By Mohammed Tahir Hakim
The split judgement in the Hijab matter brought to the fore the schism between the constitutional ideas of “uniformity” vis-a-vis “choice”. The proponents of choice have supported the freedom given to Muslim women to cover themselves as they feel free. Whereas the proponents of uniformity emphasize the uniformity of uniform being common for all citizens. Significantly, both views and the two differing judgements are mostly based upon judicial precedents, hence are firmly rooted in constitutional law. It is, therefore, to be acknowledged that the difference of views is on account of conviction of an individual judge and the constitutional philosophy adhered to by him.
In this context, it is important to consider the reason for the difference in views. The same is based on differences in the idea and concept of life, liberty, rights, freedom and the constitutional philosophy emanating from them. For effective enjoyment, attainment and fulfilment of the complete freedom as guaranteed and protected in the constitution, the Supreme Court has read in to the Constitution “choice” as being the most important right given to the citizens. Consequently, privacy, sexual preferences, abortion rights are all held to be protected and guaranteed as facets of choice. Significantly, rights require protection from courts usually in the context of weaker sections and minorities – gender-based, sexual, religious, caste-based etc.
The clamour around the Uniform Civil Code (UCC) can also be understood in the context of this dichotomy between uniformity and choice. By a UCC, the majority seeks to impose uniformity by rule and law. Whereas the minorities, religious minorities in this case, are resisting it on the premises of their choice to follow their personal laws. The diversity in population and their needs also being different, is an accepted and admitted fact. No two individuals are equal in that context. The differences may be of sexes, religion, caste, class, nature, preference, etc. Therefore, no uniformity exists and consequently each group needs to be treated differently and its needs are required to be addressed differently. However, the clamourers for uniformity seek to obliterate this diversity by imposing a UCC that is religion neutral and areligious.
It was, therefore, very relieving to note that the Union of India (ruled by BJP) opposed the petition of Mr Ashwini Kumar Upadhyaya (BJP member) before Supreme Court. However, the Governments of Uttarakhand and now Gujarat want committees to decide the fate of UCC in their respective states.
In support of the view for uniformity in the case of uniform in Hijab case, Justice Hemant Gupta holds that uniformity is the facet of secularism (meaning areligious) and needs to be respected and adhered to by all. Whereas Justice Sudhanshu Dhulia holds that choice is the facet of the preambular basic structure and ideals of fraternity and diversity and needs to be celebrated and inculcated.
The debate around UCC is similar. It is argued that there should be one rule and law for all citizens with respect to marriage, divorce, inheritance, etc. The resultant effect sought to be achieved is that all these should be divorced from the religious beliefs and become “secular”, which is argued to be areligious. Therefore, the freedom to profess, practice and express religion becomes redundant. As against the same, the argument for the choice emanates from freedom as guaranteed and protected in the Constitution and laws prevailing since more than 60-70 years.
In the said context, it is relevant to note that the a model-UCC law already exists in the form of the Special Marriage Act, 1954 (SMA). Under the SMA, the parties to the marriage have the choice to get their marriages registered under the SMA and thereby be governed by the provisions thereunder, which are areligious and at variance with the stipulations in different personal laws. However, it has been the experience of almost 70 years of the operation of the SMA that the SMA is only used in cases where the personal laws do not permit the marriage of two individuals i.e. inter-religious or inter-caste marriages. In a deeply religious country like India, and especially in matters that are deeply personal like marriage, divorce, inheritance, individuals have chosen their respective religious personal laws as against SMA and similar areligious laws. Similar is the case with the provisions relating to adoption. A choice exists between adopting under the personal laws or under the areligious, Juvenile Justice (Care and Protection of Children) Act, 2000 (JJA). In fact, in the case of Shabnam Hashmi v. Union of India, the Supreme Court rejected the challenge to law of adoption in Islam, on the ground that though Islam does not permit adoption, Muslims have choice under JJA.
In view of the aforesaid position, the rejection by choice and by the majority of SMA for marriages, etc and JJA for adoptions, are the most significant pointers to the social rejection of the UCC. Even otherwise also, the choice enshrined as freedom to citizens to profess, practice and also express their religious beliefs and faith in the matters of marriage, divorce, inheritance, etc cannot be obliterated, unless the freedom as enshrined in the Constitution is obliterated. Therefore, the 21st Law Commission also opined and recommended that UCC is neither necessary nor desirable at this stage.
(The author practices law in the Gujarat High Court. The views are personal.)