Legal congruity for justice

Governments should show political courage to use their legal competence in gender parity non-discriminatory national integration historically debated Supreme Court's reiterations.

Uniformity in laws, including their implementation, is always desirable and practicable. It reduces unnecessary litigation.

Uniformity in the codification of laws relating to crimes, evidence, contract etc., have paved the way for better administration across the world. Napoleonic Code or French Civil Code was one of the first such attempts in 1804. It was a departure from customary, feudal, royal, revolutionary, church, and Roman laws to a new code of laws that were applicable equally to all French citizens regardless of their class. The laws didn't draw from ancient customs are monarchical paternalism but from the "dictates of reasons".

This is probably what a uniform personal law, i.e., laws related to marriage, divorce, adoption, maintenance, and inheritance, in its true form would also try to achieve. At the outset, there are several benefits of introducing a uniform personal law or a Uniform Civil Code (UCC) in its ideal form, but there are six key reasons. (1) UCC would simplify laws, especially ones related to succession and inheritance. According to an estimate, around two-thirds of the total pending cases are related to property, inheritance, or related frauds. Simplified inheritance laws under UCC may end up helping in (a) reducing pending court cases and (b) ensuring that because of reduced complexity, future litigation on inheritance also gets reduced. (2) If individuals under similar circumstances who practice different faith approach a court on personal law-related issues, the judgements are bound to be completely different. Thus, rendering justice in a true sense becomes difficult. The introduction of UCC is a step towards ensuring inter-group parity among all religions.

(3) Some have even argued that UCC would lead to national integration, including Allahabad High Court. While listening to a case on the inter-faith marriage of 17 couples, Allahabad HC observed "A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so."

(4) An ideal UCC would be non-discriminatory and a step towards gender parity. In popular culture, whenever one talks about UCC, it is always seen as a tool to address the issue of polygamy. A lot has already been written about the relationship between polygamy and intra-family gender issues. However, polygamy is not a big concern. It is not as widely practised as it is thought to be. But, under Muslim personal laws, women are prohibited to remarry within a specified time, i.e., iddat in case of the death of her spouse or divorce. Further, the husband also has to pay the maintenance only until the period of iddat gets over. The Muslim Women (Protection of Rights on Divorce) Act, 1986 defines the "iddat period" in case of divorce as (a) "Three menstrual courses after the date of divorce if she is subject to menstruation. (b) Three lunar months after the divorce, if she is not subject to menstruation. (c) If she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier."

Apart from that, there are gender-related issues in other personal laws too. For instance, according to section 6 of the Hindu Minority and Guardianship Act, it is always the father who is the natural guardian. Similarly, under the Parsi personal laws, if a Parsi woman marries a non-Parsi man, she (a) can't practice her religion and (b) also loses her property rights. However, this is not the case if a Parsi man marries a non-Parsi woman. Under the Indian Succession act governing Christians, after the death of the husband, the wife gets only one-third of the property, whereas other lien descendants get two-thirds of the property. For instance, in a family of three, i.e., father, mother and son, if the father dies, the wife will get only one-third of the property. Whereas the son would get two-thirds of the property.

(5) While one can argue about what secularism really is, it was inserted in the preamble through the 42nd constitutional amendment. The Supreme Court in the S.R. Bommai vs Union of India case observed "Secularism is one of the basic features of the Constitution". Secularism is about the state not discriminating against any religion. But since the personal laws themselves are discriminatory, how is the state claiming itself to be secular. Thus, common personal law would also help in addressing this issue.

(6) Contrary to popular belief, UCC is not a 'majoritarian' agenda. Some have automatically presumed, that the UCC would be like Hindu Personal Laws. It won't and it can't. Hindu personal laws cannot be the sole determinant of UCC. In fact, while the idea of UCC was being discussed in the Constituent Assembly, there was staunch resistance from the orthodox Hindus themselves as they felt that implementation of something like a UCC would meddle into their personal laws.

Then what will be the alternative? For starters, under what laws and conditions a marriage will be registered? Should it be done under the Special Marriages Act? To address these questions, a wider consultation is needed among all the stakeholders.

One should be aware that this is not the first time that the idea of UCC has been mooted. In India, the first attempt at the unification of laws was made by the Lex Loci report in 1840 which unified laws on evidence, contract and crimes. It was one of the reports submitted to the first law commission which was established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Macaulay. However, the report didn't dabble into the personal laws, and it went on to recommend that the codification of laws should not include any laws pertaining specifically to Hindus and Muslims. This stance was further cemented by the Queen's 1850 proclamation which again said that the crown will not interfere in religion within British India.

If one goes through the Constituent Assembly Debates, she will find that Dr B. R. Ambedkar, KM Munshi and Alladi Krishnaswamy Ayyar were staunch supporters of UCC. A quote by Ambedkar is a must. While criticizing the personal laws on religious lines he said "I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights".

When the constituent assembly took up one of the initial drafts for debate on 23rd November 1948, Article 35 stated, "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". To Ambedkar's dismay, it was negatived. Later, UCC was renumbered as Article 44, thus making it one of the Directive Principles of State Policy, which is non-enforceable.

Many courts have also toyed with the idea of UCC. Time and again they have ruled for the UCC. One of the most notable judgements is that of Shah Bano's case. In Mohd. Ahmed Khan vs Shah Bano Begum And Ors (1985), the bench headed by the then Chief Justice of India, Y V Chandrachud observed, "It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, and the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But, a beginning has to be made if the Constitution is to have any meaning".

Similarly, in Sarla Mudgal vs Union of India & Ors, the Supreme Court once again ruled, "The Successive Governments till-date have been wholly remiss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil code throughout the territory of India".

Many do not know by Goa also has a Uniform Civil Code. Goa's UCC finds its roots in the Portuguese Civil Code, 1867, The parliament through Section 5(1) of the Goa, Daman and Diu Administration Act, 1962 allowed Goa to continue with the UCC. However, Goa's UCC also has many issues. For instance, under Goa's UCC, if a wife commits adultery, the husband can get a divorce. Conversely, a wife can merely seek separation if adultery is complemented by public scandal. For divorce, a husband should be having a mistress in the conjugal home and has abandoned his wife. Such provisions are even more discriminatory.

Thus, the UCC should address all the concerns related to discrimination and gender bias. However, UCC would not be an antidote to all evil. We need a greater formalisation, i.e., better land records, property records and even birth and death records.

Bibek Debroy is Chairman, Economic Advisory Council to the Prime Minister; Aditya Sinha is Additional Pvt. Secretary (Research), EAC-PM. Views expressed are personal