By Aasha Eapen
The formation of the Uniform Civil Code (UCC) has long been a bone of contention in India. As per Article 44 of the Indian Constitution, ”The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Since it comes under the purview of Part IV (Article 36-51) of the Indian Constitution, as a Directive Principle of State Policy, it is not legally enforceable.
Back on track
However, the Law Commission recently announced its intention to entertain “detailed submissions” on the subject of the UCC by 6th April 2018. This major notice comes after the Law Commission of India, a body that advises the Ministry of Law and Justice, received an overwhelming response to its 2016 questionnaire. The decision to invite detailed submissions was made following the Commission’s analysis of the questionnaire response. It is an opportunity for stakeholders to explain their positions on the UCC. The move is also in accordance with Prime Minister Narendra Modi’s request to “examine” the implementation of the UCC.
India’s founding principle of equality means that a common set of rules must apply to one and all, irrespective of caste, class, gender or creed. Yet, the type of justice meted out in family matters like marriage, divorce, adoption maintenance and succession is heavily dependent on “personal laws”. Proponents of the UCC would argue that given the existence of a uniform criminal law, it is only natural that a uniform personal law should be in place as well. However, opposing political parties claim that it is a ploy by the Rashtriya Swayamsevak Sangh (RSS) to advance its ‘Hindutva’ agenda.
Looking at previous examples
While logical arguments can be made to advance the validity of both views, adopting such strong opinions on either side of the spectrum risks overlooking the complexity of the country’s pluralist society. The ‘Shah Bano’ case is an exemplar of this. In 1985, the Supreme Court decreed that “Mahr” was a consideration of marriage and not a divorce payment. This meant that Section 127 of the Code of Criminal Procedure, 1973 (CrPC) could not be cited as a reason to refuse payment of maintenance.
Thus, Shah Bano Begum was entitled to receive maintenance under Section 125 of the (CrPC). In the Court’s view, Muslim personal law did not cover the situation in Section 125 and so Muslim women were also taken under the ambit of the section. It appeared that the Court justified its intervention in religion through an absence of the UCC. The case had a devastating effect on communal relations and consequently on Shah Bano, who eventually retracted all involvement in it.
Events took a political influence when the erstwhile Congress government lost popular support in Muslim-majority regions. In order to regain favour, it enacted the Muslim Women (Protection of Rights in Divorce) Act of 1986. This placed Muslim women in a precarious position, one from which they were not rescued, following the failure of the Danial Latifi v. Union of India lawsuit.
Equality versus religious diversity
Successful and unsuccessful cases like the ones mentioned above, along with the Mary Roy v. The State of Kerala, reveals the massive personal cost faced as a result of deeply entrenched religious beliefs. Even as the issue of Triple Talaq is pending, the fight for gender equality writhes under the weight of another era. However, the latest decision may be yet another political manoeuvre in the judiciary, a branch that should remain independent from the legislature.
Punishment for the same crime requires the same sentence but extending this logic to swathes of people following varied customs in their personal lives is a dangerous prospect. If a Uniform Civil Code is to be formed, it should account for the diversity of cultures, tribes and religions in the country. It must make provisions for these nuances while upholding equality for all.
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