Uniform Civil Code: Balancing right to equality and freedom of religion

Part IV of the Constitution of India provides for the Directive Principles of State Policy. One such directive principle is enshrined under Article 44 of the Constitution which provides that the State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India. Article 37 of the Constitution clarifies that although the directive principles are not enforceable by any court, they are nevertheless fundamental in the governance of the country. It also provides that it shall be the duty of the State to apply these principles in making laws.

One of the most contentious issues in the country is the Uniform Civil Code. The debate revolves around the clash between the right to equality and the lack of religious discrimination on the one hand, and religious freedom on the other. The Uniform Civil Code seeks to establish a common set of civil rules that apply to all citizens, regardless of religious beliefs, in marriage, divorce, inheritance, and adoption.

In 1985, the Supreme Court in Mohammad Ahmed Khan v. Shah Bano Begum, suggested the Parliament to enact a Uniform Civil Code. The court observed that, “it is a matter of regret that Article 44 of our Constitution has remained a dead letter. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” This was reiterated in Jorden Diengdeh v. S.S. Chopra wherein the Court was of the view that a legislative intervention was warranted in order to provide for a uniform code of marriage and divorce. The court in Sarla Mudgal v. Union of India insisted on the need for a UCC and held that fundamental rights relating to religion of members of any community would not be affected thereby.

After Sarla Mudgal’s case, there appears a slight shift in the judicial trend. The court in Pannalal Bansilal v. State of Andhra Pradesh emphasized that a uniform law, though highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democratic country, laws should be made uniform slowly and gradually and not abruptly. The Government should entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about a comprehensive legislation. The court also clarified that the opinion of the court in Sarla Mudgal’s case is not binding and is merely a suggestion. But, in the year 2003, Chief Justice V.N. Khare in John Vallamattom v. Union of India again insisted that a uniform civil code will help the cause of national integration by removing the contradictions based on ideologies.

Goa: Goa, a former Portuguese colony, has had a Uniform Civil Code since 1961 when it was liberated from Portuguese rule. The Goa Daman and Diu Administration Act of 1962, which was passed after Goa joined the union as a territory in 1961, gave the state of Goa permission to apply the Portuguese Civil Code of 1867, subject to amendment and repeal by the appropriate legislative body. The code was introduced to ensure equality and justice for all irrespective of their religious beliefs. Under the Goa Civil Code, all residents are subject to the same laws regarding marriage, divorce, and inheritance. The implementation of the UCC in Goa has been hailed as a progressive step towards gender equality and social harmony.

Proponents of the Uniform Civil Code argue that a unified code would promote gender equality, modernise laws, and reduce discrepancies that lead to legal ambiguity and disputes. A well-drafted UCC might end discrimination and secure equal rights for women in inheritance, marriage, and divorce. A standard set of regulations that apply to all residents, regardless of religious affiliation, could foster a sense of togetherness and social cohesion. Opponents claim that introducing a UCC will be regarded as an infringement on cultural and religious practices, resulting in opposition and societal turmoil.

In India, personal laws vary widely across communities, regulating issues such as marriage, divorce, inheritance, and adoption. In such a multi-religious society, implementing a UCC presents complex legal challenges. The need to harmonize these diverse laws while respecting religious sentiments and fundamental rights poses significant constitutional hurdles. The constitutional framework requires a delicate balance between individual rights and the state’s responsibility to ensure gender equality and social justice. The implementation of a UCC would require extensive legislative reforms, as it would entail changes in various personal laws pertaining to marriage, divorce, succession, and more. Legal complexities arise due to the intricate interplay between religious texts, constitutional rights, and social practices.

The Right to Freedom of Religion, guaranteed by Article 25(1) of the Constitution, is not an absolute right by nature. All Indian citizens are entitled to freedom of religion, freedom of conscience, and freedom to profess, practice, and propagate their chosen religion, according to Article 25(1). However, it is also subject to the other provisions of Part III, notably Articles 14 and 15’s Right to Equality. However, even if freedom of religion includes the right to be subject to personal law, it does not include the right to continue depriving some groups of persons who are subject to such personal law of equality or personal liberty. As a result, the sovereign legislature may still intervene in matters of personal law.

In Nikhil Soni v. Union of India, the distinction between fundamentally religious practices and secular practices was outlined. The court made it clear that while a practice may be religious, it need not be a fundamental component of the religion. Only those religious practices that are an essential and integral component of religion are protected by the Constitution under Article 25(1). Other practices fall under the category of secular activities, which are not protected and are subject to legislative regulation.

Witchcraft, superstition, ordeals, sati, child marriage, bans on widow remarriage, caste discrimination, triple talaq, and polygamy are examples of practices that may be prohibited or regulated. Therefore, the Legislature would be competent to make a uniform law relating to such secular activities by putting Article 44 of the Constitution into practice once it is held that there are customs and practices which do not constitute part of the essence of religion but are only a secular activity connected with religion.

Any attempt to implement a UCC must be approached with sensitivity and careful consideration of fundamental rights to equality and freedom of religion. Striking a balance between unity and diversity is a delicate task that necessitates careful consideration of constitutional principles and social sensitivities. The aim should be to cultivate an inclusive society that embraces the ideals of equality, justice, and unity, while respecting the cultural and religious diversity.