In a democratic, constitutionalist and enlightened constitution like ours, the state is obliged to treat its citizens equally, irrespective of religion, race, caste, sex etc., in order to ensure that all citizens get uniform rights. However, whether such a uniformity is to be provided in personal matters, has been a matter of debate. It is pertinent that a diverse and plural socio-cultural set up certainly requires personal laws for different groups and communities so that the cross-cultural barriers do not become impediments to national integration.
When Article 1 of the Constitution of India writes, ‘India, that is, Bharat shall be a Union of States’, in fact, it refers to two different connotations. While ‘India’ reflects politic-diplomatic unity, ‘Bharat’ signifies India’s diverse but composite culture which is based on the core value of tolerance. To be more appropriate, it may be said that it is the Union which shall be responsible for not only organising the states but also for taking decisions in the context of foreign affairs. On the other hand, as a Union of States it signifies that despite sates have their own specific cultures, it is ultimately the culture of India. Hence, Article 1 itself lays the foundation of unity and integrity in the Constitution. Moreover, India’s political design also signifies a decentralised form of governance in which the Union shall serve as the allocator of resources whereas the states shall be the distributors. Thus, a participatory and democratic approach has also been constitutionally provided. The core value of tolerance may be secured and sustained only when every group or, community is able to protect its own specific cultural identity. This becomes highly important considering the Census 2011 data that there are over 2000 ethnic groups residing in India. The protection of culture is possible only when personal laws for every community get recognition. This may also serve as the bedrock of national integration. Probably this has been one of the major bottlenecks for the state to implement the provision of a Uniform Civil Code(UCC) even after six decades of independence. However, it is also a fact that that diversity in personal laws have proved to be anti-thesis to uniformity.
Personal laws do play very critical role in making the communities participate in the politico-socio-cultural milieu, but they must be in conformity with the Constitution. Recent debates on personal laws with reference to the issue of ‘triple talaq’ and gender justice have become a matter of serious concern and once again have prompted us to revisit the concept of UCC in the context of constitutionalist and enlightened constitutional system of India. The question is whether constitutional protection given to religious practices as prescribed in personal laws, should extend even to those that are not in compliance with fundamental rights. The idea that personal laws of religions should be beyond the scope of judicial review, and that they are not subject to the Constitution, is inherently abhorrent.
Though rights have been granted under personal laws and also in the Constitution, especially the right to freedom of religion under article 25, shall not be absolute. Therefore, a constitutionalist approach shall be adopted to regulate them. There shall be a balance between the liberty of the citizens and authority of the state, which has been the foundational principle of a constitutionalist and enlightened constitution. At the same time, rights and duties shall coalesce to make a unified structure so that the check and balance system succeeds and sustained.
The correlativity of rights and duties could be understood by way of both constitutionalism and post-democratism. This is seminally because claiming the right to religious freedom will be significant only when sensitivities to duties will be followed. Before we discuss further on the proposed UCC, let’s have an idea of constitutionalism and post-democratism especially in the context of policy making and governance.
Constitutionalism in India
Being a unitary or parliamentary federation, India practices both the principles of ‘fusion of powers’ (The phrase ‘fusion of powers’ s believed to have been used for the first time by Walter Bagehot. In Indian Constitution, it finds its expression in article 75(3) in the form of collective responsibility of the Council of Ministers to the Lok Sabha.) between the Executive and legislature and also ‘separation of powers’ with two different approaches. First, the non-interventional approach to the powers to be exercised by the legislature, executive and judiciary; and, second, the distributional approach to divide the law-making powers between the Union and states. However, it follows a check and balance model to effectively institutionalise it to ensure independent centres of decision making. This necessitates the installation of a philosophical concept of constitutionalism for the protection of fundamental rights as enshrined in Part III of the Constitution of India and also for limiting the state to check any possible arbitrary exercise of powers. In this backdrop, it is evident that to preserve the basic freedoms of the individual and to maintain his dignity, the constitution should be permeated with constitutionalism. But at the same time, this constitutionalism from a post-democratic viewpoint must also limit the exercise of individual’s liberty so that a balance between rights and duties is ensured and effected.
Theoretically, constitutionalism has been one of the milestones to preserve individual freedoms. It provides what the state and institutions are expected to do and also makes it clear what they shall not do. In fact, the idea of constitutionalism finds its roots during the period of absolute monarchies when constitutions were granted by the monarchs. This led to an apprehension of arbitrary exercise of powers by the monarchs. The first expression of constitutionalism was made in the Philadelphia Convention before the framing of the Constitution of the United States of America. The Convention incorporated the idea of constitutionalism as a philosophy of changes which is rationalised legally as well as morally and socially. Following this, the French Revolution 1789 gave a fillip to this idea and it started spreading across the democracies in the world.
In the context of India, the Supreme Court in I. R. Coelho v. Union of India AIR 2007, SC 861 has opined that the principle of constitutionalism is now a legal principle which requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based. In this sense, constitutionalism is a natural corollary to governance in India and has been established through the rule of law.
It is also a well-established fact that constitution should not be treated simply as a static document, rather it is organismic and a living and breathing mechanism. The role of the state and of the citizens too have been changing with the changing times and such changes have broadened the meaning and scope of constitutionalism, thereby incorporating limitations both on the liberty and authority of the citizens and the state respectively.
Understanding Uniform Civil Code
Article 44 of the Constitution of India writes:
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.“
A civil code refers to laws that deal with civil matters like marriage, divorce, adoption, succession and inheritance. Presently such matters are generally governed by personal laws in India which has multiplicity of such laws (Some of the important personal laws practised in India include, the Hindu Marriage Act, 1955, Indian Divorce Act, 1869, Christian Marriage Act, 1872, Indian Succession Act, 1925, Parsi Marriage and Divorce Act, 1936 etc.).The issue of uniform civil code had become debatable in the Constituent Assembly itself and amendments were moved to protect personal law of any group, community or section of the people. There was an objection that such a code would infringe the right to freedom of religion as enshrined in article 25 of the Constitution. Further, it might amount to tyranny to the Minorities.
The basic idea of proposing a Uniform Civil Code was to separate religion from personal laws and also from social relations or, from rights of parties as regards inheritance or succession. Thus, the proposed code believes in unifying and consolidating the nation by every means without interfering with religious practices. Moreover, a common code will help the cause of national integration by removing the contradictions based on ideologies.
So far as the right to religious freedom under article 25 is concerned, it clearly mentions that such a right is available to all persons equally and is based on the principle of religious tolerance which is also the foundation of secularism in India (Barry Kosmin classifies Secularism into two categories, Hard i.e. complete separation of religion and state, and Soft, i.e. religious tolerance. While Hard secularism is practised in the West, Indian Constitution incorporates Soft secularism). It is also a fact that religion should be confined to regulate personal lives only and should not interfere one’s public life. There lies the importance of a duty-bound approach or a post-democratic approach to understand and practice one’s own religion.
Judicial Approach to Uniform Civil Code
Uniform Civil Code and secularism are not antagonistic, rather they are complementary to each other. The Supreme Court in S. R. Bommai v. Union of India AIR 1994 SC 1918 has held that religion is a matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the state by law. The provision in Article 25 (2) is worth mentioning here which writes,’ Nothing in this article shall affect the operation of any existing law or prevent the state from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practices.’ Thus, marriage, adoption, divorce, succession, inheritance etc. are secular activities and hence are not opposed to Uniform Civil Code.
The Apex Court had directed the Parliament to frame a uniform civil code in Mohammad Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 case. According to the Court, a Muslim woman have a right to maintenance from her husband after she is divorced under section 125 of Code of Criminal Procedure, 1973. There were serious debates on the decision and allegations were made that the judicial decision interfered the personal laws of the Muslim community. Finally, the decision was overturned by the Government of India by making a law, the Muslim Women (Right to Protection on Divorce) Act, 1986.
Further, in Mary Roy v. State of Kerala AIR 1986 SC 1011 the question raised before the Supreme Court was that certain provisions of the Travancore Christian Succession Act, 1916 were unconstitutional under Article 14. The Court ruled that the Travancore Act had been superseded by the Indian Succession Act, 1925. The decision gave a boost to the concept of gender justice.
In Sarla Mudgal v. Union of India AIR 1995 SC1531 the Court opined that no community could claim to remain a separate entity on the basis of religion. The Court also held that the Uniform Civil Code shall be made in a phased manner along with the rationalisation of religions.
Understanding Post-Democratic Approach
A coordinated approach for widening the sociological base of governance across the world essentially demands post-democratism that incorporates sensitivity to duties. While democratic governance focuses primarily on rights with an in-built component of ‘taking’, post-democratism centres around a penchant for ‘giving’. It seeks an alternative approach to development, that is a system which shall be based not merely on rigid rules but also on maximization of values. In a post-democratic socio-cultural system, rights and duties must coalesce. This contributes to creating a politico-administrative and judicial-legal construct of social and economic justice. This is possible only when a duty-bound approach is adopted and both the citizens and the state consider the changing requirements before taking decisions. The concept assumes greater significance in religiously, linguistically and ethnically diverse society like ours. Definitely, such diversities make the system complex but an understanding of one’s own duties before claiming for rights will emerge as a saviour.
Today’s world is seeing unprecedented opportunities and challenges for humanity. These require us to learn from the tragic mistakes of the past and thereby, require governments to reassert their responsibilities for and to their peoples. The universally accepted principle is that it is the governments that are responsible for the realization of the right to development and thus, for realization of civil, cultural, economic, social, and political rights. This can only come about through the meaningful participation of all sections of the society.
Rights whether granted by the Constitution or, by law, may be personal laws can be protected only when the duties are performed. Among the questions that still divide the philosophers who are concerned with problems about rights, inter alia, include most importantly whether, or to what extent, rights and duties are logically correlative. Despite divergence of opinions, in the legal context there may be few considerations establishing their logical correlation, such as:
- a positive in personam right, that is, a right against one specific person requiring him to perform a positive act, and
- a class of duties of commitment which should be more properly called obligations.
In case of obligations, it is the state that has to ensure that these obligatory commitments are fulfilled so that rights of diverse nature of the people are well protected and respected. Critically, it is said that duties are morally bound hence cannot be fully executed. However, once codified, duties are transformed into obligations and become legally bound. For instance, the Supreme Court in Minerva Mills Ltd. V. Union of India AIR 1980 SC 1789 has held that the Directive Principles, essentially included as the duties of the state are coordinated with fundamental rights and both constitute the essence of the Constitution of India.
The Goan Model
Goa is the only state in India which has enforced Uniform Civil Code for all citizens which is a progressive law that allows equal division of income and property regardless of gender between husband and wife and also between children. Every birth, death and marriage has to be compulsorily registered. For divorce, there are severe provisions. Muslims that have their marriages registered in Goa cannot take more than one wife or divorce by pronouncing “talaq” thrice. During the course of marriage all the property and wealth owned or acquired by each spouse is commonly held by the couple. Each spouse in case of divorce is entitled to a half share of the property and if one dies the ownership over half of the property is retained by the other.
According to the Uniform Civil Code even if the children (both male and female) have got married and left the house, the other half has to be divided equally among them. Thus, the parents cannot disinherit the children totally as they can dispose only half of the property in a will and the rest has to be compulsorily and equally shared amongst the children.
The issue of uniform civil code has emerged into India’s political discourse mainly due to the recent debates of triple talaq and polygamy claiming that such practices violate rights of women and it’s a kind of discrimination.
Hence, the supporters of the Code claim that a common legal code would ensure strengthening of principles of equality and liberty in India. However, the All India Muslim Personal Law Board denies such a notion saying that the Judiciary or any other agency does not have any right to interfere in their religious affairs or, religion. India needs a uniform civil code primarily for two reasons. First, India is a secular democratic republic hence, it gives right to freedom of religion to all persons without discrimination. Further, religious and secular activities have been segregated from each other, a common code will ensure deepening of the core value of secularism in India.
The second reason is the to ensure gender justice by protecting the rights of women especially among the minorities. In the last two and half decades there has been dramatic changes in the attitudes and views in the society which have been essentially guided by the market forces and liberal tendencies. This era of liberalism demands equal participation of all sections of the society in the process of development. This goal could be achieved only when rights of the women are well protected. However, as the Indian socio-cultural fabric is still religious and conservative the process of secularization needs to be speeded up so that modernisation of the society takes place and the religions are rationalised. A trust building approach needs to be followed by the state and at the same time, the state also needs to take steps to make people more and more aware of their duties towards national integration. It should also be taken care of that constitutional law must override religious laws for the purpose of sustaining the principles of democracy and secularism as well.
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