Personal Laws and the need for Uniform Civil Code
By Byomakesha Kumar Singh
Indian constitution protects the rights and liberties of every citizen of the country. Article 13 of the Indian Constitution talks about judicial review, which means the judiciary can interfere in any law if it hampers the rights of any individual. Almost everyday we hear of the customs which take away the rights of various individuals, be it triple talaq, santhara, the Sabrimala issue or any other issue. The paper delves on what could be done and why a Uniform Civil Code is must in the country.
According to Merriam Webster Dictionary, personal laws are “laws that applies to a particular person or class of persons only wherever situated —distinguished from territorial law”, i.e., unlike the constitutional laws they are not applicable uniformly to all citizens of India. Issues like adoption, will, succession, marriage, etc are decided by the provisions of these personal laws for different communities. There are two things which need to be looked upon. First, there is Article 25, a provision that talks about preservation of freedom of practise and propagation of any religion; and second are those practices which don’t go well with the concepts of dignity and equality, which are obviously our fundamental rights.
It has been held that the courts can restrict a religious practice if it is not an essential element of that religion. It is up to the courts to decide and it depends from cases to cases. For instance, cow slaughter on bakrid was held not to be an essential practice of Islam and could therefore be prohibited for the interest of public order. However, there is no clear procedure on how to determine whether a practice is essential or not. What is needed is a clear procedure to determine them. Furthermore, Article 13 of the Indian Constitution gives the power to Supreme Court and High Courts to review all the pre-constitutional laws and check whether such laws do not take away the fundamental rights of the citizens, and if they do then such laws must be declared invalid. The question arises whether personal laws come under the ambit of Article 13? In the case of State of Bombay v. Narasu Appa Mali, it was held that personal laws do not come under the ambit of Article 13 as these laws are not “laws in force” as contemplated by Article 13. This decision has remained unchanged, obviously due to political compulsions to which, most of the times, the courts fall prey to. The Supreme Court initially dithered on the issue and finally upheld the Bombay High Court’s judgment in the case of Ahmedabad Women’s Action Group v. Union of India. The Supreme Court would be abdicating its responsibilities if it is unable to expand the scope of Article 13 to include personal laws under its ambit. Having grandly declared that the right to life under Article 21 means right to a life of dignity, the Supreme Court cannot now say that Articles 14 and 21 do not apply to the family, which is the smallest unit of society above the individual, and thus create a class of citizens to whom the constitutional guarantee of equality before the law and equal protection of the laws would not reach. There is a pressing need today to revisit the decision in Narasu Appa Malli case.
True secularism is when the state ensures equality to all its citizens, irrespective of their religion, gender or sexual orientation. But today, looking at events happening around the country, the very concept of secularism is under serious threat. Arun Shourie, a famous economist and author rightly said, “Secularism is now a prostituted term.”
What we also need is a Uniform Civil Code, as enshrined in the Article 44 of the Indian Constitution. In the case of Sarla Mudgal v. Union of India, the Supreme Court pointed out categorically that when eighty percent of the laws are codified, why can’t we have a Uniform Civil Code? The same has been reiterated in the case of John Vallamattom v. Union of India that it is a matter of great regret that Article 44 of the Indian constitution has not yet been fully implemented.
An interesting aspect to this will be the case of atheists (people who don’t believe in god) and LGBTs (Lesbians, Gays, Bisexual and Transgender). Most communities shun out LGBTs, so what law would be the most appropriate to govern them, as in order to be governed by their own personal law, they need to be accepted as a part of it first. Similarly, an atheist should be governed by which personal law is a question of doubt, even though his family believes to belong from a religious group, it is his choice to profess any religion or not.
Some lessons from the experience of other similarly situated countries, especially in Asia, may also be learnt in this context. Indonesia, a predominantly Islamic country, which has a plurality of laws in the form of customary laws, Muslim law and civil law introduced by colonisers, has been consistently making efforts in this direction, which have not yet been fully successful. Some similar ideas and suggestions have been given by some scholars so as to bring a uniform civil code in India. We may analyse all these examples and suggestions in order to create a consensus on this issue. But as long as this consensus is not reached, any attempt to realise the goal of uniform civil code will not only remain unsuccessful, it will also be inconsistent with the Constitution.
However, the Law Commission report stated, “Resolution of this conflict does not mean the abolition of difference. This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. 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.”
Hence, what can be done is that discrepancies pertaining to an individual religion can be removed by the intervention of the state and the judiciary if it is in contravention of the constitutional principles. What is also needed is awareness on the part of citizens. Proper education is must in order to make them differentiate between right and wrong, equality and inequality. Only then will be India a welfare state for all of its citizens.
 Mohd. Hanif Qureshi v. State of Bihar, A.I.R. 1958 SC 731.
 A.I.R. 1952 Bom 84.
 Ahmedabad Women’s Action Group v. Union of India, (1997) 3 SCC 573
 Personal Laws And Supreme Indecision, Available at: http://www.livelaw.in/personal-laws-supreme-indecision (Visited on 30 November, 2018).
 (1995) 3 SCC 635.
 (2003) 6 SCC 611.
 Ratno Lukito, Legal Pluralism in Indonesia (2013).
 Narendra Subramanian, Nation and Family Personal Law, Cultural Pluralism, and Gendered Citizenship in India (2014).
 Law Commission Says UCC Neither Necessary Nor Desirable At This Stage, Available at: https://www.livelaw.in/law-commission-says-ucc-neither-necessary-nor-desirable-at-this-stage (Visited on 30 November, 2018).