the Uniform Civil Code and how it has been conceived by the Indian Judiciary. It is observed that under various judgments the Supreme Court has expressed their concern towards the uplifting and enforcing of the Uniform Civil Code as it is imperative for promoting positive secularism in the country and to bring in a sense of togetherness and unity. The author then lays down the reasons why the Uniform Civil Code needs to be implemented immediately. Marital Laws, Maintenance and Inheritance Laws under Muslim Laws create disparity and therefore the Author concludes by identifying the issues revolving around the issue and that there is an undisputed need for implementing Uniform Civil Code in our Country.
1.0 INTRODUCTION
A reading of the Constitutional Assembly Debates[1] gives us a valuable insight into the minds of its members and the predicaments which guided their discourse. While B. Pocker Sahib Bahadur stated that the enactment of uniform civil code was tantamount to the murder of freedom of conscience and religious practice, Hussain Imam termed it as to bring antagonistic to India’s diversity. The end result of such an acrimonious debate was that Article 44, the agenda for uniform civil code was placed in Part IV of the constitution under the chapter, ‘Directive Principles of State Policy’ as another non-binding, non-justiciable guideline for the future governance of the country.
Article 44, which comes under the Directive Principles of State Policy of the Indian Constitution, provides that, “the state shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Thought more than 70 years have passed; this provision has not been implemented yet because of the diversified culture, background, religion, customs, and faith of India. Though India has a uniform Civil and Criminal Law; there isn’t a common personal law. Personal laws were based on scriptures, myths, and customs of each religious community in the country. There is uniqueness in each religion. The main problem of uniform civil code is that the combined personal law must respect and treat each religion equally giving adequate importance to each of its principles. Any compromise in any one of the religious principles will be hit by the Freedom of Religion guaranteed under Article 25 of the Constitution. The argument in favor of uniform civil code is that it will further strengthen the Indian nationalism and also make a great impact in addressing gender inequality, which is often considered to be the product of archaic personal laws prevailing in the country. However, the opponents argue that adopting a uniform civil code would lead to the tyranny of the religious majority, unnecessarily imposing alien law in minority. It is viewed as ‘cultural genocide’ with a great propensity to create communal flare across the country. Nowadays, the debate around adopting a uniform civil code is more emotive rather than reasoned and rationalized.
The Supreme Court of India has opined that uniform civil code can serve as an instrument for national integration by removing disparate loyalties to laws that have conflicting ideologies[2]. However, it can be safely stated that its absence has in no way jeopardized the same. The primary objection for the continuance of the separate personal laws is centered on the prospect of gender inequality. So the question arises as to whether they need for uniform civil code is only dependent on the problem of gender inequality of personal laws rather than to create uniform personal laws for the purpose of unity. Isn’t a more reformed separate personal law to remove gender discrimination sufficient? Such a view is also in line with the secularistic principle of India and Freedom of religion as guaranteed by the Constitution.
The first part of this paper analyses the meaning and context of secularism with specific reference to India. The second part gives an overview of the present status of uniform civil code in India for the purpose of a better understanding of the topic. The third part of the paper sorts out the gender discriminatory provisions of separate personal law and the paper finally concludes by stating whether, in light of naturalistic set up of India, is uniform civil code is really needed when the separate personal laws can be made free of gender inequality without compromising freedom of religion.
2.0 NOTION OF SECULARISM
The concept of secularism is not static but varies from time to time and place to place. It has to be understood in the context of one’s tradition, social and political condition. The secularism of renaissance was mainly concerned with the exclusion of church from the political and social sphere while secularism of reformation was obsessed with increased religious tolerance. India’s secularism characteristics were also influenced by its social and political conditions. Indians are religious people and a religion forms the substratum of their whole life. Hence, religion permeates law also. Lord Bryce has stated that “In Islam, Law is Religion and Religion is Law, because both have equal authority and the same source, being contained in the same divine revelation – a revelation which covers the whole sphere of man’s thoughts and actions”[3]. These remarks apply with indefinitely great truth and force to the Hindus. The word used to denote a law in the Sanskrit language is ‘dharma’ which is a set of rules ordained by religion in order to attain the ultimate goal of salvation. It is not only the source of legal rules is interwoven with religious rules but even the validity of legal rules depends largely on religious principles.
2.1 SECULARISM AND ITS HISTORY
Attempts were made, in the long history of India, to secularize the law. Kautilya’s Arthashastra, compiled in 300 B.C was one of the earliest codes of a purely secular character. It provided that King’s ordinance was of overriding authority in the decision of disputes and dharma comes last of all. Even in the strong, centralized government of the Mauryan Empire, the king’s edicts were given the force of law. All these were temporary and did not take root in the Hindu system. Manu, Yajnavalkya, which followed Kautilya, did not mention the king as a source of law. After 700 years, the king’s edicts made an appearance as a source of law in Naradasmritii. Yet, even there, it is stated that in cases of conflict between arthashastra and dharmasastra, the latter will prevail. In Mitakshara, the author Vijananeswara, without detracting from the scope and authority of dharmasastra, denuded many important religious rules and made their application dependent on secular consideration. He revolutionized the Hindu Law of inheritance and made the ascertainment of the legal heir on the basis of blood relation as opposed to a religious test of spiritual efficacy. Mitakshara proved that it is possible to extricate certain portions of Hindu Law from the enveloping mushes of religion and put them on a secular basis[4].
2.2 SECULARISM – DEFINED
Secularism is an elastic term and is subject to varying interpretations across different polities. Generally, secularism may be defined as the neutrality of states in matters relating to religion and creed. All secular states have one thing in common, they are neither theocratic nor do they establish a religion i.e. non-patronizing attitude of the state to any one religion[5]. Thus secularism defines the way in which the people of the country carry on their individual affairs as also their behavior towards others. Secularism is the first and foremost doctrine that opposes all forms of inter-religious domination and is opposed to all forms of institutional domination[6]. Put positively, it promotes freedom within religions and equality between, as well as within, religions. The plurality of society requires that there be some kind of neutrality pr principled distance. A secular state must be committed to the principles and goals which are at least partly derived from non-religious sources which include peace, religious freedom, and freedom from religiously grounded oppression, discrimination, and exclusion.
2.3 VARIANTS OF SECULARISM
2.3.1 WESTERN MODEL
Western secularism can briefly be described as on wherein there is complete segregation between religion and state activities because of the long conflict between the nobility and ecclesiastical classes to monopolize political power. It is mostly associated with the American model of secularism and envisages the exclusivity of religion and state. State policies cannot have an exclusively religious rationale and no religious classification can be on the basis of public policy. Anything to the contrary will be deemed to be an illegitimate intrusion of religion and state. The segregation is so complete that state intervention is not permissible even on grounds of social reformation. Western secularism has a rather individualistic orientation and religion continues to be a private matter and not a matter of state policy or law.
2.3.1 INDIAN MODEL
Indian secularism has a western and non-western origin. Unlike the underlying rationale of the church-state separation in the west, in India, the idea of peaceful co-existence of different religious communities has been the central idea behind the adoption of secularism as a goal. Indian secularism is subject to various interpretations and its complexity cannot be captured by the phrase “equal respect for all religions”. Secularism is much more than peaceful coexistence and tolerance. Nehru’s concept of Secular State was one that “protects all religion, but does not favor one at the expense of others and does not adapt itself any religion as the state religion”. Nehru’s idea of secularism was that all religious groups shall enjoy the same constitutional protection without any favor or discrimination. The Supreme Court has stated that “secularism is neither anti-God nor pro-God, it treats alike the devout, the antagonist and the atheist. It eliminates God from the matters of State and ensures that no one shall be discriminated against on grounds of religion. It emphasizes the ancient doctrine in India that State shall protect all religions but interfere with none”[7].
2.4 SECULARISM AND INDIAN CONSTITUTION
In confronting the staggering diversity, the framers of the Indian constitution sought to shape the Indian identity by adopting a “secular” state on the basis of three principles viz. Equality, neutrality, and liberty. According to equality, the State was to give no preference to one religion over another. Neutrality demands that the State did not interfere in religious affairs. The principle of liberty requires that the State should permit the practice of any religion within the limits set by other basic rights which the State is also required to protect[8].
At least, two different notions of secularism are implied from these constitutional principles. Firstly, there is an understanding of secularism in the western liberal sense (Church-State separation). The Indian Constitution accepts the liberal premise by leaving legislations related to the family at the private realm and so should be left outside the state; Secondly, principles imply an understanding of secularism as equal treatment of all religions by the state which makes possible the peaceful co-existence of multiple religions in one polity. In contrast to the liberal approach of Church-State separation, the second notion of secularism provides a permanent place for religion in politics[9].
3.0 UNIFORM CIVIL CODE – AN OVERVIEW
3.1 JUDICIARY ON UNIFORM CIVIL CODE
The Supreme Court first directed the Parliament to frame a uniform civil code in the year 1985 in the case of Mohammed Ahmed Khan v. Shah Bano Begum where Muslim women claimed for maintenance from her husband under section 125 of Cr. P. C after being given triple talaq from him. The Court upheld her right to maintenance from him under this section and observed that Article 44 remained a dead letter. Chief Justice Chandrachud observed that “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. The Shah Bano Judgment helped to mobilize public opinion in favor of uniform civil code and the greatest support came from women’s group.
The second instance in which the Supreme Court again directed the government of article 44 is the case of Sarla Mudgal v. Union of India. In this case, Justice Kuldip Singh opined that Article 44 has to be revived from the cold storage where it was lying since 1949. In S.R Bommai v. Union of India, it was stated that India follows a concept of “positive secularism” as opposed to the doctrine of secularism followed in the US where religion and state are separated. The reason for separation in the US is that it has gone through a renaissance, reformation, and enlightenment and thus they enact a law stating that state shall not interfere with religion. On the contrary, India has not gone through these stages and thus the responsibility lies on the State to interfere in matters of religion so as to remove its impediments in the governance of the State. In support of this contention, Justice R M. Sahai said, “Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fiber. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both for the protection of the oppressed and for promotion of national unity and solidarity.”
There appear to be two schools of thought with respect to the introduction of a uniform civil code. While one favors the introduction of optional code to which individuals would willingly submit, the other favors the introduction of a mandatory code for all citizens. While the choice of optional code seems less radical, the ground reality is that it shall never succeed for the simple reason that the deep-seated orthodoxy entrenched in the religious ideologies of India will ensure that submission to a secular code is construed as an abnegation of one’s religion and an act of blasphemy. Hence, the introduction of mandatory code is the only choice to achieve the goal of gender justice.
India’s allegiance to international conventions and national laws requires it to frame gender-neutral laws. The persistence of inequalities has always been defended on grounds of customs. KK Munshi remarked in the Constitutional assembly debate as “we need to purge ourselves from certain customs if they became anachronistic and start acting as a tool for oppression. Religious practices in the past have been so construed to cover the whole field of life and we have reached a point where we must put our foot down and say that these matters are not a religion and are purely matters for secular legislation”.[10]
The implementation of UCC would not necessarily mean doing away with age-old customs. The code would not require a Muslim to perform saptapadhi or a Hindu to baptize his child, but rather secure a set of laws which would guarantee basic human rights without being prejudiced towards one religion. The code shall be secular legislation that shall regulate secular matters like marriage, adoption, inheritance, etc. without gender discrimination. As Dr. B R. Ambedkar observed, “we have in this country a uniform code of laws covering almost every aspect of human relationships except marriage, diverse, maintenance, etc.” [11]
3.2 UNIFORM CIVIL CODE: REASONS FOR ITS IMMINENT NECESSITY
Uniform Civil Code was considered to be a threat to religious freedom envisaged by the constitution. However, there were many reasons given in favor of the common civil code. K.M Munshi took a very rigid view in negating the claims of the majority over sweep over minorities. He states, “It is not, therefore, correct to say that such an act is the tyranny of the majority. If you look at the countries in Europe which have a Civil Code, everyone who goes there from any part of the world and every minority has to submit to the Civil Code. It is not felt to be tyrannical to the minority. The point, however, is this, whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession. What have these things got to do with religion I really fail to understand”[12].
The other reason backing the uniform civil code was the issue of the empowerment of women. Since the right to equality was already acknowledged, the unequal footing of genders throughout the world of law can no longer be validated. A practice that undermines a women’s right to equality would necessarily be done away with. A common civil law governing the personal matters would bring all the women under one single umbrella, putting an end to discriminatory practices. Shri Alladi Krishnaswamy Ayyar gives a much more realistic reason to aim for a uniform civil code and based his argument on the fallacy of strict watertight existence of communities. He states that in a country like India, there is much interaction between various different communities which leads to altercations between specific personal laws. Not only altercations but also one legal system can be influenced by other legal systems. He states, “In very many matters today the sponsors of the Hindu Code have taken a lead not from Hindu Law alone, but from other systems also. Similarly, the Succession Act has drawn upon both the Roman and the English systems. Therefore, no system can be self-contained, if it is to have in it the elements of growth. Our ancients did not think of a unified nation to be welded together into a democratic whole. There is no use clinging to the past. We are departing from the past in regard to an important particular, namely, we want the whole of India to be welded and united together as a single nation. Are we helping those factors which help the welding together into a single nation, or is this country to be kept up always as a series of competing communities? That is the question at issue”[13].
It is a well-known fact that Ambedkar has always been a great critic of the dominant Hindu religion. In 1936, he has already underlined one of the many dogmas that infested Hinduism i.e. casteism and untouchability, to the extent that he went on to denounce himself as Hindu. In the constitutional assembly debate, he denied the claims of uniform civil code being a mouthpiece of the majority. He stated that the manner in which the Shariat Act is made applicable to all Muslims in India was nothing but an example of how uniformity was welcoming. If certain principles of majority religion i.e. Hinduism would be incorporated in uniform civil code, it would not be by virtue of them belonging to n Hinduism, but because they were suitable to the progressive society[14].
4.0 DISCRIMINATORY LAWS: WHAT KIND OF DISCRIMINATION ARE WE TALKING ABOUT?
As stated earlier, one of the main contentions for implementing uniform civil code is that the personal laws are discriminatory, particularly with respect to women. For the purpose of illustration, this part analyses the Muslim personal law.
4.1 MARITAL LAW
While practicing bigamy is a criminal offense among Hindus, Buddhists, Jains, Sikhs, Parsis, and Christians,[15] Sharia Law allows a Muslim male to solemnize up to four marriages. The right is unfettered and he need not take the consent of his existing wife. At the grassroots level, this sanctioned polygamy in Muslim personal law acts as an open inducement to errant husbands from other communities to desert their wives and children by simply converting to Islam. The contentions here is that marriage is a secular institution and the obligations attached to it should be one and the same in all religions. However, the established framework of separate personal laws in India tempts one to enquire why one particular community should be given blanket immunity from the offense of bigamy while attracts criminal liability for the rest. Unless and until the allowing of polygamy is effaced from Muslim personal law, millions of Indian women will stand the chance of being deserted by their husbands.
4.2 MAINTENANCE UNDER MUSLIM LAW
The judgment in the Shah Bano Begum’s case was a watershed moment for the rights of Muslim women under Mohammedan law and the discrimination meted out to them therein. In this matter, the question before the Supreme Court was whether a Muslim man was liable to maintain his divorced wife beyond the period of iddat. In 1932, Shah Bano, a Muslim woman was married to Mohammed Ahmad Khan and had five children from the marriage. After 14 years, her husband took a younger wife and subsequent to that, he refused to maintain Shah Bano. She filed a petition u/s 125 of Cr. P C demanding statutory maintenance for herself and her children. During the pendency of proceedings, her husband gave her an irrevocable talaq and took a defense that Shah Bano ceased to be his wife and therefore he is under no obligation to maintain her as per Muslim personal law. The Apex Court held that the secular character of the provisions under CrPC imposed an obligation on all husbands to maintain their divorced wives until they are remarried or were able to maintain themselves and thus applicable across religions. Subsequent to this judgment, the government enacted Muslim Women (Protection of Rights on Diverse) Act, 1986 which substantially diluted the obiter of the judgment i.e. restricted the maintenance to a period of iddat and shifted the liability to the relatives of divorced women who inherit her property and the wakf board. When the constitutionality of the Act was challenged, the Supreme Court held that such an act was prima facie discriminatory against Muslim women and us violative of fundamental rights. Yet, instead of striking it down, the Supreme Court ordered that it shall be interpreted in such a manner that it is not violative of fundamental rights.
4.3 ADOPTION UNDER MUSLIM LAW
The inequity served through separate personal laws often encompasses both genders; adoption being an example. Till recently, a Jew, Muslim, Christian in India did not have the right to adopt. They only had the power of guardianship in which one possesses only a legal right over the child until he/she becomes an adult. The biological parents reserved the right to intervene during that period. Muslim law does not recognize adoption but it does refer to a marginally similar doctrine known as ‘acknowledgment of paternity’.[16] In 2014, the Supreme Court clarified the position of adoption and its interplay with personal laws. In the matter of Shabhanam Hashmi[17], the Court held that one could adopt under the then Juvenile Justice (Care and Protection) Act, 2000 irrespective of restrictions imposed by personal laws. It further pointed out that a person was also free to abide by the dictates of his religion which he deems fit and applicable to him.
This case also opined that piecemeal attempts of courts to bridge the gap between personal laws by a liberal interpretation of statutes cannot take the place of uniform civil code for justice to all is a far more satisfactory way of dispensing justice than justice from case to case[18].
5.0 CONCLUSION
It is not possible to discuss in detail all problems likely to be encountered in the formulation of uniform civil code. It is obvious that they would be complex and delicate in nature. Being aware of this, the constitution-makers placed Article 44 in the directive principles of state policy which, though fundamental in the governance of the country, do not lay down a positive obligation enforceable either by legal or constitutional means. Moreover, the mild language of the article itself expresses hope rather than the issue of the mandate. It sets a goal and efforts should be made to achieve the same by a long process. Analyzing the secular nature of India and what the uniform civil code purports to achieve, it may seem that the contentions surrounding the implementation of uniform civil code are indeed abstract and there is a good that it can be implemented successfully. With the secular nature promising equal treatment of all religions and Dr. B R. Ambedkar promising that uniform civil code is not a tyranny of the majority, the uniform civil code indeed upholds secularism in India. But, there is also a greater possibility of using the uniform civil code to destroy the secularistic nature of India. The code may praise principles of one religion saying that they are essential for the progress of society and completely oppress the other religion and in the long run, creates a national religion. The evils now associated with personal laws are gender inequality. It cannot be said that gender inequality is less injustice when compared to the tyranny of the religious majority. It is just that uniform civil code is not the only way to countenance the gender inequalities in personal laws. If the government which is implementing the uniform civil code has some ideologies which are very much similar to a particular religion, the uniform civil code passed by them also tends to reflect the religious principles of such religion. Judicial activism is doing a very good job of reforming the personal laws to make it gender-equal. The triple talaq judgment is a starring example. Hence, instead of rushing to pass a uniform civil code which may or may not fulfill the secularistic principle of India, we can have faith in the judiciary to strike down all general inequality principles until a government who is absolutely neutral in terms of religion to enact a uniform civil code has arrived.
[1]. CONSTITUENT ASSEMBLY DEBATES (Lok Sabha Secretariat, 3rd reprint, 1999, Vol. VII)
[2]. John Vallamattom v. Union of India, (2003) 6 SCC 611, at para 44.
[3]. Lord Bryce, “The Relations of Law and Religions,” in id., 2 Studies in History and Jurisprudence (1901) 628, at 650
[4] . S S Nigam, Uniform Civil Code and Secularism.
[5]. Neera Chandhoke, “Secularism” in The Oxford Companion to Politics in India, eds. Niraja Gopal Jayal and Pratap Bhanu Mehta (Oxford University Press, New Delhi, 2010)
[6]. Gary Jacobsohn Jeffrey, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Oxford University Press, New Delhi, 2003).
[7]. St. Xavier’s College v. State of Gujarat, AIR 1974 SC 1389.
[8]. Articles 25 to 28 of the Constitution.
[9]. Harshita Vatsayan, INDIA’S QUEST FOR SECULAR IDENTITY AND FEASIBILITY OF A UNIFORM CIVIL CODE, ILI Law Review, Vil 1, Issue 2017.
[10]. Supra n. 1
[11]. Compendium on the Uniform Civil Code, SAMVAAD, 2017
[12]. Constituent Assembly Debates (Proceedings), Vol. VII, Tuesday Nov. 23, 1948.
[13]. Supra n. 9
[14]. Shambhavi, UNIFORM CIVIL CODE: THE NECESSITY AND THE ABSURDITY, ILI Law Review, Vil 1, Issue 2017
[15]. Preventing Bigamy via Conversion to Islam – A Proposal for giving Statutory Effect to Supreme Court Rulings 20-27, Law Commission of India (Aug. 2009)
[16]. K.B. Agrawal, FAMILY LAW IN INDIA 184 (Kluwer Law International, 2010)
[17]. Shabhnam Hashmi v. Union of India & Ors., (2014) 4 SCC 1
[18]. Akshay Shandilya, Arguing for a Uniform Civil Code in India in the light of Gender Discriminatory Practices under Muslim Personal Law, NUALS Law Journal, Vol 10, (2017)