The renewed push for a Uniform Civil Code, which many communities perceive as an encroachment into their personal laws and religious rights, is underway even as a nine-judge Bench of the Supreme Court is yet to decide the “ambit and scope” of religious freedom itself.
It has been three years since a Constitution Bench of the Supreme Court framed seven questions of law linked to religious freedom, rights and practices in the Sabarimala case.
The first of the seven questions is “What is the scope and ambit of the right to freedom of religion under Article 25 of the Constitution?” The reference in the case is still pending. The questions remain unanswered by the court. Of all the nine judges on that Bench, only two — Justices B.R. Gavai and Surya Kant — are currently serving in the Supreme Court.
Meanwhile, Prime Minister Narendra Modi has given a public thrust for a UCC by highlighting the discriminatory practices against women in the personal laws of certain religious communities. His speech came just a week after the 22nd Law Commission of India issued a public notice for a fresh debate on the common law.
The Opposition and minority bodies have reacted that a common civil code was not in tune with Article 25, which provides protection and freedom for all to practice their religion and customary laws.
The core issue at the heart of both the Constitution Bench’s question on religious freedom framed in February 2020 and the recent controversy over the UCC is the tussle between discrimination on religious grounds and the right to preserve one’s religious identity through personal laws based on religion, customs and usages.
The 185-page consultation paper of the 21st Law Commission of India, largely ignored for the past five years, recommends a balancing act between the equal treatment of all religions and religious diversity by codifying personal laws. It said the “issue of uniform civil code is vast, and its potential repercussions, untested in India”.
The paper, published in August 2018, cautioned the government against compromising cultural diversity “to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation”. It had noted that “most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy”.
“In the absence of any consensus on a uniform civil code, the Commission felt that the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution. In order to achieve this, it is desirable that all personal laws relating to matters of family must first be codified to the greatest extent possible, and the inequalities that have crept into codified law should be remedied by amendment… History shows that amendments to codify personal laws is not only a tried and tested way of bringing targeted social legislation but also of developing jurisprudence on family laws,” the 21st Law Commission recommended.
The 21st Law Commission view to test personal laws against fundamental rights is in tune with Justice DY Chandrachud’s separate opinion in 2018 countering Bombay High Court’s 1951 judgment in State of Bombay versus Narasu Appa Mali, which had held that personal law was immune from constitutional scrutiny. “This (Bombay High Court’s view) detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality,” Justice Chandrachud had observed.
The paper had stressed that the term ‘secularism’ would have meaning only if any form of difference, social or religious or cultural, did not get subsumed under the louder voice of the majority, and at the same time no discriminatory practice hides behind the cloak of religion‘ to gain legitimacy.
The paper had advised the state to restrict itself to the role of an “enabler of rights rather than an initiator, particularly in sensitive matters such as that of religious personal laws”.
The Commission paper recounted Dr. BR Ambedkar‘s position in the Constituent Assembly debates that if at all a “future parliament” introduces UCC, it should also “make a provision that the Code shall apply only to those who make a declaration that they are prepared to be bound by it”.