Is the UCC good or evil? First of all, there is a wrong and a right way to look at UCC. The wrong way to look at UCC is as a means for the majority community to impose its ideals on the minorities. This narrative is not only factually wrong but also divisive, and it is such a polarisation that is politically beneficial to some sections of the political class. But what is lost in this narrative is the history and principle of the UCC. The right way to look at UCC is in the context of Fundamental Rights because it is there that we will find its true history and principle.
The UCC made its way to the Constitution of India through the Sub Committee on Fundamental Rights. Fundamental Rights are what define a Constitutional Republic. Democracy is often said to devolve into mob rule. Fundamental Rights exist to protect the rights of every citizen, and to prevent the nation from devolving into mob rule.
To this end, the Sub Committee was entrusted with the task of drawing up a list of Fundamental Rights to be incorporated into the Constitution and form the basic structure of the Constitution. These Fundamental Rights were to ensure the political freedom of the citizens and to protect them from intrusive State action. But they were also aimed at securing social and economic freedom for every citizen. And it is in the draft submissions of this Sub Committee that the UCC entered as one of the provisions.
The Sub Committee was looking at making a draft list of justiciable Fundamental rights, i.e. those rights which can be enforced by the Court, and non-justiciable Fundamental rights. The UCC made it to the list as a non-justiciable right. So, the consensus of the Sub Committee was that the UCC was best kept outside the purview of the Court. The justiciable rights made it to the Draft Constitution of the Constituent Assembly as Fundamental Rights, while the non-justiciable rights, including the UCC, were provided as ‘Directive Principles of State Policy.’
The reason the UCC was provided as a non-justiciable right and as a directive principle, was because of religious sensitivities. The Constituent Assembly deliberated on the UCC on 23rd November, 1948 and subsequently adopted into the Constitution of India as Article 44, under the ‘Directive Principles of State Policy’ with the words: “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
But what is lost in the current political climate and divisive narrative is the fact that the UCC was provided and debated in the context of Fundamental Rights. The principle of the UCC was to secure social and economic freedom for every citizen, while the Fundamental Rights were to secure political freedom for every citizen. Therefore, the UCC cannot conflict with any of the Fundamental Rights, including the Right to Freedom of Religion, as provided in Article 13(2): “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
Second, what is also lost in the current narrative is the fact that the UCC, as one of the Directive Principles of State Policy, is non-justiciable, i.e. it is not subject to enforcement by the Court. Article 37, in the Directive Principles of State Policy of the Constitution, states: “The provisions contained in this Part shall not be enforceable by any court, but the principles laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” Thus, neither the Government and the Parliament of India, nor the Governments and Legislatures of the states, nor any legislating body such as the Autonomous District Councils, can be forced to implement the UCC.
Third, what is also lost in the current narrative is the fact that the states are not obligated to set aside any existing laws in the state relating to marriage and inheritance, even if the UCC is passed by Parliament, because the states have the authority to make laws with regards to marriage and inheritance, as these are subjects that both the Parliament and the state Legislatures can make laws on, as they are listed at point no. 5 in the Concurrent List of the Seventh Schedule of the Constitution.
Fourth, what is also lost in the current narrative is the fact that the UCC itself is an integral part of the Constitution, and therefore, it cannot be unconstitutional in any way. Therefore, the provisions of the Sixth Schedule of the Constitution will also apply to the UCC. Therefore, the protection afforded to the Tribal areas through the Autonomous District Councils with regards to their ability to make laws relating to marriage and inheritance in Paras 3 (h) and 3 (i) of the Sixth Schedule and the protection afforded to the Tribal areas with regards to any Act of Parliament in Para 12A (b) of the Sixth Schedule, shall also apply to the UCC.
Fifth, what is also lost in the current narrative is the fact that no draft of the UCC has even been presented, which means that in effect, we are merely debating the idea of UCC without any content or substance. This is like pulling the cart in front of the horse. Lastly, and most importantly, what is lost in the current narrative is the legitimate remedy that the UCC can bring to many disadvantaged groups, like women and children.
For example, why should Muslim women suffer under forced polygamy even while remaining monogamous themselves? We cannot say that such suffering is condoned in the name of secularism. I believe that all conscientious Muslims will agree that there must be a remedy in the Court in case such customs result in the violation of the Fundamental Rights of any woman, such as Equality before the law and the Protection of life and personal liberty, which then results in the deprivation of social and economic freedom of any citizen.
Therefore, based on the above considerations regarding the history and principle of the UCC, a draft UCC should be prepared with thorough deliberation of all communities to arrive at a ‘minimum basic agreement’ to ensure that no citizen is deprived of his or her social and economic freedom. I believe that all conscientious persons of any faith can agree that while there are instances where the adherents of their faith may be religiously condemned or corrected, yet such administration should never have the effect of violating the social and economic freedom of any citizen.
Therefore, in view of the above considerations, we must not subscribe or contribute to the polarising narrative, and historically inaccurate and unprincipled view of the provision for UCC in Article 44. Any attempt by any political party, on either side, to skew the facts regarding the meaning of the UCC may be taken as politicking or pandering to their vote bank.
Any attempt by any government, present or future, to use Article 44 as a means to violate Right to Freedom of Religion, or to impose the ideals of one community on another, will be unconstitutional and inaccurate in its application of Article 44. It will be challenged in the Court, as Fundamental Rights are justiciable, while Article 44 is not. But since no draft UCC has even been presented, it is not clear if the present government is even attempting to do this, in spite of the polarising narrative. So, with all of the aforementioned facts, the question remains: is UCC good or harmful? The answer is yes.
The UCC is good in that it can bring about a uniform protection of individual rights and personal liberty that would otherwise not be afforded due to religious sensitivities. It is a truism that abuse comes in all forms, and religion and social customs are no exceptions. A UCC need not necessarily outlaw any religious tradition or social custom, but it may allow for an aggrieved person to seek remedy in a Court of Law, in the instance of violation of his or her social and economic freedom. I have given the example of a woman who may be forced to cohabit in a polygamous setting. Such undue suffering cannot, in the name of religion, be left without remedy. The prohibition of Child Marriage Act, 2006, is an example of a law that was enacted to protect the rights of children, which may be violated by tradition.
Let us not lose sight of the fact that Article 44 puts the UCC as the endeavour of not just the Union, but also of the states and the Autonomous District Councils (ADCs). So, the State and the ADCs should view Article 44 as a directive principle to secure the social and economic freedom of every citizen. A case in point when the KHADC passed the Khasi Lineage (Amendment) Bill 2018, that sought to deprive Khasi women of their Khasi status if they marry outside the community, the liberals and progressives cried foul.
But when the former CEM recently instructed not to give Scheduled Tribe certificates to children of even both Khasi parents, if they take their father’s surname, nobody batted an eye. Article 44 is a directive principle for our Autonomous District Council to take the initiative to positively secure the social and economic freedom of every citizen, and to repeal the customary law that would deprive any Khasi children of legitimate inheritance and lineage. No personal law, not even the Khasi Social Custom of Lineage Act, should deprive any Khasi citizens of their personal liberty, and social and economic freedom.
From a Christian point of view, the harm that a UCC may bring is with regards to marriage. Marriage is the first institution in the Christian faith and it is defined as a monogamous and exclusive union between a man and a woman. A UCC may allow for remedy if any person of the Christian faith is deprived of his or her social and economic freedom, under the administration of church discipline or canon law. But it is against the Christian doctrine of marriage and outside the principle of Article 44, if a UCC is used to impose a definition of marriage other than that of an exclusive union between a man and a woman.
