By Kitdor H. Blah
Is the UCC good or evil? First of all, there is a wrong and a right way to look at UCC. The wrong way to look at UCC is as a means for the majority community to impose its ideals on the minorities. This narrative is not only factually wrong but also divisive, and it is such a polarization that is politically beneficial to some sections of the political class. But what is lost in this narrative is the history and principle of the UCC. The right way to look at UCC is in the context of Fundamental Rights because it is there that we will find its true history and principle.
The UCC made its way to the Constitution of India through the Sub Committee on Fundamental Rights. Fundamental Rights are what define a Constitutional Republic. Democracy is often said to devolve into mob rule. Fundamental Rights exist to protect the rights of every citizen, and to prevent the nation from degenerating into mob rule. To this end, the Sub Committee was entrusted with the task of drawing up a list of Fundamental Rights to be incorporated into the Constitution to form its basic structure. These Fundamental Rights were to ensure the political freedom of the citizens and to protect them from intrusive State action. But they were also aimed at securing social and economic freedom for every citizen. Thus, we can say that the Fundamental Rights were aimed at securing political, social and economic freedom for every citizen. And it is in the draft submissions of this Sub Committee that the UCC entered as one of the provisions.
The Sub Committee was looking at making a distinction between justiciable Fundamental rights, i.e. those rights which can be enforced by the Court, and non-justiciable Fundamental rights. What came through from that Sub Committee was a draft list of justiciable and non-justiciable Fundamental Rights. The UCC made it to the list as a non-justiciable right. So, the consensus of the Sub Committee was that the UCC was best kept outside the purview of the Court, but it was retained as a fundamental Principle of State policy. The UCC made it to the Draft Constitution of the Constituent Assembly, not in the list of Fundamental Rights, but in the list of ‘Directive Principles of State Policy.’ The reason is because Fundamental Rights are enforceable by law, while non-justiciable rights were provided as Directive Principles of State Policy. The reason the UCC was provided as a non-justiciable right, and then as a directive principle, was because of religious sensitivities. The Constituent Assembly deliberated on the UCC on November 23, 1948 and the provisions for UCC were adopted into the Constitution of India as Article 44, under the ‘Directive Principles of State Policy’ with the words: “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
What is lost in the current political climate and divisive narrative is that the UCC was provided and debated in the context of Fundamental Rights; to secure social and economic freedom for every citizen while the Fundamental Rights were to secure political freedom for every citizen. Therefore, the UCC cannot conflict with any of the Fundamental Rights, including the Right to Freedom of Religion, as provided in Article 13(2): “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
Second, what is also lost in the current narrative is that the UCC, as one of the Directive Principles of State Policy, is non-justiciable, i.e. it is not subject to enforcement by the Court. Article 37, in the Directive Principles of State Policy of the Constitution, states: “The provisions contained in this Part shall not be enforceable by any court, but the principles laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” Thus, neither the Government and the Parliament of India, nor the Governments and Legislatures of the states, nor any legislating body such as the Autonomous District Councils, can be forced to implement the UCC.
Third, what is lost in the current narrative is that the states are not obligated to set aside any existing laws relating to marriage and inheritance, even if the UCC is passed by Parliament, because states have the authority to make laws with regards to marriage and inheritance, as these are subjects that both the Parliament and the State Legislatures can legislate on, as they are listed at point 5 in the Concurrent List of the Seventh Schedule of the Constitution.
Fourthly, the UCC itself is an integral part of the Constitution, and therefore, it cannot be unconstitutional in any way. Hence the provisions of the Sixth Schedule of the Constitution will also apply to the UCC, meaning that the protection afforded to the tribal areas through the Autonomous District Councils with regards to their ability to make laws relating to marriage and inheritance in paras 3(h) and 3(i) of the Sixth Schedule and the protection afforded to the tribal areas with regards to any Act of Parliament in para 12A(b) of the Sixth Schedule, shall also apply to the UCC.
Fifth, is the fact that no draft of the UCC has even been presented, which means that in effect, we are merely debating the idea of UCC without any content or substance. This is like putting the cart before the horse. Lastly, and most importantly, the UCC can bring equality to many disadvantaged groups, like women and children. For example, why should Muslim women suffer under forced polygamy even while remaining monogamous themselves? We cannot say that such suffering is condoned in the name of secularism. I believe that all conscientious Muslims will agree that there must be a remedy in the Court in case such customs result in the violation of the Fundamental Rights of any woman, such as equality before the law and the protection of life and personal liberty, which then results in the deprivation of social and economic freedom of any citizen.
Therefore, based on the above considerations, we can see that a UCC is not binding on any state, even if passed by the Parliament. But a UCC can serve as a guiding principle to the states in securing the social and economic freedom of every citizen. We have also seen that the principle of the UCC is rooted in Fundamental Rights and freedom of the individual, and not to infringe on the religious freedoms or the social customs of any community, or to impose the ideals of one community on another community, but to allow for a remedy in case such customs violate the social and economic freedom of a citizen.
To this end, a draft UCC should be prepared, with thorough deliberation of all communities to arrive at a ‘minimum basic agreement’ to ensure that no citizen is deprived of his or her personal liberty and social and economic freedom by ensuring that a remedy exists in case such religious and social customs are wrongfully used to infringe on the social and economic freedom of any citizen. I believe that all conscientious persons of any faith can agree that while there are instances where the adherents of their faith may be religiously condemned for what is deemed to be immoral behaviour, and such condemnation may take the form of penance, excommunication, rehabilitation, etc., such condemnation should never have the effect of violating the social and economic freedom of any citizen.
In view of the above considerations, it may be said that the present divisive narrative on the UCC does not reflect the history or principles of the UCC, but may be intentionally polarised, for political gain. Hence we cannot accept such a historically inaccurate and unprincipled view of the provision for UCC in Article 44 of the Constitution of India. Any attempt by any political party, on either side of the issue, to skew the facts regarding the history and principle of the UCC may be taken as nothing but politicking, i.e. pandering to the vote bank. Any attempt by any government, present or future, to use Article 44 as a means to violate the Fundamental Right to Freedom of Religion, or to impose the ideals of one community on another, is unconstitutional and inaccurate in its interpretation and application of Article 44. It will be challenged in the Court, as Fundamental Rights are justiciable, while Article 44 is not. But since no draft UCC has been presented, it is not clear if the present government is even attempting to do this, in spite of the polarising narrative. So, with all of the aforementioned facts, the question remains: is UCC good or harmful?
The UCC is good in that it can bring about a uniform protection of individual rights and personal liberties hat could otherwise not be afforded due to religious sensitivities. It is a truism that abuse comes in all forms, and religion and social customs are no exceptions. A religious tradition or social custom can be used or abused to deprive a citizen of his or her social and economic freedom. The UCC need not necessarily outlaw such a religious tradition or social custom. But a UCC may allow for an aggrieved person to seek remedy in a court of law, if that person is deprived of his or her social and economic freedom, in the name of that tradition or custom. In other words, UCC is good in that it may allow remedy to a person whose personal liberty is violated, that may not otherwise be possible due to religious sensitivities. An instance is that of a woman who may be forced to cohabit in a polygamous setting. Such undue suffering cannot, in the name of religion, be left without remedy. The prohibition of Child Marriage Act, 2006, is an example of a law that was enacted to protect the rights of children, which may be violated by tradition.
Let us not lose sight of the fact that a UCC is the endeavour of the State, which includes the Government, Legislature and the Autonomous District Councils. So, the above institutions should view Article 44 as a directive principle to take the initiative to secure the social and economic freedom of every citizen. Case in point, when the KHADC passed the Khasi Lineage (Amendment) Bill 2018, under the CEM (L) HS Shylla, that sought to deprive Khasi women of their Khasi status if they marry outside the community, the liberals and progressives cried foul. But when the former CEM recently instructed not to give Scheduled Tribe certificates to children born of Khasi parents, if they take their father’s surname, nobody batted an eyelid. So, Article 44 is a directive principle for constitutional bodies to take the initiative to positively secure the social and economic freedom of every citizen, and to repeal the customary laws that would deprive our Khasi children of legitimate inheritance and lineage. No personal law, not even the Khasi Social Custom of Lineage Act, should deprive any Khasi citizen of their personal liberty, and social and economic freedom.
From a Christian point of view, the harm that a UCC may bring is with regards to marriage. Marriage is the first institution in the Christian faith and it is defined as a monogamous and exclusive union between a man and a woman. A UCC may allow for remedy if any person of the Christian faith is deprived of his or her social and economic freedom, under church discipline or canon law. But it is against the Christian doctrine of marriage and outside the principle of Article 44, if a UCC is used to impose a definition of marriage other than that of an exclusive union between a man and a woman.