Uniformity Of Personal Law: Offers Neither Equality Nor Integration

NEW DELHI: Why is a large section of India not convinced about a uniform set of personal laws, equally applicable to every citizen, as way forward for promoting national integration? Further, why do they feel that such a guarantee of uniformity before the law will not necessarily uphold the principle of equality?

Before dealing with the above two questions, let us see the arguments made by the central government for implementing the Uniform Civil Code (Code). The Law Commission has been asked to detail a report on the implementation of the Code. The idea is to bring about a binding set of laws, which standardizes the practices of various religious communities when dealing with succession, divorce, maintenance and property.

Reasons given for bringing this code are (1) that the personal law applicable to every citizen in this country must be the same and that alone would promote secularism and unity; this is closely linked to the BJP’S idea of nationalism where an unconditional acceptance of majoritarian ideals is considered patriotic and progressive. (2) Regressive practices like triple talaq and polygamy restrict women’s rights and that the code will bring gender justice (3) The constitution had visualized a concept of uniform civil code (Article 44).

Firstly, the relationship of the Indian state with religion as explained by political theorist Rajeev Bhargava, is one of “principled distance”. The Indian constitution does not recognize the creation of separate electorates or the reservation for jobs on the basis of religious classification nor was there an organization of states on religious basis; hence, the Indian state excludes religion from its direct purview. Further, Articles 25 to 30 of the constitution (fundamental rights) guarantees the freedom of religion and cultural autonomy for minority institutions. The rights embedded in our constitution correctly understand that the protection of religious and cultural autonomy is essential to national integration. In this context it is also important to remember that “personal law” has not been static in India. Examples of judicial precedent and legislative measures that I draw from below show this. However it is important to recognize that neither the Supreme Court of India nor the Legislature has interpreted uniformity as equality when it comes to interpreting the constitutional right to freely practice religion.

First, the position of the Supreme Court has been to use the “essential practice” test (using judicial review to interpret certain practices as essential as compared to others that are not considered vital) to reform personal law, so for instance in the 2003 case of Javed and others vs State of Haryana they made clear that a Muslim man may marry 4 women nonetheless polygamy can not be seen as an essential part of personal law and hence is not mandatory. The Supreme Court in the same case went on to affirm the Haryana state law that prohibited a person with more than 2 children from contesting municipal elections, hence rendering zero constitutional protection to a religious practice! Similarly in the Sarla Mudgal (1995) the Apex Court made clear that personal law operates under the authority of legislation and not under religion. The state and the courts have consistently balanced public order and morality with religious and cultural autonomy. It is also to be remembered that the Indian Succession Act 1925 and Special Marriage Act 1954 are religion neutral and can be opted for by any person. The way forward is to move towards a more nuanced and reformatory form of justice and not to use majoritarian strength to impose uniformity.

Secondly, there is no doubt that women’s rights in religious communities cannot be immune from legal and social reform. So how does one balance the constitutional right to freely express your religion with reforming regressive personal law? The solution cannot be to coercively impose a blanket uniform civil code and insist on immediate homogenization of religious practices.

It is not as if personal law has remained stagnant in the last 65 years. The legislature, the judiciary and civil society have consistently tried to reform personal law. Let us take the instance of the 2001 Supreme Court judgment in Danial Latifi vs Union of India where now a divorced woman is entitled to maintenance for life or until she is remarried. Similarly, the Supreme Court in Shamim Ara vs State of U.P., held that talaq shall not be valid without an effort at reconciliation and further stated the requirement for strict judicial scrutiny of evidence when reviewing the pronouncement of talaq.

It is also to be noted that the issue of triple talaq has previously faced some judicial scrutiny when the Allahabad High Court declared such a practice as being unconstitutional. However the Supreme Court in 2002 stated that the Allahabad High Courts ruling could not be treated as the law of the land “until and unless the same arises in an appropriate case and is decided accordingly”. Interestingly as early as 1993 the conservative Ahl-i-hadith School decided it unislamic talaq thrice in one sitting. These are all slow reforms, which have gradually taken place through debate. Now of course the issue has arisen again in the Apex Court and the debate on the need for uniformity in personal law has become an issue of debate.

Similarly in Christian personal law the Supreme Court in its judgment in Mary Roy held that the Indian Succession Act, 1925 is made applicable to the Travancore area on the ground that it is expressly mentioned in the Schedule to Part B States (Laws) Act, 1951. This allowed the Christian women of Kerala to get equal share in interstate succession. This judgment also led the community to debate the issue and to positively accept the ruling.

Finally at a time when globally we are witnessing a sharpening of fundamental traits in faith we must more than ever, understand why post- independent India is arguably the most inspiring democracy in the world. India much like the United States has moved towards social transformation and religious freedom in a manner where the movement towards equality is not through legally enforcing homogeneity but is brought about by allowing space for diversity while bringing change that is inclusive. This is different from Secularism as practiced in France and such a model would be dangerous in our democracy. We now live at a time where the current regime has created an emergency like situation in Kashmir, where people are being lynched for eating meat and politicians aggressively question citizens on their patriotism, while parochially defining the idea of ‘Indianess.’ We might have come 70 years since independence but the current political regime and its simple-minded and dangerous understanding of India’s social and political ethos leaves our country very vulnerable and there has never been a time more wrong to impose a uniform civil code.