Time for a Uniform Civil Code?

In October last year, the Government told the Supreme Court - "Gender quality and the dignity of women are non-negotiable constitutional values." This makes it clear enough to conclude that anything - be it a religious practice or a cultural facet -coming in the way of establishing equal rights irrespective of gender would be considered an impediment to functioning of a democratic society and hence a need to weed it out. The Law Commission is seeking public opinion on the Uniform Civil Code which if implemented is expected to rationalise the entire system of personal laws governing the lives of different communities within India.

When the Supreme Court of India held the police ban against the "Tandav Dance" to be not in violation of Constitutional provisions way back in 2004, the religious community leaders saw it as a violation of their Constitutionally guaranteed right to religious freedom. "Anand Margis" in Kolkata who sought to perform the dance in public were agitated. People saw the State as a behemoth curtailing their rights once again when the Rajasthan High Court in 2015 declared the practice of "Santhara" illegal. These and similar other cases point out to the increasing strain between various religious denominations and the State. Hoarse reactions are evoked every time the Supreme Court delivers its verdict. All in all it seems that the religious gurus do not like being told to let go of the atavistic remnants and bring in the much needed change.

Article 25 of the Constitution provides that subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to the freedom of conscience and the right to profess, practice and propagate religion. This means that the right to religious freedom is subordinate to all other rights mentioned in Part III. Further it says that nothing in this Article shall prevent the State from making any law providing for social welfare and reform.

Keeping in view the spirit of the Constitution which strives to create a just and unbiased environment for every citizen to live in, the Supreme Court propounded the Essential Religious Practices Doctrine in the Durga Committee vs Syed Hussain Ali Case, 1961.This meant that there is a certain domain within which the State may not intervene. This domain would comprise of only the essential practices/rites of a particular religion. Delineating the essential part from the non-essential becomes necessary since over years a number of superstitious beliefs, extraneous elements and absurd practices have been thought as being indispensable dogmas to be followed by all. Interpretation of various religious scriptures by those who claim to be learned scholars have given rise to many personal laws and more often than not this interpretation has been found to be in direct conflict with the essence of the religion. These interpretations can change with the changing values and norms of a society. A thing that is considered good now may have been evil ere while. Striving for liberal values in every sphere of life is the hallmark of a progressing society.

Thus, anything outside this domain can be intervened into by the State and this intervention would not amount to violation the right to religious freedom. This intervention becomes necessary sometimes keeping in mind the larger goals defined by the Directive Principles of State Policy. Article 44 of the Constitution in DPSPs says that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India. This means that we shall have only one set of civil laws governing our everyday affairs irrespective of our sex, religion, caste or tribe.

It is time for the All India Muslim Personal Law Board to set aside its obdurate stance against judicial intervention in the issue of Triple Talaq and polygamy. In fact Muslim women themselves want this practice to be abolished. 50,000 Muslim women and men have signed a petition to abolish these practices. The All India Muslim Women Personal Law Board (AIMWPLB) has also sought a ban on "Nikah Halala", according to which a woman who has been divorced through the Triple Talaq route (Talaq-e-Bidat) first needs to remarry, consummate a second marriage, get divorced, observe the "iddat" period and only then can she marry her first husband. For the man there are no such malevolent conditions in place.

The issue at hand is whether we can allow personal laws dictated by a religious community to subvert the rights guaranteed to every citizen by the Constitution. If we allow this to happen, the consequences will be disastrous.