AN ALTERNATE CONCEPTION OF THE UNIFORM CIVIL CODE – A CHOICE BASED MODEL THROUGH SHABHNAM HASHMI

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I.                INTRODUCTION

India’s modernist ambition to have a Uniform Civil Code (‘UCC’) is inscribed into Article 44 of the Indian Constitution as a non-enforceable Directive Principle of State Policy (‘DPSP’). Initially, after independence, UCC was not an important issue of national debate (p.439). Only after the 1980s, especially after Mohd. Ahmad Khan v. Shah Bano, that UCC has become a hotbed of controversy (p.439). Since, the discourse around UCC has been extremely thorny, rising form the two way tension tension between securing religious minorities their right to follow their own believes and the modernist impulse to have a single ‘rule of law’ apply to every individual.

The usual conception of UCC is that it would abolish all personal laws, effectively infringing the individual and the community rights to religious practices and expression. While the proponents of UCC argue that such is required to bring modernity and reform, its opponents contend that the same would infringe on their personal laws violate their constitutionally protected rights (p.215). However, this conception of the UCC, as given in Article 44, is erroneous. UCC was not meant to be a blanket law abolishing all personal laws. This might seem like an unintuitive claim to many but is not at all controversial. A simple reading of the Constituent Assembly, where Dr. B.R. Ambedkar stated that a UCC can ‘apply only to those who make a declaration that they are prepared to be bound by it’ and can be ‘purely voluntary’, would allow one to make that inference.

So, UCC, as opposed to popular imagination, can possibly be built on a choice-based framework where it can selectively apply to those who consent to it. This has to potential to provide some relief against oppressive narrow practices without attracting ills that the alternate conceptualization of the UCC would, such as majoritarian imposition and infringement of rights of minorities. This blog normatively argues for the desirability and the practicality of such a choice-based framework where secular and religious laws can coexist. It makes use of the landmark case of Shabnam Hashmi vs Union of India (‘Hashmi’), which, it argues, provides a starting point for conceptualization of such a framework. In doing so, it does not wish to provide an airtight policy prescription as to how the model can be created. Rather, it has the modest aim to shed light on an alternative conception of UCC which has not received much scholarly attention and facilitate discourse on a better, perhaps more agreeable, note.

The structure of the blog is as follows. Firstly, it uses Hashmi to lay down the theoretical contours of the choice-based model. Secondly, it explains how the model can be applied to different areas of personal law by using divorce as an illustration. Thirdly, it rebuts counterarguments that attacks the practicality of the model.

 

II.             THEORETICAL CONTOURS OF THE CHOICE-BASED MODEL

In Hashmi, the issue before the Supreme Court was whether Muslims can adopt or be adopted under the Juvenile Justice Act, 2000 (‘JJ Act’) when Muslim personal law disallows adoption and only allows for limited guardianship under the Kafala system. More essentially, the Court had to answer if secular legislations, as a matter of choice, can be opted for, if that would mean going against personal laws. The petitioner contended that the JJ Act is a secular legislation, enabling any person, irrespective of their religion, to adopt. She drew a comparative to the Special Marriage Act, 1955, which similarly enabled any person living in India to get married under the act irrespective of their religion. To the contrary, the All India Muslim Personal Law Board (‘AIMPL’) filed a submission contending that since the JJ Act allows for alternative models of taking care of children such as foster care, which would technically be in par with the Kafala system, they should be exclusively allowed for Muslim persons. The Court held that that the JJ Act is an enabling legislation and that it works in tandem with Muslim Personal Law, thus giving Muslims an option to opt for it if they wish to adopt (¶16).

Justice Gogoi, while highlighting the importance of the judgement, rightly observed that it is ‘a small step in reaching the goal enshrined by Article 44 of the Constitution’ (¶16). He clearly did not envision UCC as a blanket provision to eradicate religious laws since he allowed the Kafala system to act in tandem with the JJ Act. Instead, he conceptualized UCC to mean a uniform provision that can apply to anyone but works without necessarily eradicating personal laws. Instead of making the actual personal law the direct target of reforms, the Court’s reasoning targeted the specific issue of Muslim individuals not having the right to adopt. The simple principle it upheld was that if the individual has the right and freedom to profess her religion, she cannot be subjected to personal law if an alternate exists.

Legislations that are built on such principles can possibly cover other areas of personal law, where individuals are giving an option to be subjected to legislation’s provisions, without having to repudiate other religious practices that they desire to follow. This can provide respite to individuals who otherwise have suffer from having no alternatives, like in the case of Hashmi. Such a legislation would also not offend community believes, as much as a law or a judgement that abolished personal laws would.

As far as being a novel alternative to an over restrictive UCC, one might argue that it is like judicial interventions like Shah Bano, where the Supreme Court extended the right to maintenance under Article 125 of CrPC to Muslim women. But the choice-based model is distinct for two reasons. Firstly, such a model does not entail invalidating any religious practice. Thus, the process of process of testing religious practices against the anvil of constitutional rights, which is long and tedious, does not arise. Secondly, this model posits a more agreeable solution. Post Shah Bano, there were hostile protests from the Muslim community since their religious sentiments were hurt. The instant model allows for preservation of religious sentiments to a better extent since personal laws are being preserved, as has been also pointed out before.

 

III.           APPLICATION OF THE MODEL – USING DIVORCE AS AN EXAMPLE

The previous established the theoretical basis of the choice-based model and argued that it can possible be extended to other facets of personal laws. This section concretizes the argument by illustrating how the model can be extrapolated to different areas of personal law by using the example of divorce. It describes three types of provisions, based on the choice-based model, that would be required in a hypothetical Uniform Divorce Law (‘UDL’). It does not propose that these provisions suffice, or are even the bare minimum, for creating any Uniform Law. Rather, its aim is to explain how the choice-based model can be manifested. The explanation draws analogies from the Special Marriage Act, 1954 (‘SMA’). Since SMA allows for individuals to marry interfaith and intercaste without repudiating their religion, it is perhaps the closest legislation we have to the choice-based model.

Firstly, a provision to opt-in is required. In case of SMA, one needs to go through a certain procedure to marry (for instance, consider Section 5, which lays down the procedure to notify the intended marriage) which acts as tacit consent. Individuals who marry under SMA automatically choose it to be the law governing their marriage. But if an individual marries under their personal laws, what divorce laws should they be judged under? An answer can be that both the parties can opt for either when they choose to divorce. But that is liable to create tensions as each party would opt for the framework that benefits them, which can be different. Another solution is that a provision allowing for a contract can be put in place that the parties can sign any time before they decide to get a divorce that shows their consensual desire to be judged under the civil framework. This would be like Barbara Stark’s conception of a ‘Marriage Contract’ which entails signing a contract before a marriage delineating certain expectations, duties, etc.

It must be noted here that SMA already has provisions for divorce. But they can only be enforced if individuals choose to marry under SMA in the first place. Alternatively, the proposal here is to have a separate act where individuals specifically opt for divorce while being able to marry under religious laws.

Secondly, in discussing grounds of divorce, grounds that violate should be those that are against notions of human and fundamental rights (such as cruelty, adultery, desertion etc.). This approach has been adopted in the SMA in delineating grounds for divorce and for additional matter like laying down conditions for a valid marriage. This would relieve claims that uniform laws end up in majoritarian imposition on the believes of minorities by modelling such laws on majoritarian ideas.

Third, there should be procedure for allowing divorce without invoking religious authority. In SMA, there are provisions for a ‘Marriage Officer’ who facilitate the marriage (u/s 3 of the SMA). This ousts the authority of religious heads like Pandits or Maulanas in solemnizing a marriage and brings marriage within a civil framework. Similarly, for divorce, designated government officials should facilitate the process.

These provisions would ensure that divorce under a uniform law happens based on the parties’ consent and under a civil framework. Such provisions can be extrapolated to other areas of personal laws like maintenance, inheritance, etc. While any actual policy would have to inculcate other considerations, such a framework has the potential to act as a starting point for uniform legislations.

 

IV.           DEFENDING THE MODEL’S PRACTICALITY

Till now, this blog has established that the choice-based model is theoretically desirable and that it can possibly be manifested into secular and uniform legislations. But is it practically beneficial? There are two counterarguments that would say it is not. This section rebuts both.

Firstly, it might be argued that multiple legal frameworks working in tandem can leave the judiciary in a perplexing situation. For instance, if religious ceremonies are conducted alongside opting in for civil laws, how would the issue be adjudicated? But, if one looks at comparative cases from countries with similar legal systems, adjudicatory principles that help in avoiding such a conundrum can be derived. For instance, in Avitzur v Avitzur (‘Avitzur’) the New York Court of Appeal had to decide whether a religious law on marriage, that worked in tandem with a civil law, is enforceable? In the case, a Jewish couple has married under both their religious and civil laws. While their marriage under the civil law broke off in 1978, but the husband declined doing the formalities to break their marriage under religious law. The Court held that the religious agreement was enforceable and ruled in favor of the wife. While the matter was religious to its core, the Court applied civil principles of contract law to reason that since the couple had married under the civil law, their obligations under the same were overarching. Therefore, it said that an agreement ‘entered into as part of a religious ceremony does not render it unenforceable’.

Similarly, in Bruker v Marcovitz, the Canadian Supreme Court had to decide if a moral obligation under a religious law can be transformed into a legal obligation if marriage has happened under civil law. In Bruker, a couple, who had married under civil law and religious law, divorced under the former. Religiously, there was a moral obligation to provide a divorce, but the husband refused due to which the wife could not marry for 15 years. Consequently, the wife sued. The Court held that owing to an overarching obligation, there is nothing to prevent a person from transforming a moral obligation into a legally binding one.

The underpinnings of both the courts are simple. If an individual opts in for civil laws, obligations that are created are overarching which can override personal laws, if the need arises. The same, which was also propounded in Hashmi, can be applied to adjudication. Primacy would be given to civil laws. In interpreting religious obligations, if the need arises, it would be done so to allow the civil law to be achieve its objectives, as was observed in Avitzur and Bruker.

Secondly, one might argue that since personal laws are being allowed to survive next to a uniform code, oppression per se is not diminishing. This is because those who are oppressed tend to lay at the lower rungs of power structures, thus it is arguable that they can exercise any choice that is given to them. While the contention is not baseless, it is not a fair evaluation of the model either. The argument does have merit and the blog rightfully concedes to the fact that the impact of such a model would be diminished by entrenched power structures that plague the India society.

But what needs to be understood is the incremental benefit of the choice-based model. Take Hashmi’s example, where a woman wished to adopt but could apparently not due to opposition of personal laws. There would be other individuals like her, in matters of marriage, adoption, divorce, etc. who, even when they an option to exercise their autonomy, cannot be due to absence of an alternative. The proposed framework targets these individuals. In any case, such a model is the best alternative. The other two paradigms include not having a UCC or having a blanket UCC. In the former, the status quo continues with the narrow-targeted base having to also face oppression. The latter, as explained, is a contentious issue which cannot be implemented. It has been observed in events such as Shah Bano or the Hijab case where undoing of personal laws leads to religious protests. The model thus, despite of its infirmities, has incremental benefits, which the other alternatives do not provide.

 

V.             CONCLUSION

The contemporary conceptualisation of enacting a UCC in India, as explained, is erroneous. This blog aimed to initiate discourse in a new direction. It proposed an alternative model for bringing about a UCC through a choice-based framework. It used the landmark case of Shabnam Hashmi to draw the theoretical contours of such a model, arguing that is a distinct from previous instances that reformed personal laws and that it provides a novel approach to enact the goals of Article 44 of the Constitution. Then, it used SMA, 1954 as an illustrative example of the model to demonstrate how the same can be extrapolated to other regions of personal laws. Lastly, it rebutted counterarguments that attacked the model’s practicality and proved why the model is one of the better options that we have.