ustice Prathiba M. Singh of the Delhi High Court, while hearing an estranged couple’s petition for divorce, stated that a common code for all citizens, as expressed in Article 44 of the Constitution, “should not remain hope but become reality”. She referred to the landmark ruling in the Shah Bano case, in which the Supreme Court ruled in 1985: “A common civil code would help the cause of national integration by eliminating divergent allegiances to laws with conflicting ideologies.” that Article 44 of the Constitution has remained a dead letter and there is no evidence of official activity to draft a civil code for the country.
Shah Bano’s ruling was the first challenge to the Muslim Personnel Act (1937), which refused to support divorced Muslim women in need. Then CJI YV Chandrachud stated that the right to equality and non-discrimination of women enshrined in Articles 14 and 15 applies equally to Muslim women. Section 125 of the CrPC, which provides alimony for divorced women, would override archaic and patriarchal Muslim personal rights. The disputed part of the judgment, however, was the instruction to the government to introduce a unified civil code at the earliest. The court referred to the scientific book by Dr. Tahir Mahmood on Muslim personnel law, which states: âIn order to pursue the goal of secularism, the state must stop administering religiously based personnel laws … Instead of wasting energy on exerting political and theological pressure … it will do well to do so begin to explore and demonstrate how the true Islamic laws, freed from their antiquated and anachronistic interpretations, can enrich the common civil code of India. “
The court has eagerly followed this line of reasoning in later judgments such as the Sarla Mudgal judgment of 1995, where Judge Kuldip Singh ruled: “If 80 percent of citizens have already been brought under codified personal law, there is no justification”. Introducing a unified civil code. âIn the case of Lily Thomas, 2000, the desirability of a unified civil code was reiterated, particularly with regard to succession. In ADC vs. NCT (2015), the SC complained about the lack of a uniform civil code regarding guardianship for a Christian child.
Interestingly, the Law Commission of India stated in its August 2018 report that a unified civil code is neither necessary nor desirable at this point in time. “Secularism cannot contradict the pluralism that prevails in the country,” said the commission.
With this in mind, it would make sense to look at the bigger picture of contradicting provisions in the Constitution and the contradicting view of science and activists who oppose the introduction of a unified civil code. Articles 25 and 26 of the constitution clearly set out the right to profess, practice and spread religion for all. On the other hand, Article 44 is an invitation to the state to endeavor to introduce a uniform civil code. The introduction of a uniform civil code would therefore be a clear negation of the fundamental rights of religious minorities.
The idea of ââachieving a common Indian identity is undesirable as the Indian identity is plural and a synthesis of different views. Critics believe that instead of a uniform social code, the state should try to achieve substantial equality at all levels and promote socio-economic justice for all.
Flavia Agnes, a well-known suffragette, believes that uniformity has not worked well for women in India. Instead of uniformity, women need an accessible and affordable justice system and an inclusive development model. Prof. Nivedita Menon considers national integrity as a justification for a uniform civil code and the amalgamation with women’s rights unacceptable due to their implicit homogenizing thrust. She strongly advocates reforms in personal law that are manifestly unjust.
The above perspective highlights the inherent dangers of cultural homogenization in the face of the plurality of Indian society. The Sarla Mudgal judgment made a sobering statement: âThe desirability of a uniform civil code can hardly be doubted. But it can only materialize if the social climate is properly built up by the society’s elite; Statesmen among the leaders who, instead of earning personal miles, rise and awaken the masses to accept change. “
Given the divided times in which we live, it would be advisable to respect pluralism in the practice of personal laws rather than imposing Hindutva under the guise of a unified civil code. Promoting socio-economic justice and overcoming religious considerations should be the predominant mandate of the government. At a time when the pluralistic fabric of India is heavily burdened, the judiciary should not be seen as promoting a unified civil code.
The author teaches constitutional law.