A CASE AGAINST UCC: HUMILIATING MINORITIES? (PART 2 OF UCC SERIES)
Picture: A protest against UCC in Sambhal (Source: Wikimedia Commons)
In my Previous Article, I had written about various benefits of UCC and my opinion on why it should be implemented. However, various readers from different spheres of life and especially, one ex-guest lecturer of mine, drawn my attention towards certain drawbacks that could no longer be ignored by me. Hence, I am writing a follow-up on my previous article and leaving it to decide upon the readers what should or shouldn’t be implemented.
The Law Commission of India (LCI) requested comments from the general public, members of civil society, and all other parties in a new public notice dated June 14, 2023 with the subject line "Uniform Civil Code - Reg." until July 15, 2023. The LCI website has the public notice posted at https://lawcommissionofindia.nic.in/notice/uniform-civil-code-public-notice/, and it states the following:
"The 22nd Law Commission of India is looking into the topic of the Uniform Civil Code with regard to reference dated June 17, 2016, sent by the Ministry of Law & Justice. The 21st Law Commission of India initially looked into the issue of the Uniform Civil Code and sought input from all parties through an appeal, a questionnaire, and other public notices/appeals dated 07.10.2016, 19.03.2018, 27.03.2018, and 10.4.2018. The Commission has received a plethora of submissions in regard to the same. On August 31, 2018, the 21st Law Commission released its "Reforms of Family Law" consultation document. The 22nd Law Commission of India decided that it would be best to revisit the topic since more than three years had passed since the date the aforementioned Consultation Paper was released. This decision was made in light of the subject's continued relevance and importance as well as the numerous court orders on the matter. As a result, the 22nd Law Commission of India resolved to once more seek the opinions and suggestions of reputable religious organisations and the general public regarding the Uniform Civil Code. Within 30 days of the Notice date, anyone who are interested and willing may submit their comments to the Law Commission of India using the "click here" button or by email at membersecretary-lci@gov.in. The concerned parties are also free to submit their comments in the form of consultation, discussion, or working papers to the "Member Secretary, Law Commission of India, 4th Floor, Lok Nayak Bhawan, Khan Market, New Delhi - 110 003." Any person or group may be called by the Commission for a private hearing or discussion if necessary.
The aforementioned Public Notice has gone viral on all major social media platforms, particularly among Muslims. Men of letters are eagerly responding, making suggestions, and writing to the LCI in both long and short letters. It is beneficial for Indian democracy because Non-Resident Indians (NRIs) are seen writing to the LCI and actively engaging in this "process of law making." But only the LCI knows who will read these mountains of material and what will happen; will anyone even give these earnest proposals from the regular people the slightest consideration? According to Dr. M. Burhanuddin Qasmi, however, the Indian government has effectively resurrected this divisive topic after almost five years as a simple political tool to employ in the approaching general election of 2024.
Comparing fundamental rights and directive principles
The Indian Constitution's Articles 12-35 cover fundamental rights. All Indian citizens are granted these fundamental human rights. According to the Constitution, these rights are unalienable and unchangeable. The Constitution of India guarantees each Indian citizen six fundamental rights, including:
Equal Rights (Articles 14–18)
Freedom of Speech (Articles 19–22)
Right not to be exploited (Articles 23–24)
Religion-related freedom rights (Articles 25–28)
Rights to Culture and Education (Articles 29–30)
Article 32: Right to Constitutional Remedies
All people are equally entitled to freedom of conscience and the right to freely profess, practise, and promote religion, according to article 25 of India's Constitution.
On the other hand, a Directive Principle in Article 44 of the same Constitution states that "The State shall endeavour to secure for Citizens a uniform civil code throughout the territory of India."
A directive principle is only a suggestion, an optional action, and it cannot supersede a citizen of India's fundamental rights. The phrase "The Directive Principles" indicates that it only gave future Indian legislators a "power," not a "duty." After much discussion and debate, the Indian Constituent Assembly was happy to keep the Uniform Civil Code (UCC) as only a "endeavour." The UCC was previously deemed unrealistic in India's multireligious and multicultural society, and the same heterogeneous demographic situation still persists now despite more distinct identification lines.
As previously mentioned, the Indian Constitution's articles 26 and 29 are also considered "Rights of Citizens," in addition to article 25. Every religious group or any branch thereof shall have the right (a) to create and operate institutions for religious and charitable purposes; (b) to administer its own affairs in issues of religion;" according to Article 26. Article 29 addresses "Protection of interests of minorities: (1) Any section of citizens residing in India's territory or any part thereof having a distinct language, script, or culture of its own shall have the right to conserve the same."
The passage of the UCC will go against several other provisions of the Indian Constitution, particularly the Fundamental Rights, which are strongly enshrined in articles 25, 26, and 29. An attempt to modify Muslim Personal Laws has always been regarded as an interference in religion and religious practises by Muslim Indians, and hence is completely in violation of constitutionally granted fundamental rights. A Directive premise cannot and must not abolish any of the Fundamental Rights, as this would violate the underlying premise of the Indian Constitution, as stated in its Preamble, as well as the illustrated democratic principles of India's 'unity in diversity' culture.
Why is UCC not feasible in India?
India's beauty is its diversity. All citizens in India are guaranteed "justice, social, economic, and political" under the Indian constitution. It has passed legislation to protect the rights of all religious and ethnic minorities, as well as all socially and economically disadvantaged groups such as scheduled castes (SC) and scheduled tribes (ST), among others. As diverse types of flowers add to the beauty of a garden, individuals of many cultures and hues add to the beauty of this amazing country. This is India's solitary concept.
According to Dr. M. Burhanuddin Qasmi, One country, one law is not an option here. Adivasis have their own set of traditions and cultural norms. A man can have multiple wives, as a woman can have multiple husbands. They have many methods of marriage as well as ceremonies for burial the dead. A vast number of Hindus follow various religious rites in various locations.A comparison of Hindu, Muslim, and other minorities' personal laws reveals that the sheer diversity of these rules, together with the fanatical zeal with which they are held to, cannot allow for any kind of uniformity in personal laws. Indeed, the multiplicity of Hindu law itself precludes the creation of a consistent Hindu code.
In terms of marriage, under the Hindu Marriage Act of 1955, weddings may be solemnised in accordance with the rituals and ceremonies of a variety of persons who fall under the category of a Hindu. For example, in the'saptapadhi' (seven stages) style of marriage that is primarily practised in northern India, the marriage is considered full and binding when the pair completes seven rounds with the holy fire - known as'saath phere'.In the south of India, however,'suyamariyathai' (self-respect) and'seerthiruththa' (reformed) kinds of marriage are practised. The marriage is legitimate under these if the parties proclaim in front of relatives that they are marrying one other, or if they garland each other, or put rings on each other's fingers, or if the groom puts a 'Thali' or 'Mangalyam' (necklace) around the bride's neck. Similarly, in southern India, a Hindu man can marry his cousin or even his niece, while in other regions of India, Hindu males cannot marry their cousins or nieces.
Furthermore, under the Hindu Marriage Act (HMA) of 1955, a marriage must be solemnised in line with the traditional rituals and customs of at least one of the spouses. As a result, if a Jain marries a Buddhist using Sikh ceremonies, the marriage is null and void. [Sakuntala v Nilakantha 1972, Mah LR 31]. In contrast, Section 2(1)(b) of the HMA states that "anyone who is a Buddhist, Jain, or Sikh is also considered to be a Hindu..." Marriage ceremonies of same religious groups that are deemed one within the Act are not considered homogeneous rites under this article of the Indian Constitution - HMA 1955.
These are only a few examples that demonstrate the immense cultural, religious, and ethnic diversity that exists within India from state to state and region to area; all of which are protected by Indian Civil Law. It must thus be considered if it is conceivable or practicable to reconcile these disparate laws and create a uniform or common civil code that is acceptable to all communities.
In the shape of the Special Marriages Act 1954, India already has an optional civil code. This, when combined with comparable measures such as the Indian Succession Act of 1925, provides a strong legal foundation for all marriage, divorce, maintenance, and succession issues for individuals who prefer to bypass religion-based laws.
Dr. M. Burhanuddin Qasmi says, “The Indian Uniform Civil Code is a ruse and a political ploy. Putting all the leaping chickens in one tight basket is both irrational and impossible. So why this administration is instilling fear in regular citizens through the Law Commission of India is better known to Mr. Modi and others who sit in the domain of the RSS headquarters in Nagpur. Such an effort, in my opinion, will breed discord, confusion, and unrest among India's minorities, as well as degrade India's image as a secular democratic country throughout the globe.”
The Muslim Personal Law (Shariat) Application Act, 1937
In India, Muslim personal law is not unconstitutional. Muslims in this country are controlled under an uncodified system of rules that, like many other regulations, have been inherited from British law. The Shariat Application Act, passed on October 7, 1937, and in force since then, consists of six provisions and governs the application of Muslim personal laws in India. Section 2 of the Act identifies the issues that must be handled by Muslim Personal Law among Indian Muslims. The Shariat Application Act, 1937, which applies to the whole country of India, states: "Personal Law Application to Muslims."Regardless of any custom or usage to the contrary, in all matters concerning intestate succession, special property of females, including personal legally inherited or gained via contract or gift, or any other provision of Personal Law. Marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments), the Muslim Personal Law (Shariat) shall be the rule of decision in cases where the parties are Muslims."
It is widely assumed that the UCC would replace personal laws that control marriage, divorce, inheritance, and other family and social practises in all societies, including Muslims, who have personal laws as part of their faith and worship. It is also worth noting that personal laws are fundamental to all major faiths and cultures. Any relaxation of personal rules would be tantamount to tampering with the entire way of life of people who had been following them with traditional pride and customary care from generation to generation. India is a secular state that must not do anything that would jeopardise the religious and cultural character of its people.
Many populations, especially minority communities such as Muslims, Christians, and Sikhs, see the UCC as an infringement on their right to religious freedom and various identities. They are concerned that a unified code will disregard local traditions and impose regulations dictated and influenced mostly by the majority religious sects or Brahmin laws. The Indian Constitution guarantees the right to practise one's preferred religion. The extent of religious freedom will be restricted and greatly disregarded if uniform standards are codified and enforced.
In conclusion, Dr. Qasmi says “An attempt to formulate and implement the Uniform Civil Code, as mentioned in the Directive Principles of the Constitution under Article 44, is bound to have an impact on the Rights to Religious Freedom and Minority Rights, as guaranteed in the Fundamental Rights in Articles 12-35, which take precedence over all other provisions of the Constitution. As previously said, it may cause communal unrest throughout India and harm India's image internationally. As a result, it is both right and sensible to put the matter of UCC to rest once and for all in the national interest.”
[Dr. M. Burhanuddin Qasmi is my ex-guest lecturer and currently the Director of Markazul Ma’arif Education and Research Centre and Editor of Easter Crescent, Mumbai.]