Kashmir UCC seminar sparks political firestorm

| Updated: 01 April, 2024 1:15 pm IST

Recently a seminar in Kashmir University titled “Navigating Legal Frontiers: Understanding Indian Penal Code 2023 & the Quest for Uniform Civil Code” was cancelled because of politics by the separatists in the valley. It was being organized by an association of lawyers- Kashmir Jurists- in the valley which sought administrative support from the Indian Army. Separatists League of Abdullahs and Muftis tweeted objecting to discussion on UCC and Army being one of the organisers. It is emphasized, that the Army was just one of the organisers in a limited capacity. Not getting into that part, what needs to be analysed is Omar Abdullah’s tweet in which he called it a “political topic”. Is UCC a political topic? UCC is a Constitutional Mandate. Is it appropriate to call a Constitutional provision “political”?

Recently, Uttarakhand became the first state to achieve this Constitutional goal. Although Goa has been having UCC since its annexation by India in 1961, its UCC was a continuation of the Portuguese Civil Code of 1867, so practically Uttarakhand is the first state to enact UCC.

Historical Background: Legal Pluralism is the guiding force of legislative policy in India. The Constitution of India entitles to all citizens liberty of thought, expression, belief, faith and worship in its Preamble and Article 25 which reads as:

Article 25: Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and the other provisions of this Part (read Article 14 equality before and 15 prohibits discrimination based on sex), all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion….

Accords freedom of religion to every citizen which is justiciable being a fundament right, meaning thereby that this right can be enforced in the court of law. It is noteworthy that this right is qualified, meaning it is subjected to reasonable restrictions as mentioned in sub-section (1).

These provisions have facilitated various communities in India to follow their laws in family matters, facilitating legal pluralism. For example, Hindus, Buddhists, Jains and Sikhs are governed by the Hindu Marriage Act of 1955, Muslims by Shariat 1937, the Christian Marriage Act (1872), and the Parsee Marriage and Divorce Act (1937).

But the members of the Constituent Assembly, in their good senses, knew that having different laws, in the long run, would not just lead to legal contradictions, but also inequalities in society and thus social disharmony. With their gifted foresight, they incorporated Article 44 in the constitution which reads as:
Article 44. Uniform civil code for the citizens: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

It is important to bring to your notice here that while Article 25, which gives all citizens the right to freedom of religion which is understood to encompass personal laws by the naysayers, is in Part III Fundamental Rights, Article 44 is in Part IV Directive Principles of State Policy. It means in case there is a conflict between Article 25 and Article 44, rights under Article 25 must override Article 44. It has been the debate of UCC naysayers that UCC finding its genesis in Article 44 can’t curtail a citizen’s right to freedom of religion which is an enforceable right a fundamental right. However, the Constituent Assembly members said that Article 25 is the freedom to religion only, and family law and succession are legal issues and not matters of faith.

Opposition to UCC mostly comes from the Muslim community saying that it is a direct interference with their religion. It would be pertinent here to say that before The Muslim Personal Law (Shariat) Application Act 1937, sub-sects in Muslims followed their customary laws and with the widespread support of Muslim women all Muslims were brought under the application of Sharaiat from different customary laws. So the argument of naysayers that UCC will violate their religious identity is wrong. Muslim law is not immutable. It too has changed in consonance with time.

It must be understood that Article 44 is based on the premise that there is no relation between religion and personal law in a civilised society. Marriage and succession are matters of secular nature while religion is a matter of faith concerning the Almighty. Hence the law can regulate marriage and succession while religion may be immutable to a great extent. However, reasonable restrictions apply to the right to freedom of religion. And rightly so.

Constitutional Assembly debate on 23rd November 1948  on Article 35 of the Draft Constitution which is Article 44 in the Constitution now:

Mr. Mohamad Ismail Sahib (Madras: Muslim): Sir, I move that the following proviso be added to Article 35: “Provided that any group, section or community of people shall not be obliged to give up its law in case it has such a law.” The right of a group or a community of people to follow and adhere to its law is among the fundamental rights and this provision should be made amongst the statutory and justiciable fundamental rights.

Shri K. M. Munshi (Bombay: General): …..The whole object of this article is that as and when the Parliament thinks proper or rather when the majority in the Parliament thinks proper an attempt may be made to unify the personal law of the country. A further argument has been advanced that the enactment of a Civil Code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries, the personal law of each minority has been recognised as so sacrosanct as to prevent the enactment of a Civil Code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights. But I go further. When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs; for generations since they became converts they had done so. They did not want to conform to the Shariat, and yet by the legislation of the Central Legislature, certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the rights of minorities then? When you want to consolidate a community, you have to take into consideration the benefit which may accrue to the whole community and not to the customs of a part of it. It is not therefore correct to say that such an act is tyranny of the majority….

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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 fail to understand. Take for instance the Hindu Law Draft which is before the Legislative Assembly. If one looks at Manu and Yagnyavalkya and all the rest of them, I think most of the provisions of the new Bill will run counter to their injunctions. But after all, we are an advancing society. We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If however the religious practices in the past have been so construed as to cover the whole field of life, we have reached a point when we must put our foot down and say that these matters are not religion, they are purely matters for secular legislation. This is what is emphasised by this article. Now look at the disadvantages that you will perpetuate if there is no Civil Code. Take for instance the Hindus. We have the law of Mayukha applying in some parts of India; we have Mithakshara in others; and we have the law-Dayabagha in Bengal. In this way even the Hindus themselves have separate laws and most of our Provinces and States have started making separate Hindu laws for themselves. Are we going to permit this piecemeal legislation because it affects the personal law of the country? It is therefore not merely a question for minorities but it also affects the majority.

There is one important consideration which we have to bear in mind—and I want my Muslim friends to realise this—that the sooner we forget this isolationist outlook on life, the better for the country. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country.

I hope our friends will not feel that this is an attempt to exercise tyranny over a minority; it is much more tyrannous to the majority. This attitude of mind perpetuated under British rule, that personal law is part of religion, has been fostered by the British and by British courts. We must, therefore, outgrow it.

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Dr. B. R. Ambedkar: Sir, I am afraid I cannot accept the amendments which have been moved to this article….. Coming to the amendments, there are only two observations that I would like to make. My first observation would be to state that members who put forth these amendments say that the Muslim personal law, so far as this country was concerned, was immutable and uniform throughout the whole of India. Now I wish to challenge that statement. I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North-West Frontier Province (Khyber Pakhtunkhwa in Pakistan) was not subject to the Shariat Law. It followed the Hindu Law in the matter of succession and other matters, so much so that it was in 1939 that the Central Legislature had to come into the field and abrogate the application of the Hindu Law to the Muslims of the North-West Frontier Province and to apply the Shariat Law to them. That is not all. My honourable friends have forgotten, that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession. To bring them on the plane of uniformity with the other Muslims who observed the Shariat Law, the Legislature had to intervene in 1937 and pass an enactment applying the Shariat Law to the rest of India. I am also informed by my friend, Shri Karunakara Menon, that in North Malabar the Marumakkathayam Law applies to all—not only to Hindus but also to Muslims. It is to be remembered that the Marumakkathayam Law is a Matriarchal form of law and not a Patriarchal form of law. The Mussulmans, therefore, in North Malabar were up to now following the Marumakkathyam law. It is therefore no use making a categorical statement that the Muslim law has been an immutable law which they have been following since ancient times.

…..Therefore if it was found necessary to evolve a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindu law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35.…

He assured that the enactment of UCC will be at an opportune time when the citizenry will have more acceptance of it.

Which Countries have UCC:

Out of 193 member states of the United Nations, eight countries have a Uniform Civil Code – the United States, Pakistan, Bangladesh, Malaysia, Turkey, Indonesia, Egypt and Ireland (according to a report in The Statesman).  Half of these are Muslim-majority countries.

Calibrated transition towards UCC by govt: The Govt first brought a secular Act Special Marriage Act, in 1954, followed by codifying Hindu law:

  • The Hindu Marriage Act, 1955
  • The Hindu Succession Act, 1956
  • The Hindu Minority and Guardianship Act, 1956
  • The Hindu Adoption and Maintenance Act, 1956

It’s noteworthy that ‘Hindu’ also includes Sikhs, Jains, and Buddhists for these laws.

Jurisprudential History of UCC in India:  

The most prominent case to have triggered the debate on UCC was Mohammad Ahmed Khan v. Shah Bano Begum (1985) popularly known as the Shah Bano case. Facts of it….. Giving in to political compulsions, Rajiv Gandhi led-govt passed the Muslim Women (Right to Protection on Divorce) Act, 1986 which reduced the maintenance rights of Muslim women.

Sarla Mudgal Vs Union of India, 1995 wherein addressing the issue of conversion to Islam for marriage,  the apex court observed that UCC is the need of the hour.

Shayara Bano Vs Union of India, 2017 wherein a 5-judge Constitution bench declared the practice of triple talaq or talak e biddat (instant talak) as unconstitutional.

Looking at the Constitutional history of UCC, it is inappropriate to call UCC a political topic. Calling UCC a political topic is a direct attack on the Constitution itself. You can’t approbate and reprobate the same thing, as the maxim goes in law.

The writer is a Delhi-based lawyer. She tweets X @SeemaSindhu

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