Challenges galore for ‘secular’ civil code
PRIME Minister Narendra Modi continues to be the tallest political leader in the country, notwithstanding the results of this year’s Lok Sabha elections. His comments and statements on key issues merit close scrutiny. This is more so if he uses new terms. This was witnessed in his use of the term ‘secular civil code’ in addition to the constitutional term ‘uniform civil code’ (UCC) during his Independence Day speech this year.
Since the promulgation of the Constitution, the Articles contained in Directive Principles have figured selectively on the agenda of different govts and political formations.
Modi correctly noted that the Supreme Court had repeatedly addressed the UCC issue. Article 44 in the chapter on ‘Directive Principles of State Policy’ in the Constitution requires the State “to endeavour to secure for the citizens a uniform civil code throughout the territory of India”. It is noteworthy that Article 37, which is hardly ever referred to by the political class as a whole or even by the judiciary, is the core of the chapter. It prescribes that “the provisions contained in this Part shall not be enforceable by any court but the principles in it 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”.
Since the promulgation of the Constitution, the Articles contained in Directive Principles have figured selectively on the agenda of different governments and political formations in accordance with their ideologies and policies. Thus, the promulgation of the UCC has been on the agenda of the Sangh Parivar but not the provision which insists that the State shall ‘minimise’ inequalities in income. Does Article 37 give any government the right to pick and choose which Directive Principle to adopt and which to ignore? This question is relevant for it clearly implies that the principles contained in all the Articles in the chapter are “fundamental in the governance of the country”; in other words, all policies have to conform to them.
Returning to Modi’s comments on the UCC, he said the court had issued numerous orders “reflecting the belief of a significant portion of our population — and rightly so — that the current Civil Code resembles a Communal Civil Code, one that is discriminatory”. There are two problems with Modi’s words. First, the court has only given suggestions or asked questions. It has not issued any ‘orders’ because it cannot do so. Second, there is no single civil code at present for there are a number of religion-based codes as well as a non-religion one for marriages. Parliament has intervened extensively in personal laws of some religious groups but less so of others. Modi wants this issue to be extensively discussed with “diverse opinions and perspectives to be thrown up so that the “vision of the framers of the Constitution is realised”. This constitutes a judicious approach as on an issue such as the UCC, it would be advisable to attempt to evolve a consensus among various social sections, even if the majority will ultimately prevail.
In his comments, Modi set out a principle which cannot be confined to the UCC. He said, “Laws that divide our nation based on religion and foster discrimination have no place in modern society”. This laudable conception of a modern society has wide implications and applications. Modi has often asserted that his welfare policies and schemes do not discriminate among religious groups. This is correct. If he is now seeking to incorporate this principle into laws, can he deny it in reservation, even if that requires constitutional amendments? And what about the Citizenship Amendment Act, which is based on religion? Indeed, it assumes that persons pursuing the faith on which a theocratic state is based cannot suffer discrimination. What this assumption overlooks is sectarian discrimination within faiths.
After advancing this basic principle, Modi urged that a ‘communal civil code’ should give way to a ‘secular civil code’ (SCC). Thus, his advocacy of an SCC derives from his general position on “laws that divide our nation based on religion and foster discrimination”. Modi’s view is a welcome development, but some questions need to be raised because it has been the position of a section of ideologues that Hinduism is inherently secular. Hence, the suspicion that the general Hindu concept of marriage may become the basis of an SCC will have to be decisively removed. This is all the more necessary because of some ideas relating to marriage that figure in the Uttarakhand UCC.
The Uttarakhand UCC has adopted the list of prohibited relationships for marriage from the Special Marriage Act of 1954. The latter provides that marriage within these relationships may be allowed if permitted by the custom prevailing in a group. And, state governments are required to notify rules applicable to the group concerned. While doing so, the governments have to ensure that such rules are “certain and not unreasonable or opposed to public policy”. The Uttarakhand UCC also waives prohibited degrees on account of the custom and usage but adds that these should not be “against public policy and morality”.
The concepts of decency and morality are located within Article 19, which relates to freedom of expression, assembly, movement and includes freedom to pursue businesses and professions. Decency and morality can curtail these freedoms as part of the doctrine of reasonable restrictions. The idea of morality in the context of the custom relating to prohibited degrees for marriage has been introduced for the first time. Obviously, there is common social sanction for a large number of prohibited degrees, but what of first-cousin marriages which are customary among adherents of some religions?
How will an SCC treat these? Will it adopt the morality of the group which permits such marriages or will it go by the morality of the majority, which in India does not allow them?
