A few months ago, the Centre asked the Law Commission, headed by retired Supreme Court Judge Balbir Singh Chauhan, to examine the implications of enacting a uniform civil code (UCC). Subsequently, the commission released a questionnaire, covering a gambit of issues, to seek comments from the public. Predictably, some minority organisations opposed it, saying that a UCC would impinge on their right to freedom of religion.
Currently, there are two primary reasons propounded for a uniform civil code. First, that a secular republic should have a common civil law for its citizens, irrespective of their religion. And second, to achieve gender justice, as the personal laws of almost all religions are discriminatory towards women. Though the second reason is grounded in logic, the first is suspect. A uniform criminal law is desirable for establishing the principal of equality before law. But applying the same principle in civil matters may not be the right thing to do as this might curtail individual choice and override perfectly legitimate religious practices.
But what is a civil code?
Civil code refers to laws that deal with civil matters like marriage, divorce, adoption, succession and inheritance. As one can see, some of these are inherently personal matters and largely fall outside the philosophy governing the role of the state. Currently, different communities in India are governed by different personal laws. Hindus are governed by the Hindu civil code, which refers to the four bills passed in 1955–56: the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. For similar issues, citizens from other faiths are governed by other laws. For example, the Indian Christian Marriage Act of 1872 governs marriage and related issues for Indian Christians.
The difference between equality and uniformity
One issue that has not been addressed adequately in the current debate on the UCC is the practical difficulty in arriving at a uniform code for a country as large and diverse as ours. On some elements, like inheritance and maintenance, it may be feasible to come up with a common rule, but for subjects like marriage, it would be difficult to reconcile different religious practices and arrive at a universally applicable law. In some cases, as some minorities fear, it may lead to a situation where reconciliation is impossible, pushing the state to choose between two religious beliefs or practices.
For example, Section 5 of the Hindu Marriage Act prohibits marriage between two individuals based on whether they are related to each other before they get married. Among other things, it prohibits two individuals whose parents are siblings from getting married. Other religions do not prohibit such a marriage. How will the UCC deal with this issue? Will it mandate people of other faiths to follow this rule or remove the concept of prohibited relationships for Hindus? There is no middle path here.
Section 7 (2) of the Act says the ceremony for a Hindu marriage includes the saptapadi and the marriage becomes complete when the seventh step is taken. (Saptapadi is the process of the bride and groom taking seven steps by before the sacred fire to complete their marriage ceremony). As we all know, a Christian marriage ceremony is completely different, which in most cases, includes the bride and groom exchanging rings. How will the UCC deal with this issue? Will it mandate that non-Hindus follow saptapadi or force non-Christians to exchange rings?
One could go on. Another simple example could be the timing of the marriage. Section 10 of the Christian Marriage Act says that a marriage can only be solemnised between 6 am and 7 pm. Isn’t it common in other faiths to solemnise marriages early in the morning or late in the night? How can this be made uniform? Also, more fundamentally, why should it be made uniform?
The demand for a UCC stems from a lack of adequate understanding of the differences between equality and uniformity. Yes, it’s absolutely necessary for the state to treat it citizens equally, irrespective of religion, caste and gender. This essentially means that it should not discriminate against any of its citizens and ensure that all citizens get uniform rights. But should it ensure uniform procedure, that too, in personal matters? The answer is a clear no.
To address the real problem – gender justice – the focus should be to make our personal laws nondiscriminatory as most of them have provisions that do not adequately provide justice to women. The way forward is to identify the provisions of all personal laws that are discriminatory and to amend them suitably, irrespective of their religious sanction. With this, we will end up with a nondiscriminatory civil code that is constitutionally complaint.
If some provisions of personal laws are different for different religions, so be it.