Uniform Civil Code: Assam going Uttarakhand way?

The Uniform Civil Code has been a legally contentious issue. Despite being envisioned in the Directive Principles of the State Policy as a non-justiciable right under Article 44, as rightly observed by the Supreme Court it is regrettably lied as a ‘dead letter’. However, this explains the situation till the Modi government came into power. UCC envisages a uniform set of laws intended to encompass customary laws across various religious communities, regulating civil matters like marriage, divorce, inheritance, succession, maintenance etc.

It is known that the UCC has been occupying centre stage since the Shah Bano Case (Mohd. Ahmed Khan Vs. Shah Bano Begum, 1985), in which the Supreme Court had adjudicated in favour of Shah Bano. Shah Bano, 62, wife of Mohammad Ahmad Khan filed a petition at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount for herself and her children. Husband gave an irrevocable talaq (divorce) to her which was his prerogative under Muslim Personal Law and took up the defence that since Shah Bano had ceased to be his wife and therefore, he was under no obligation to provide maintenance for her as except prescribed under the Muslim Personal Law, which was in total Rs 5,400. The issue was finally taken up by the Supreme Court and it decided it, in favour of Shah Bano using the secular Criminal Procedure Code regardless of religion.

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It was seen as an attack on Muslim Personal Law by radical Islamists and a section of the political class that believed in the appeasement of radical Muslims by catapulting their radicalism at the cost of progressive ideas and the constitutional mandate in favour of equality before the law and right to life and personal liberty (life with dignity, is an inferred right under Article 21) enshrined in Article 14 and 21 respectively. The then Congress government under Rajiv Gandhi at the Centre resorted to the worst appeasement tactic of the radical Islamists and the Union government brought Muslim Women (Protection on Divorce Act)1986, a law in the Parliament to overturn the decision of the Supreme Court, and it instead provided maintenance to a divorced Muslim woman only during the period of iddat, or till 90 days after the divorce. This remains one of the darkest blots on the progressive, secular credentials of Rajiv Gandhi and shows to what extent humanitarianism can be sacrificed for political brownie points.

Congress has tried to label the Supreme Court judgement as a case of ‘judicial over-reach’, without understanding or by-passing the key observations made by the apex court in this case. The observations made by the Supreme Court, were, (1) the court itself had made clear that it wasn’t a case that involved an issue related to constitutional law and was a simple case of a civil suit related to a dispute over alimony for a divorced Muslim woman and (2) it also held that it is a matter of regret that Article 44 of the Constitution (stating that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India) has remained a dead letter.

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Almost after more than three decades, in 2019, the Narendra Modi government enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalises triple talaq, whereby social justice was delivered to innumerable deserted Muslim women under the arbitrary triple -talaq system, like Shah Bano. The hegemonic Congress system never tried to frame a common civil code for the country and rather, engineered a belief system that the Muslim personal Laws must not evolve from some of its obscurantist observations and it is for the Muslim community to take the load of reforms of their personal laws. As if Muslim women had a lesser stake in the community or in the process of nation-building. UCC will be one of the potent instruments of national integration which will remove disparate loyalties to different sets of personal laws which have conflicting sets of standards, observations and ideologies in operation.

Expecting a Law Board to take the initiative to reform its personal laws, is like asking a surgeon to operate on himself. It is the State which is conferred with the responsibility of enacting a uniform civil code for all religious communities. Constitutionally, the state has the legislative competence to enact the UCC. Now, with Narendra Modi as the prime minister, the BJP government donned with political courage and a just legislative intent, has decisively reached the stage of implementing the UCC. State-wise implementation of the UCC has also begun in the BJP-ruled states, after Gujrat and Uttarakhand, now Assam is following suit.

Himanta Biswa Sarma, executing social crusade

Assam chief minister Himanta Biswa Sarma states his government’s intention to introduce UCC and banning of polygamy by aligning the latter with UCC as a unified piece of legislation, in the first week of February 2024. He has further stated that unlike Uttarakhand, where polygamy has been declared a civil offence, in Assam, it will be criminalised. It will be a much appreciable legislative step. Once enacted, this will be ensuring legal uniformity across all religious communities in the state.

An Indian state has legislative competence to enact UCC which will enhance basic structures of the Constitution like secularism, Articles 14 and 21.

Indian society is multi-cultural and multi-religious in its composition. The framers of the Constitution adopted the concept of religious neutrality and conferred religious freedom to various religious groups and equal treatment to all religious groups in the spirit of our secularism (Jain, 2008). Indian Constitution adopted the principle of non-interference in religious matters with ‘certain exceptions’ (Jain, 2008). When it is said certain exceptions, such guarantees must not be in contravention of the Basic Structures of the Constitution, such as national integrity, sovereignty, Article 14 (ensuring equality before law) and Article 21 (ensuring the Right to Life and personal liberty). The Indian concept of secularism is that the relations between the State, society, and religion are not well defined. Personal laws vary from religion to religion. The precarious position of civil rights of the minorities, particularly, women within marriage, inheritance, divorce, and polygamy within the Muslim Personal Laws, calls for serious legislative intervention to ensure equality before the law and to make Indian Secularism more effective in its practice.

Despite having legislative competence to enact enabling legislations ensuring legal uniformity by bringing UCC into force, such a step requires serious political courage as any such attempt at legal uniformity poses severe challenges from the Fundamentalists and also from the Opposition. Inarguably secularism in India now is too politicised, and it is necessary to find ways to depoliticise secularism and to move it further into the domain of civil society and protection of the rights of the vulnerable sections of society, which does not preclude Muslim women and children. At the outset of the making of the Constitution, the concept of secularism was not categorically mentioned in the Indian Constitution.

The word ‘secular’ was first inserted in the Preamble of the Constitution by the 42nd (Amendment) Act, 1976, which came into effect on January 3rd, 1977. However, the Supreme Court had laid out in the SR Bommai case (1994) that secularism is a basic feature of the Indian Constitution and even without a categorical reference or mention of the term in the Constitution, Secularism has been in practice. And further, held that secularism is a positive concept of equal treatment of all religions. Along with this, the Indian Constitution has spelt out several provisions in Part III (Articles 14, 15, 16, 25, 26, 27, 28, 29, 30), Part IV (Article 44), and IVA (clause (e) that reflects the existence of secularism. An in-depth conjoint reading and analysis of all these Articles makes it evident that the makers of the Indian Constitution neither intended to oppose religion nor to promote rationalisation of any dogmatic practice. Thus, if we go by the adjudication of the Supreme Court and the provisions of the Indian Constitution, it is valid to have equal treatment to all religions and protect their rights not only to practice and profess their respective religions but also to have protected civil rights under a unified umbrella vide the Constitutional provisions.

It needs to be understood that Indian Secularism does not promote the rationalisation of discrimination and marginalisation of sections of its population in the name of religious practices. Also, in matters of the state, religion has no place (SC in S. R. Bommai vs. Union of India, 1994). Further, despite the clear letters of the law, the Supreme Court has interpreted secularism on various occasions via various judgments, through which the most apparent principle that emerges is that the Indian secular state, does not mean anti-God or Atheist. People of all religions in India have equal rights and are free from discrimination. However, reasonable classification can be made and should be treated accordingly. In the light of such Constitutional provisions, UCC stands constitutionally valid and any discriminatory classification under the personal laws by the Personal Law Boards against the weaker section of that community should be held ultra vires.

For example, the practice of Talaq-e-biddat or Triple Talaq is declared illegal, holding that it is not protected under Article 25 of the Constitution as it is not an essential religious practice (Shayra Bano vs Union of India, 2017). Also, under certain circumstances, the State can interfere in religious practices for social reform and the rationalization process should bring about social reforms within religions. Legislative intervention is necessitated by prevailing compelling social situations, where at times the State is compelled to use legal coercion for urgent social reform. It holds for all religions and has happened in the past for significant times. For example, Religious and Charitable Endowment Act, 1951, allows state governments to forcibly take over, own and operate Hindu temples, collect revenue from offerings and redistribute that revenue to any non-temple purposes including maintenance of religious institutions opposed to the temple.

Further instances like the constitutional abolition of untouchability, opening up of all Hindu temples to the people of the ’lower castes’, Hindu Marriage Act, 1955 outlawed polygamy among the Hindus, were held valid because polygamy was not an essential and integral part of the Hindu religion, Special Marriage Act, 1954 also held the same. Similarly, Sati and the Devdasi system in Hinduism and ’triple talaq’ or talaaq-e-biddat in Islam have been abolished, as these were social evils and are not an essential part of the respective religions.

Polygamy, which is still permitted among Indian Muslims, is not legally permissible in many other Muslim countries. This essentially reflects that polygamy is not an essential part of Islam. Hence, for greater social welfare and a reformist purpose of the larger section of the nation, the Uniform Civil Code can also be applied as it is permitted by the Constitution of India (Article 25(2)(b)), providing reasonable restrictions imposed in the interest of public order, morality and health. This clearly states and explains that while individuals have the right to practice their religion, it should not disrupt the harmony of society or infringe upon the well-being of others. Article 25 distinguishes between religious practices and secular activities associated with religious institutions. The State has the authority to regulate or restrict secular activities that may be associated with religious practices, such as social reforms, economic activities, and other activities unrelated to the core aspects of religion.

It also includes the right of religious denominations or any section thereof to manage their own religious affairs, including establishing and maintaining religious institutions, as long as they do not violate any other laws or public order. The State will not interfere in religious affairs, so the State cannot regulate religious activity. However, a secular activity that is associated with a religious matter may be regulated by the State (Article 25(2)). An activity will be treated as religious if it is regarded as an essential and integral part of the religion and will be secular if it is not considered a necessary part of religion and matrimonial rights, divorce, polygamy, property rights, and inheritance do not come under such essential categories.

Secularism enables people to see the imperative requirements for human progress in all aspects and cultures, including social advancement (Basu, 2007). Secularism has also been equated and inter-linked rightly also, to the concept of modernity, equitable distribution of socio-economic development and moral and material advancement, which are neither subjective nor depend on individual whims and fancies but on the greater goal of social coherence, gender justice and nation building. The transformationalist ideology emphasizes social, economic and political development as the greater goal. This ideology recognizes that religion should be limited to the private life of the individual and should try to create scientific perspectives among the individuals. Freedom of conscience for individuals can be circumscribed only by the need for public order and respecting other individuals’ rights, and it remains to be the guiding principle for lawmakers.

Himanta Biswa Sarma government bans Religious Conversion

Assam Healing (Prevention of Evil) Practices Bill, 2024, has been approved by the state cabinet on 10 February to address the issue of fraudulent magical healing practices in the name of treatment. The chief minister stated, “Magical healing is a dicey subject used to convert tribal people. We are going to pilot this Bill because we believe the religious status quo is very important for a proper balance.” The Assam Cabinet decision should be viewed in conjunction with Article 25, a reservoir of religious freedom and secularism in India. Article 25, makes explicit provision, when and how religious freedom is available and when there should be reasonable restrictions. This Article guarantees to every person the right to freely profess, practice, and propagate his religion. In Article 25, the word ‘any person’ has been mentioned, reflecting that voluntary conversion from one religion to another religion is valid as a person is free to have faith in any religion (Rai, 2008). However, conversion by force, fraud, or inducement is not valid because it may disturb the public order.

Also, Article 25 empowers the State to impose restrictions in the interest of public order. Article 25(1) ‘Public order’ here means a thing that disturbs the current of the community’s life and does not affect merely individual. If the situation disturbs the current life of the community, it will amount to a disturbance of public order (Stainslaus v State of MP, 1977). Tribal communities in Assam are provided material inducements by the Evangelical Missionaries, to convert, which is a serious threat to their indigenous cultural ethos. And Himanta Biswa Sarma, in July 2023 already stated that his government is committed to protecting and preserving the cultural identities of the tribal groups of the State. This is in alignment with the BJP’s national agenda of streamlining the preservation of indigenous cultures and maintaining the cultural plurality of India.

Ban on Madrasas not a bane

The Sarma dispensation has resorted to closing down hundreds of Madrasas in the state of Assam. In a candid reply regarding the same, in the famous talk show of Rajat Sharma, Aap ki Adalat, Himanta Biswa Sarma, stated that he wants to create a ‘progressive eco-system’ for the Muslim youth in the state and that he wishes them to receive modern education. The principal premise of the statement relates to the fact that India cannot progress as a nation if its largest minority group remains illiterate and bereft of modern scientific liberal secular education. The National Commission for Protection of Child Rights (NCPCR), India’s apex child rights body (its chief roles include ensuring implementation of the Right to Education (RTE) Act, 2009 and the Protection of Children from Sexual Offences (POCSO) Act), has in May 2023 filed a strongly worded affidavit before the Allahabad High Court in connection with a matter regarding the use of state funding for religious minority education. The writ petition sought direction on whether imparting religious education using government funds is unconstitutional and argued that Madrasa education stands in violation of the Right to Education and Juvenile Justice Act.

In an order passed in March, the Allahabad High Court directed the central and state governments to file their affidavits in the matter. The NCPCR further said that since Madrasas don’t fall under the definition of a school under the RTE Act 2009, constitutionally the institutions cannot compel students to receive such education (stating evidence of forceful admission into the Madrasas without the consent of the parents). Moreover, the affidavit added, the government cannot facilitate education beyond the RTE Act, which would be a violation of Article 21A (free and compulsory education from 6 to 14 years) of the Constitution. The NCPCR further contended that it also violates students’ right to equality (Article 14 of the Constitution), as students of other schools are ensured their rights.

The commission further said that Madrasa education violates Article 15 (1) of the Constitution, which prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. If the provisions of the Constitution are examined carefully, state-owned educational institutions are prohibited from imparting religious instructions, and Article 27 of the Constitution prohibits using taxpayers’ money for the promotion of any religion. Article 30 of the Indian Constitution relates to certain cultural and educational rights to establish and administer educational institutions but maintains certain exceptions, it states, “The state shall not, in granting aid to educational institution maintained by the State or receiving aid out of State funds, on grounds only of religion, race, caste, language or any of them.” A close examination of the Constitutional mandate would clearly state that Madrasa education stands as an impediment to various inviolable Fundamental Rights, which will act as an impediment to the progress of the community if not intervened by the State,

The State has a parens patriae (parent of the nation) role and a duty to provide education in schools, but madrasa education “obstructs” this constitutional mandate. Any state intervention to mainstream this section is praise-worthy. An overtly dogmatic model of indoctrination of the carrying forward of the messianic spirit of Islam along with intolerance for heterogeneity quintessentially characterises Madrasa education. Based on charity and endowments, Madrasa education is only the choice of the poor Muslims and never a choice of the Muslim affluent classes, who send their children only to receive liberal scientific, especially western education. Thus, the marginalised poor section of the Muslim community remains perpetually deprived and underprivileged plagued with numerous social evils and poverty, an ideal material for Jehad. The main objective of secular modern education is to develop a critical mental faculty of logical reflection, a spirit of enquiry and healthy scepticism.

Dogmatic education imparted by the Madrasas stifles the spirit of logical enquiry thereby entirely negating the spirit of liberal education and the ethos of plurality and peaceful coexistence. Modern secular education is the key instrument in bringing social change in any society. It is a basic human right which has immense transformative capacity. On its foundation, rest the cornerstones of freedom, democracy, secularism, the modern World view and sustainable human development. Modern secular education is both a means and an end to itself, for it opens up a vast world of opportunities and ideas to the person who receives it. It is also of great instrumental value in the process of economic growth and development. Education plays a critical role in upholding a society’s progressive outlook, inclusivity and material progress. Binding a child only to religious indoctrination is inarguably detrimental to the psycho-mental and material progress of that individual. In an age of digital literacy, scientific super-inventions, technological innovations, AI and ML integration, needs of super-specialised health services, confining a youth only to religious indoctrination is tantamount to bereaving him/her from equal opportunities and holistic development. This increases the odds of being unemployed as an unidentified factor usually but rationally needs to be considered.

The madrasas in the bordering areas of Assam are funded hugely by the Gulf sources and the Saudi. As per verified reports of Muslim India, 2001, systematic dogmatic indoctrination in fundamental ideology is detrimental to the nation’s communal harmony and hence these madrasas required modernisation. However, modernisation of Madrasas is as difficult as opening a pandora’s box, diverse clerics and ideologies will embark on a turf war over it. Hence a reasonable state intervention to replace Madrasa education with secular and scientific education is the key to the progress of the individual and the community and in turn a great boost to India’s national integrity and secular credentials.

The UCC despite having contrastive interests clashing over the attributes of pluralism, will successfully balance out things by reinforcing social justice in the form of equality, human dignity, gender justice, equal treatment of law etc. Prime Minister Narendra Modi has drawn the line of reference, showing exemplary political courage by deciding to implement the UCC, followed by astute regional leaders like Himanta Biswa Sarma. There should be unified consensus in favour of such revolutionary overhauling of the discriminatory personal laws, without any moral overlaps. Once enacted at the Centre and the states like Assam, it will surely uphold the constitutional morality over any disparate loyalties.

The author is a senior faculty in the Department of History, ARSD College, University of Delhi. Views expressed in the above piece are personal and solely that of the author. They do not necessarily reflect Firstpost’s views.

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