"Goa has what Constitutional framers envisaged for India - a Uniform Civil Code. And I have had the great privilege of administering justice under that Code. It applies in marriage and succession, governing all Goans irrespective of religious affiliation”, said the outgoing Chief Justice of India SA Bobde at a function in Goa, with the incoming CJI and the Law Minister in attendance.
Taking into consideration the fact that in pursuance of several PILs in the month of March this year, a bench headed by the CJI had sought the Centre’s stand on gender and religion-neutral uniform law conferring succession and inheritance rights on citizens, one can surmise that the outgoing Chief Justice of India, via his pronouncement in favour of the Uniform Civil Code, was throwing down the gauntlet to the second senior-most judge of the Supreme Court and the incoming Chief Justice of India to adjudicate on the vexed issue of the viability of personal laws in a secular and democratic republic.
Is the birth of a UCC, midwifed by the Supreme Court of India, finally on the horizon? Fastidious watchers of the Supreme Court would counsel cautionary optimism. The apex court has been dallying with the idea of having uniform laws in respect of marriage, divorce, inheritance, adoption and so on, applicable to all religious communities since the founding of the Republic.
The institutional approach of the superior courts of the country towards matters calling attention to the dichotomy between the preservation of visibly discriminatory personal laws and the constitutional directive to secure social justice and equality of status to all the citizens has varied between conformism, activism, grudging conformism and reluctant activism.
Phase I: Conformism and Legal Pluralism
If Warren Hastings’ 1772 regulation directing the application of the laws of the Quran to the Muslims and that of the Shastras to the Hindus in respect of disputes concerning inheritance, marriage, caste and further religious observances constituted the first move to recognise group identities in post-medieval India, then, the judgement of the Bombay High Court in State of Bombay v. Narasu Appa Mali (herein after referred as Narasu Appa) unwittingly served to ossify those identities.
In the extant case, the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act of 1946, a punitive law against bigamy even before the enactment of the Hindu Code Bills which criminalized polygamy among Hindus in the 1950s, was challenged on grounds of violation of the right to profess, practice and propagate religion under Article 25 as well as the violation of the right to equality under Article 14 of the Constitution as the law expressly exempted Non-Hindus from the purview of its application.
Despite holding that personal laws were outside the ambit of fundamental rights, the Bombay High Court effectively insulated uncodified personal laws from judicial scrutiny.
According to Article 13 of the Constitution of India, all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III of the Constitution dealing with fundamental rights, shall, to the extent of such inconsistency, be void.
The Court adjudged that uncodified personal law do not fall within the ambit of laws in force and thus, could not be held to be in derogation of the fundamental rights. The Court’s verdict in the Narasu Appa case was puzzling because on one hand, while uncodified personal laws could not be tested on the touchstone of the Indian Constitution, their catalogued counterparts along with ordinary laws, codified into legislation, could not escape judicial scrutiny.
By not taking recourse to legal universalism and failing to treat individuals as the basic unit of society with uniform legal rights, the Bombay High Court virtually left citizens to the tender mercies of uncodified personal laws. The Bombay High Court’s conformism to the outcome of the Constituent Assembly Debates (“CAD”) on the Uniform Civil Code resulting in the adoption of a gradualist approach towards the enactment of the UCC as enshrined in Article 44 eventually won the day and reinvigorated the doctrine of legal pluralism in the Indian constitutional jurisprudence, thus perpetuating a false equivalence between the existence of minority rights and the unnatural prolongation of diverse personal laws.
Phase II: Activism and Legal Universalism
Three decades hence, in 1985, the Supreme Court took the strongest stand yet on the need for a Uniform Civil Code in the case of Mohd. Ahmed Khan v. Shah Bano Begum (hereinafter referred as Shah Bano). While examining a matter involving a conspicuous conflict between civil and criminal laws pertinent to the obligatory provision of maintenance by a Muslim husband to his divorced wife, the Court rued the fact that despite the state’s legislative competence, Article 44 had continued to remain a dead letter.
Rejecting the husband’s argument that mahr, or the money and the possessions paid by the groom, to the wife at the time of the Islamic marriage, was equivalent to the amount payable by the husband to his wife upon divorce, the Court drew from both, ordinary as well as customary laws and ruled in favour of the divorced woman. While holding that the maintenance provisions under Section 125 of Cr.P.C. were religion-agnostic, the court, justifying its UCC-centric activism, held, “[i] nevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.”
While the Shah Bano judgement, premised on the doctrine of legal universalism, indeed broke several religious barriers by allowing all distressed women to seek remedy under ordinary law in respect of limited personal matters, the circumambulatory exercise involving the exegesis of gender-sensitive provisions in the Quran and the ensuing controversy could have been avoided with a simple review of the Narasu Appa judgement. The principle actus curiae neminem gravabit, or an act of the court shall prejudice no one could have been invoked to recall and revise the ratio of the Narasu Appa case which made uncodified personal laws immune from judicial scrutiny.
Phase III: Grudging Conformism and Legal Pluralism Redux
It took the Supreme Court less than two decades to turn the clock back and restore the dominance of the doctrine of legal pluralism in the Indian constitutional jurisprudence, in the case of Danial Latifi v. Union of India in 2001. In this case, the Muslim Women (Protection of Rights on Divorce) Act, 1986, the consequence of nationwide demonstrations by the Muslim community irked by the Shah Bano ruling, was challenged before the Supreme Court.
Despite the Act being evidently worded to enable the Muslim husband to circumvent his maintenance responsibilities towards his divorced wife by limiting the payment of maintenance amount only for the period of Iddat, or the mandatory waiting period that a Muslim woman must observe after the death of her husband or after a divorce, during which she may not marry another man, as well as the involvement of Wakf Boards in resolving maintenance disputes, thereby compelling only Muslim women to seek extrajudicial redressal of maintenance-related grievances and violating the equality provisions enshrined in Article 14 and Article 15 of the Indian Constitution, the Supreme Court upheld the Act using a technical ‘rule of construction’, according to which a legislature does not intend to enact unconstitutional laws.
The Danial Latifi judgement embellished the doctrine of legal pluralism, precipitated by the Narasu Appa judgement and in complete derogation of the fundamental right to equality of status, perpetuated the application of differential treatment to groups of citizens who were similarly circumstanced.
Phase IV: Reluctant Activism and Waxing Legal Universalism
More than a decade after the Danial Latifi judgement, in 2017, Shayara Bano v. Union of India and Ors. afforded the Supreme Court yet another opportunity to bury the ghost of Narasu Appa for good. The ratio of Narasu, once thought of as being only a transitional judgement had clearly overstayed its welcome.
However, the court adopted a narrower approach instead and annulled the practice of Talaq-e-Biddat or irrevocable, instant divorce which could be given by a Muslim husband to his Muslim wife in a fit of rage, in a drunken state, even if a husband is misled, even if the husband is ignorant, even if compelled, or even in jest.
In its majority judgement, the Court rationalized its intervention on the ground that since Talaq-e-Biddat was recognized and enforced under Section 2 of the codified personal law, namely the Shariat Act of 1937, and because it was a manifestly arbitrary practice, therefore it did not deserve to be protected under Article 25.
While the Supreme Court maintained the status quo by not tinkering with the ratio of the Narasu Appa judgement which made uncodified personal laws immune from judicial scrutiny, it did however offer some hope for the progressive and gender-sensitive interpretation of personal laws as well as offered a glimpse of the increasing significance of the doctrine of legal universalism in the Indian constitutional jurisprudence in the times to come.
However, pending the recall and revision of Narasu’s ratio, piecemeal reforms, even with the enthusiastic support of the courts will not take us too far in our quest for a Uniform Civil Code. Narasu Appa Mali represents the proverbial Augean Stable, waiting for the currents of River Alpheus to wash away the accumulated grime in the form of recall and revision. The question is whether our honourable judges are willing to play the role of Hercules and clean the stables? Until then, the words of the outgoing CJI will remain nothing but a storm in a teacup.
(The authors are a Supreme Court advocate, and a final-year law student at Campus Law Centre, Delhi University)