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In August 2018 the Law Commission of India released a Consultation Paper on ‘Reform of Family Law’[1] as a response to the Ministry of Law and Justice seeking recommendations on a Uniform Civil Code (hereinafter referred to as UCC). With the NDA Government already having fulfilled its long-promised goals of abrogation of Article 370 from the Constitution and with the commencement of construction of the Ram Mandir at Ayodhya, the speculations regarding the UCC have reignited. Article 44 mandates the state to secure for its citizens a UCC to replace the religious personal laws, unique to each religious sect, which currently govern family life in India. The UCC was envisaged to remove inequalities of the religious personal laws by supplying uniform principles in tune with the constitutional spirit that will be equally applicable to all citizens irrespective of their religion.
While the Commission acknowledges the unfortunate commonality that runs through all the religious personal laws—ranging from at times subtle and at times unabashedly blatant discrimination against women—it can be seen shying away from taking the bold and the inevitable step of drafting a blueprint for UCC concluding that the same is “neither necessary nor desirable at this stage.”[2]
The UCC was envisaged to remove inequalities of the religious personal laws by supplying uniform principles in tune with the constitutional spirit that will be equally applicable to all citizens irrespective of their religion.
It instead suggests several amendments in the existing religious personal laws hoping that piecemeal and gradual parliamentary and judicial intervention over a long course of time will remedy the scars that have only been deepening as we wait for one amendment after another. All this while allowing the oppression to continue. This, in fact, reminds us of the Supreme Court’s warning in the Shah Bano case, “piecemeal attempts of courts to bridge the gap between the personal laws cannot replace a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”
It becomes important to analyze the arguments advanced by the commission to justify its stand, particularly its repetitive resort to multiculturalism as a shield against any UCC oriented reform in order to ascertain if the commission has unconsciously supported regression. The consultation paper primarily opines against a UCC in order to “protect and preserve diversity and plurality that constitute the cultural and social fabric of the nation.” It is almost as if the commission has casually overlooked that UCC being a ‘Civil Code’ is meant to lay down principles to govern the civil status of individuals in the society in secular matters like marriage, divorce, inheritance and adoption. It does not seek in any possible way to take away the religious or cultural identities held sacred in the Indian society. This, in fact, should be the myth that the commission must work towards debunking.
The commission asserts that “it is discrimination and not difference, which lies at the root of inequality” suggesting that a UCC as envisaged by our forefathers would in effect dilute our celebrated differences which we owe to our multicultural setup, once again promoting a rift rather than facilitating a bridge between our diversities.
The commission asserts that “it is discrimination and not difference, which lies at the root of inequality” suggesting that a UCC as envisaged by our forefathers would in effect dilute our celebrated differences which we owe to our multicultural setup, once again promoting a rift rather than facilitating a bridge between our diversities.
The belief that UCC would somehow fail to secure the autonomy and sacredness of minority culture thereby striking at our plurality must be addressed as it is mistaken to a large extent. However, when the commission submits, “specific groups or weaker sections of the society must not be dis-privileged” it fuels this very illusion. It is imperative to give due regard to the fact the aim of UCC shall be to identify norms that can effectively contribute to building a progressive and egalitarian society. The aim is not to identify the norms of one particular community and apply them baselessly to all. What the forefathers have envisaged is the consideration of different practices of various communities to create a law that can best further the cause of dignity and justice. Our constitution, for instance, is a mixed bag of the best elements from various established constitutions with the purpose of creating a modern egalitarian society rooted in social justice.
At this juncture, it is suitable to recall Dr. B.R. Ambedkar’s warning against giving such a vast jurisdiction to religion so much so as the legislature is prevented from encroaching upon that field despite having the liberty to reform our social system and the inequities and discriminations that it sanctions.[4]
Perhaps instead of using multiculturalism as a weapon against reform that would massively benefit Indian women, we must actively move towards ways in which multiculturalism and gender justice can be allowed to co-exist. Both arecrucial to our constitutional spirit. An appropriate answer can be found in “parallel application of civil and religious law.”[3] This means that while the main law will be civil which will govern the validity of say, marriage for all legal purposes and remedies, the same will not hamper the parallel religious system which will allow parties to go through with any religious ceremonies which are within the spirit of the uniform principles as fostered by the UCC. This can be a solution as it will help people understand and appreciate that contrary to popular opinion, UCC is not meant to negate or take away religious rights.
At this juncture, it is suitable to recall Dr. B.R. Ambedkar’s warning against giving such a vast jurisdiction to religion so much so as the legislature is prevented from encroaching upon that field despite having the liberty to reform our social system and the inequities and discriminations that it sanctions.[4]
[1]Law Commission of India, Consultation Paper on Reform of Family Law, 31 August 2018.
[2]Supra note 1, p.7
[3]Shimon Shetreet, Academic Blueprint for the Implementation of a Uniform Civil Code for India, 2011 Utah L. Rev. 97 (2011).
[4]CAD Vol VII, p. 781-82
Well explained by Arushi on the necessity of UCC. We need to overcome the hurdles even in this case,as has happened in earlier instances, before UCC becomes a law.