By Ajay Justin Odathekal
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” reads Article 44 of the Constitution of India, which forms part of the Directive Principles of State Policy. Why is this Article part of the Directive Principles, one may wonder, especially considering that Directive Principles are non-justiciable, i.e. not enforceable in court. To answer that question, one has to go back in time and look at the lofty principles that were at work when Directive Principles were formulated. At about the time when the Constitution was being formalised, India was in a nascent phase of its democracy – ‘roti, kapda and makaan’ (food, clothing and shelter) were the prime concerns – a Welfare State was still a distant dream, with a very grim present standing in the way. The need of the hour was to ensure basic human rights – but the framers of the constitution could not leave their work at it, no, they had a dream for India, and that dream saw India become a Welfare State.
In order to pave the way for that dream to be realised, the framers of our Constitution developed the Directive Principles, borrowing the idea from Directive Principles of Social Policy as laid down in Article 45 of the Constitution of Ireland. The idea was to implement these Directive Principles once the country had matured to such a level that it could strive to become a Welfare State. So, the recent debate on Uniform Civil Code should essentially be premised on the question – Are we mature enough to implement this Directive Principle?
The answer to that question, alas, is not as straight forward. What does a Uniform Civil Code in the Indian context mean is the first question that springs into mind. Uniform Civil Code in the Indian context would mean that all the ‘Personal Laws’ of Indian citizenry will be replaced with uniform laws that apply across the board. Naturally, the next question arises in our mind – What are ‘Personal Laws’? ‘Personal Laws’ are laws regulating topics such as marriage, adoption, maintenance, succession, etc., i.e. laws that regulate the private affairs of individuals. Currently, the major religions in India have their own personal laws, covering almost all of the above areas. As for those religions which do not have ‘Personal Laws’, they either follow the personal laws of other religions or simply follow the ‘areligious’ Personal Law statutes such as Special Marriage Act, whenever available.
From a distance, therefore, the Uniform Civil Code would appeal to an objective observer. But, the question that must be answered without fail before we set about implementing the Uniform Civil Code in India is two-fold: 1. What benefits do we seek to achieve by implementing a Uniform Civil Code? and 2. Will it do more harm than good to the present social fabric of India?
Answering the first question is relatively easier. The biggest advantage that the proponents of Uniform Civil Code highlight is the fact that it would help eradicate social evils. Yes, there are multitudes of social evils that are currently practiced and propagated in India under the guise of it being protected under the Personal Laws. Be it avunculate marriages practiced in southern India or the practice in certain sects of Islam of divorcing a wife by pronouncing ‘talaq’ thrice – these social evils must come to an end. And if the Uniform Civil Code helps eradicate these social evils, it should definitely be supported.
That being said, one must also realise that what it really takes to end these social evils is not merely a Uniform Civil Code, but instead, a strong-willed political establishment. After all, it was not the Uniform Civil Code that put an end to the evil practice of ‘Sati’, but the decisive legislation by Lord William Bentick at Raja Ram Mohan Roy’s behest.
The second question is what should make us ponder deeply – It is no secret that a political party is fiddling with the idea of Uniform Civil Code with the distinct aim of scoring political brownie points in upcoming elections in a State. It is precisely this premise that should make us wonder if it is ripe time to try and impose a Uniform Civil Code in India. The purpose of the Uniform Civil Code should be to unite the masses, and not divide them – something that seems to have been lost on the proponents of the Code.
For a Uniform Civil Code to be successful, it is imperative that social evils such as caste system, untouchability etc. be completely eradicated from the Indian polity. Only then the lofty ideals of equality and welfare that the Directive Principles espouse can exist. However, it remains a sad reality that even after 69 years of independence, we are far from eradicating those social evils, let alone controlling them effectively. So, would a Uniform Civil Code be able to eradicate the social evils we have failed to eradicate in 69 years? I am constrained to think that Uniform Civil Code is perhaps not the panacea that we direly seek. Given that the current proponents of the Code seem to be motivated by misguided objectives, it would be necessary to conclude that implementing the Uniform Civil Code in today’s India would do more harm than good.
Yes, in certain ways, our democracy has shown signs of maturity. Our elections are free and fair, and we have remained a democracy consistently since the British left, even though most other countries that became independent around the same time have seen democratically elected governments displaced by Coup d’etat or being turned into dictatorships. But in many other aspects, we still behave like a nascent democracy, sometimes stubbornly by refusing to show the level of maturity that is expected from a country of our stature. We forget that discussions as the current one regarding the Uniform Civil Code should be had with the interest of developing our country into a Welfare State in mind and not for petty political gains. We have failed to take decisive measures to curb the social evils that cripple our society and keep pushing us back by decades. Untouchability, caste relations etc. are played as trump cards around elections to secure votes and further polarise the society. If we really wish to implement a Uniform Civil Code, what we need to do is to first create an environment of equality, where every man is given a fair and equal chance of success in life. It will take years of education and strong willed political mandate to achieve that goal. Once we have achieved that, we would have attained the maturity to implement an ideal as lofty as Uniform Civil Code.
Ajay Justin Odathekal is a lawyer-turned-diplomat.
