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Equilibrium Between Articles 25-28 and 44: The Imperative for a Uniform Civil Code

author Aravindan Anandan
Aug 01, 2023
Striking a balance between equality and religious freedom requires unbiased deliberation and intellectual rigour, but the current debates surrounding the UCC are often politically motivated.

This piece was originally published in the India Cable – a premium newsletter by The Wire and Galileo IdeasTo subscribe to The India Cable, click here.

Proponents of a uniform civil code (UCC) argue that it will promote equality and justice, while its opponents fear that it may lead to the erosion of minority rights and cultural diversity.

Striking an equilibrium between Articles 25-28 and Article 44 of the constitution while implementing the UCC is of utmost importance to ensure that this process is not just a political ploy, but the intellectually deliberated pursuit of harmonious governance.

The need for a UCC must not be driven by emotional arguments of either the majority or minority communities, nor should it be a political charade. Instead, it must be approached with intellectual labour and rigorous deliberations, considering its implications on the diverse fabric of the nation.

Article 44 of the constitution, which promotes the UCC, is a Directive Principle of State Policy (DPSP). These principles are guidelines for the government to achieve social and economic democracy.

The UCC, as a DPSP, calls for taking into account the evolving nature of the country and its society. Any effort to implement the UCC should seek to preserve and respect the unique cultural identities of various communities.

The current political move found support in the judgement by Justices Kuldip Singh and R.M. Sahai in Sarla Mudgal vs Union of India (1995). In this landmark case, the judgement raised the question of a common civil code and its potential implications for the freedom of religion guaranteed by the constitution. The case remains a pivotal reference in the ongoing discourse about a UCC.

Also Read: Narendra Modi Knows an Actual UCC Will Be an Electoral Disaster for Him

Sarla Mudgal emphasises the need for a UCC as a solution to the issue raised in the case, holding that the second marriage of a Hindu husband after conversion to Islam, without dissolving his first marriage under law, to be invalid.

The court, emphasising on misuse of personal laws, reiterates that Article 44 of the Indian constitution mandates the state to secure a UCC for all its citizens. A well-implemented UCC can rectify such discrepancies and ensure gender justice and equal rights.

Justice Singh’s observation in Sarla Mudgal highlights that in the absence of a UCC, individuals might attempt to misuse religious freedoms to evade legal restrictions.

Justice Sahai also opined that practices associated with different religions may appear excessive or conflicting to others, but they are matters of conscience and should be approached with respect. Reason and logic may not play a significant role in such matters; instead, emotions need to be tempered with sincere effort.

The need for a UCC is acknowledged, but its successful implementation requires the cooperation of enlightened individuals, statesmen and leaders who can create a conducive social climate.

Their stance, however, was strongly criticised by the distinguished constitutional lawyer H.M. Seervai, in an article titled ‘Uniform Civil Code: Judiciary Oversteps its Brief’ (Times of India; July 5, 1995).

The article highlighted that the judges had ventured beyond the scope of the case and addressed the idea of a common civil code.

Justice Kuldip Singh’s argument, linking the absence of a UCC to Hindu men converting to Islam to marry multiple wives, was deemed specious. Justice Sahai dissented and emphasised that religion encompasses more than just faith and belief. The judges overlooked Article 145(5), requiring majority concurrence, rendering their opinion on the compatibility of a UCC with freedom of religion inconclusive.

Seervai pointed out that the judiciary cannot enforce Article 44, which calls for a UCC, as it falls under the purview of the executive and parliament.

One of the core principles behind the demand for a UCC is to ensure gender justice and equal rights. A well-crafted code should address discriminatory practices in personal laws and promote a more equitable society.

But the UCC must not be used as a tool to impose majority beliefs on minority communities, or to attack their cultural practices. A balanced approach that respects diversity and protects minority rights is crucial.

Upon examining the Constituent Assembly debates, it is evident that B.R. Ambedkar believed in the significance of a UCC.

Dr B.R. Ambedkar (L) after presenting the constitution to the first president Dr Rajendra Prasad (R). Credit: Unknown author/Wikimedia Commons. Public domain.

While considering the Special Marriage Act, his stance on the importance of individual choice in matters of marriage aligns with the principles reflected in the Act. Ambedkar emphasised that a UCC should be implemented voluntarily, considering the sentiments and preferences of various religious communities in order to foster a harmonious evolution of a uniform civil law.

The inclusion of the UCC in the DPSP should be seen as a guiding principle for formulating laws and policies, rather than a strict mandate.

The current debates surrounding the UCC are often politically motivated. Instead of engaging in mere rhetoric, policymakers must focus on drafting a comprehensive law that considers the diverse religious freedoms and practices while ensuring constitutional objectives are met.

The quest for equilibrium between Articles 25-28 and Article 44 while implementing the uniform civil code is a multifaceted challenge. It requires intellectual rigour, unbiased deliberations and a deep understanding of India’s diversity and cultural fabric. A well-crafted UCC can foster gender justice, equal rights and social harmony, without compromising the essence of India’s unity in diversity.

Striking this balance is essential for building a progressive, inclusive and just society for all citizens. Also, it is essential to recognise the significant value of Article 25-28 of the constitution, which enshrines the right to freedom of religion as a fundamental right.

The expectation from the 22nd Law Commission is that it will adopt an impartial, consultative and attentive approach in understanding the complexities surrounding the uniform civil code, and consider the viewpoints of all relevant stakeholders before formulating any recommendations or proposals on the matter.

Aravindan Anandan is assistant professor, School of Legal Studies and Governance, Vidyashilp University, Bengaluru.

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