By Our Correspondent
NEW DELHI – The All India Muslim Majlis-e-Mushawarat (AIMMM), the umbrella body of Indian Muslim organisations, has raised serious questions on the intention behind reviving the debate on the issue of Uniform Civil Code (UCC) by the ruling Bharatiya Janata Party at the present juncture. In its strong response sent to the Law Commission of India, the AIMMM has argued that the fundamental rights of citizens cannot be interfered with in the name of bringing uniformity.
While the views and ideas of UCC have in-built contradictions, the people in power have started talking about keeping tribals and Christians exempted from it, the Mushawarat has noted, while asking about the justification for reviving the discussion which was decided by the Law Commission just a few years ago. There was a clear observation that the UCC is neither necessary nor desirable.
In a three-page detailed letter shot off to the Law Commission’s Secretary, AIMMM president and noted lawyer Feroze Ahmed has pointed out that the Goa Civil Code, which some people were citing as a model, was one of the relics of the colonial era and it also did not have one law for all communities. It has separate provisions for Christians and Hindus.
Questioning the intention behind reviving this debate, the Mushawarat wrote in its letter that the timing of the current debate on this contentious issue raises many questions. Political classes with vested interest are trying to inflame emotions and spoil the atmosphere of the country in the background of the upcoming general elections, and will use the idea of UCC to issue provocative statements to serve their political interests and gain electoral benefits.
Significantly, the AIMMM is the only federal body of Muslim organisations in the country. Ahmed had earlier sent a letter to the Law Commission on June 28 in response to the notice issued on June 14 regarding the UCC. He wrote that the window of 30 days in a matter of such huge ramifications for the country was absolutely insufficient. In his latest letter, Ahmed has communicated the detailed response of the Mushawarat to the Law Commission’s notice.
“In our considered view, Uniform Civil Code will not be in consonance with the values which lie at the heart of the Constitution of India. Moreover, the government’s own idea of the UCC is replete with contradictions. There are various problems inherent in the idea of a Common Civil Code for the entire country,” Ahmed has stated in the letter.
The 21st Law Commission had stated in its Consultation Paper titled “Reform of Family” in 2018 that the UCC was “neither necessary nor desirable”. It goes without saying that there has been no transformative change since then which warrants a review of the view taken by the Law Commission itself. The reopening of an issue duly settled by the Law Commission has larger ramifications for the rule of law and such an exercise being undertaken by the Law Commission again is not at all warranted, according to the AIMMM.
Responsible members of the ruling dispensation have stated that the Scheduled Tribes will be excluded from the purview of UCC. As per news reports, Union Home Minister Amit Shah and the head of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, Sushil Modi, are of the view that tribes should be excluded from the purview of the UCC. It goes without saying that the ostensible purpose of the Uniform Civil Code, namely uniformity, will be defeated if a large section of citizens is exempted from its application. Moreover, it also shows that the votaries of the UCC themselves acknowledge that in a diverse country like India, different identities have to be accommodated even in matters of law, Ahmed pointed out.
The question of UCC has a direct bearing on Fundamental Rights. Article 25 of the Constitution gives the citizens of India the right to practise their religion freely. The UCC will infringe upon this right, as it affects the right of citizens to live their lives in accordance with the injunctions of their religion. Also, issues like marriage, divorce, guardianship, custody and inheritance are related to family affairs. The sanctity and privacy of family space will be eroded if the State imposes one law on all in its quest for uniformity. At a time when Indian jurisprudence is becoming increasingly deferential towards privacy and private choices, it would be a travesty of fairness if the State clamps down on deeply personal choices rooted in religion, according to the Mushawarat.
The calls for a Uniform Civil Code have deeply disturbed minority communities in India. Though an attempt is made in certain quarters to give the impression that opposition to UCC exists in the Muslim community alone, Sikh and Christian groups are also deeply alarmed by the government’s attempts to push for it.
Punjab Chief Minister Bhagwant Mann has strongly deplored the idea of a Uniform Civil Code. Paramjit Sarna, president of Shiromani Akali Dal (Delhi), has expressed similar views on the topic in his letter to the Law Commission. The Shiromani Gurudwara Prabandhak Committee (SGPC) has strongly opposed the UCC. The Christian community has publicly expressed its opposition to the UCC, which shows that religious minorities are firmly of the view that enacting a Uniform Civil Code would constitute interference with religious freedom, Ahmed stated in the letter.
The Goa Civil Code is often referred to as a model of equality by the votaries of UCC, because it has a common Civil Code. The Goa Chief Minister has opined that the Civil Code in his state could serve as a model for the country. The Parliamentary Committee on Law also gave special attention to the Goa law while examining the idea of a Uniform Civil Code. Ahmed pointed out that the idea that Goa has a uniform law in the true sense is not correct.
As per the Code in Goa, which was enacted by the Portuguese colonial regime, Catholics can solemnise their marriages in Church after obtaining a No Objection Certificate (NOC) from the Civil Registrar unlike others. The “customs and usages” of the Hindus of Goa have been recognised. Polygamy has been allowed to Hindus subject to certain restrictions. It is indeed ironic that at a time when the entire world, including sections of the Global North, is decolonising history and culture, certain sections in India hold a relic of colonial rule as a model for the entire country, the AIMMM pointed out.
The view that there must only be one law across sections and societies in a country is deeply flawed. Prime Minister Narendra Modi recently stated that a family where different laws govern different members, cannot work. Other supporters of the UCC use the same logic. However, this argument is in teeth of the basic principles of the country’s legal system.
States are free to make their own laws on state subjects. States regularly make their own amendments to laws on concurrent subjects like the Civil Procedure Code, Criminal Procedure Code and the Indian Penal Code. In the Constituent Assembly’s debate on the Uniform Civil Code, such laws were referred to in favour of the view that it was feasible to apply one law across India. However, a bare look at these laws shows that ultimately, they had to be tailored to suit provincial needs by the State Legislatures.
Ahmed pointed out that the government itself had not made it clear whether it had any basic outline or template on the basis of which the stakeholders could give their opinions. News reports suggest that the Uttarakhand draft is being considered as a template for a countrywide Civil Code but the Uttarkhand draft itself is not in public domain. There can hardly be a structured discussion on the UCC unless there is a basic draft which can be critically examined by the interested parties.
It is worth considering the place the UCC occupies in the constitutional hierarchy. Article 44 of the Constitution states: “The State shall endeavour to secure a Uniform Civil Code throughout the territory of India.” Though undoubtedly, the Constitution refers to the idea, it was placed in the Directive Principles of State Policy, and not made a binding imperative because the Constitution makers realised that no section of citizens could be forced to give up laws rooted in their faith and culture.
Thus, the matter was entrusted to the future generations. On the other hand, personal laws which are rooted in religion enjoy the protection of Article 25. It is obvious that the Fundamental Rights enjoy greater importance in our constitutional framework and therefore the personal laws ought not to be interfered with for the sake of enforcing uniformity, Ahmed affirmed in the letter.
The AIMMM contended that the timing of the present discussion raised a lot of questions. The issue has arisen just before the Lok Sabha elections scheduled to be held in 2024. “There is a reasonable apprehension that irresponsible elements in the political class will weaponise the idea of a Uniform Civil Code to incite sentiments and vitiate the atmosphere in the country,” the letter stated, adding that incendiary statements may be given with respect to UCC to serve vested partisan and personal interests and to reap electoral benefits.
In view of the fact that there is no urgency to examine the proposal for a Uniform Civil Code, the AIMMM has recommended in the letter that the present discussion be postponed by a year or two. The enactment of a UCC would not be in the interest of the society and was not in consonance with the larger values which lie at the core of India’s constitutional framework, Ahmed said in his concluding remarks.