The Constitution's Article 44 promises a Uniform Civil Code, which provides for harmonious laws for marriage, divorce, inheritance, adoption and other family matters across the country.
Currently, all communities are governed by their personal laws. Most of these are codified like the Hindu Personal law, but some remain problematically uncodified -- like the Muslim Personal Law.
A Uniform Civil Code was the dream of the Constitution makers. While Article 44 was introduced and passed the same day, a few Muslim members wanted to amend it to leave room for the communities' discretion to allow the UCC to prevail over personal laws.
During the debate that followed, Dr Bhimrao Ambedkar, India's first law minister and the Chairman of the Drafting Committee of Constitution, had said: "I am afraid I cannot accept the amendments which have been moved to this Article... My friend, Mr Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform code of laws for a country so vast as this. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts, and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country."
The hearing before the nine judges is not just about the entrance of women of childbearing age to Sabarimala. It is a larger issue of women's rights and whether regressive, exclusionary customary practices can stand in a modern constitutional democracy.
The hearing on Wednesday took an interesting turn, when one of the judges on the bench, Justice Joymalya Bagchi, asked Senior Counsel Indira Jaising if the Supreme Court can implement an "incremental Uniform Civil Code".
An incremental Uniform Civil Code means that in absence of a legislation by the Union government that brings all communities under one umbrella of laws governing personal and family matters, the Supreme Court or the High Courts, with their powers under Article 226 and Article 32, continue to strike down regressive customs and practices which are violative of equality and dignity.
This piecemeal approach has been the norm in India.
This was what happened in the case of Shah Bano (1985) when a Muslim woman came to the Supreme Court to claim her right to maintenance following a divorce -- a right which was available to most women from other communities.
The Supreme Court laid down that a woman has right to maintenance even after the period of iddat (three months) is over.
After the then Rajiv Gandhi government overturned the judgment with a legislation (Muslim Women Protection of Rights on Divorce Act, 1986), the top court in the Constitution Bench judgment of 2001 -- Daniel Latifi case -- read the right of maintenance to Muslim women under Section 125 of the CrPc, bringing it under the ambit of criminal procedure code.
Similarly, in the case of Shayara Bano (2018) when instant triple talaq was struck down, the Supreme Court bench led by then Chief Justice of India Justice JS Khehar had suggested that the government bring in a legislation. The Centre, however, insisted that the Supreme Court take up the matter.
The court eventually issued a 3:2 judgment on instant Triple Talaq.
The rights of Syrian Christian women to property (Mary Roy vs Union of India ,1986) to the pending fight of Parsi women and the Daudi Bohra Muslims have showed how there is a dire need for harmonising laws pertaining to each section and community. That harmonisation can only be done by a legislative move of bringing in a Uniform Civil Code.
The NDA government had made a promise of bringing in the Uniform Civil Code in their manifesto. But the complications around the idea, especially tribal rights, have delayed a legislation.
In absence of such a law, the Supreme Court is called upon to look at each case and decide on its constitutional validity.
Ideally, if there were a Uniform Civil Code, judicial intervention would not be required and the Supreme Court would not have to take charge.
The Conundrum Before The Nine-Judge Bench
The bench is now facing questions the top court has so far avoided.
One of the reasons was the absence of a legislation that brings in a Uniform Civil Code. The court will now have to decide the scope of Article 25 and Article 26. In deciding the scope of freedom of religion and the ambit of freedom of denominations, the court will have to clarify the relationship of these two rights with the right to equality and right to life.
The court will also have to lay down whether practices exclusionary and discriminatory for women can survive the test of fundamental rights.
In absence of a Uniform Civil Code, it is the incremental sweep of the Constitutional courts that will pave the way for equitable participation of women in religion and society.
