Written By Tushmi Udyalak
In a recent Judgment of Satyaprakash Meena v. Alka Meena, by the Delhi High Court, Justice Pratibha M. Singh commented on the need for a Uniform Civil Code (“UCC”). She opined that there is an ever-prevailing need to institute and draft a Code which is common to all, and a harbinger of uniform principles being applied in respect of marriage, divorce, succession etc to have homogenous principles, safeguards and procedures in place. Article 44 which falls under a Directive Principle of State Policy shouldn’t in the opinion of the court, remain a mere hope. In the 1985 Judgement of Ms. Jordon Diengdeh, the Ministry of Law was directed to take appropriate steps regarding the same. With over three decades passing, there hasn’t been much progress in the same aspect.
The judgement was delivered in early July, 2021, wherein the couple belonging to a Meena Tribe had a dispute surrounding validity of a judgment by a family court rejecting the divorce decree. There was a confusion regarding procedural concerns of whether Hindu Marriage Act, 1955 or Meena marriage rules should be applied to the couple.
- Background to Uniform Civil Code
Article 44 of the Indian Constitution has laid the premise for the institution of Uniform Civil Code (“UCC”). Cases such as Mohd. Ahmed Khan v. Shah Bano Begum, Jordan Diengdeh v. S.S. Chopra and Sarla Mudgal v. Union of India have helped in forming jurisprudence for the subject matter. UCC aims to protect minorities and other vulnerable members of the society such as women, keeping in mind Ambedkar ideals of gender equality and accessibility of minority communities. It aims to filter out the complexity of personal laws by simplifying the process and creating a homogenous law which remains uniform in applicability and acceptability.
Secularism in the Indian context is positive secularism. It was opined in S.R. Bommai v. Union of India, that the State is interested only with the relation of man to man, and not with the relation of man with god. Progressive developments have advanced since the debate of UCC, such as the adoption of Special Marriage Act, 1954 which permits two people of different sex to form a married union irrespective of their surrounding faith, or religious belief. This facilitates marriage proceedings outside the pre-defined customs and personal laws of the respective faiths. The parties are no longer obligated under law to change or convert their religious identities to effectuate marriage. This makes way as against the gender-stereotypical institutions of marriage against women, wherein she is expected to convert her religion to marry from outside her own. The demerit that has been however observed, is that there is overgrowing semblance in the Special Marriage Act with the Hindu Marriage Act. The critiques have often taken the angle of imposition of majority beliefs on the minority instead of formulating inclusive, heterogenous laws which not only are inaccessible to the minority religions but also inadequately address and fail to uphold their cultural values. A UCC with a plain homogenous structure, if legislated with the intention of purely avoiding administrative inconveniences, would be a serious impediment on Indian Secularism as the values not only allow one to preach, profess, and practice their religion or faith, but also choose if they want to adopt it or not. B.R. Ambedkar in the Constituent Assembly had a balanced approach towards solving this problem by not imposing it on the masses at once. According to him, it was to be laid down as a voluntary statute for the general public. Law Commission Consultation Paper on Reform of Family Law, 31st August 2018 lays down a consensus building mechanism where the UCC is an outcome of contribution by all religious stakeholders and otherwise. The process begins with correcting the flaws in the various personal laws and finally adopting the UCC once all the stakeholders are on board.
- Inclusion of Tribes under Hindu Laws:
Section 2(2) of Hindu Marriage Act renders its inapplicability on members of Scheduled Tribe within the meaning of Clause 25 of Article 366 of the Constitution, unless the Central Government by notification of an official gazette directs otherwise. An attempt is often made by the courts to analyse whether the parties have Hinduised their customs and forgone their previous tribal rituals. Notably, certain practices have outlined themselves as ways to certify Hindu way of life, such as:
- The name of the parties and their families are Hindu names
- Time of death of a family member Pinda is performed
- Women don’t wear vermilion or ornaments after demise of her husband,
- Shradh ceremonies are performed ten days after death.
Necessary emphasis needs to be laid on the fact that by virtue of a mere lifestyle, abduction to another religion takes place, foregoing individual and tribal indigenous identities. Sociological inference cannot be ruled out to ascertain the influence of popular and majority rituals that are broadcast to influence and softly hegemonize their primacy on tribal indigenous identities. It becomes as easy as that for a court, to then ascertain whether the person was following practices of a majority religion or of their minority tribal customaries.
There exists a said distinction between when someone from a tribal community claims for a practice to be customary in nature. A custom is considered as the guiding principal which acquires the status of law, however the party claiming custom has to plead and prove that such custom has been ancient and certain. Upon such pleading, it is upon the Court to decide the validity of impugned custom. An analysis leads the author to realise the denied importance to customary practices and increased burden of proof on the claimant. Not only is one expected to show lucid proof for the existence of a custom, but they also have to depend upon the Court’s judgment to analyse the sanctity of such custom. In addition to that, X from ST Caste, cannot claim to have a customary practice if they are unable to find the roots and origins of such custom. An induction in Hindu/other common religions thus not only becomes an easier route for the sake of legalities, but also for the purpose of claiming rights as it becomes a known fact that people from tribal communities not only lack time, but resources to fight legal battles surrounding their identity, religion, and background.
- Uniform Civil Code and the Tribes
Given such a pre-existing volatile setup, not only is it far-fetched imagination to hope for minority rights to be included in the realms of a UCC, but also a utopian dream to expect majoritarian politics to favour the minority lifestyle. Prima facie, the setting up of a UCC will ease administration and homogenise legislation, but the underlying costs vary from a threat to secularism, to neglection of minority identities and superimposition of majoritarian concepts of law.
In November, 2016 the Law Commission opened suggestions from tribals on the possibility of having a UCC. It is interesting to note how a seemingly welcoming platform was given to tribal communities, most of the people who are either fighting for their right to reservation, or protection of Adivasi interests. The Rashtriya Adivasi Ekta Parishad had even filed a petition in the apex court seeking protection of their religion and customs, including practices like polygamy and polyandry. Such practices would be abrogated and abolished to an extent, in the placement of a UCC which embodies and enshrines common principles which are acceptable to the majority communities. In any case, a selective application of UCC would defeat the legislative intention of common and homogenous applicability to the citizens irrespective of their religious affiliations.
It remains pertinent to highlight for the author, that there already exists huge academic discourse on the subject matter questioning the feasibility and viability of UCC in present times. In a country such as India, with ideals of democracy, secularism, protection of minority cultural institutions, as secured by the Constitution itself, the discourse is viably extended to evaluate the extent of success that may arrive upon uniform application of a UCC. Given the nature of identity crisis that tribals and Adivasis face in not only the political, but social, ethical, religious and moral realm, it not only becomes the duty of academic scholars and activists to highlight the scenario, but also take active measures to prevent further exploitation. With political propagandas, it is rather easy to silence intersectional voices by passing the mic to a privileged face of the community who may not represent the ground reality for most part. In a situation like that, it is imperative to refuse and deny majoritarian principles from being applied to the tribal and Adivasi communities. It is already a given fact of reality that religious abduction, forceful conversions, and silent inductions into religions take place for ease of legislative protections and guarantees to the said communities. However, the motive for regularising a UCC should not be to only make administration smoother and homogenous, but to reinstate an environment of acceptability of diversity, inclusion of tribal communities and better disposition of justice. Till the point that is achieved, the UCC would be seriously lagging behind in both merit and thought.