As the guardian of the Constitution and the final arbiter of legislative action " not to speak of its role as the watchdog of the executive " the Supreme Court remains the chief upholder of Indian democracy. Therefore, when the apex court blames the State for failing the Constitution and belying the hopes of its framers, the issue deserves our immediate and utmost attention.
The issue, of course, is the promulgation of a Uniform Civil Code for citizens " one law for one nation " that has not been implemented even though it is enshrined in Article 44 of the Indian Constitution dealing with Directive Principles of State Policy, and 63 years have lapsed since the reformation of Hindu law in 1956.
In a scathing judgment delivered on Friday, the top court criticised the Indian State's lack of will to frame the UCC or even showing any "official activity" towards it, forcing Article 44 to remain a "dead letter" despite repeated exhortations by the judiciary at periodic intervals. The court referred to the judgments in the 1985 Shah Bano case, Sarla Mudgal case and John Vallamattom case.
Speaking for the Bench, also comprising Justice Aniruddha Bose in the Jose Paulo Coutinho vs Maria Luiza Valentina Pereira lawsuit, Justice Deepak Gupta made a crucial observation regarding the cliched argument on UCC that a shift towards it must come from within the Muslim community itself that is apparently still not ready for codification of their personal law.
In the 31-page judgment, Justice Gupta wrote, "A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so."
On the need for UCC, the court's pertinent observation was that "a common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies."
In the Sarla Mudgal vs Union of India case, the Supreme Court observed in 1995, "The governments " which have come and gone " have so far failed to make any effort towards 'Unified personal law for all Indians'. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. When more than 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of 'Uniform Civil Code' for all citizens in the territory of India."
Observing that Portuguese Civil Code, 1867 would apply during rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India, Justice Gupta upheld Goa as a "shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights."
These observations, as the court itself has clarified, are not new but are more topical than ever and may provide a much-needed impetus to one of BJP's core agendas that lies untouched still. The Law Commission's view, through a consultation paper in 2018, that UCC is "neither necessary nor desirable at this stage" but the status quoism expressed in this view has outlived its utility. If the nation, in 2019, is still not ready to implement the Constitution-mandated UCC that seeks to codify civil society laws and give it uniformity (as in the case of criminal law), then the question is why the idea, as enshrined in Article 44, Part IV of the Constitution still exists. Why has this "unimplementable" UCC not been expunged yet, as RSS ideologue Sheshadri Chari points out in Outlook.
On the UCC not being desirable "at this stage", as the Law Commission had noted, it is worth quoting the Supreme Court again in the judgment written by Justice Kuldip Singh in the Sarla Mudgal case. "Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said 'I do not think that at the present moment the time is ripe in India for me to try to push it through'," the judgment reads. It appears that even 41 years thereafter, the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949.
Regardless of the views of the Law Commission or the Opposition that sees in promulgation of UCC a grand "BJP conspiracy" despite its Constitutional status, it is worth noting that the civil society and its views are not cast in stone. In the course of a nation's journey through various stages of development, ideas need to be constantly debated and subjected to scrutiny. This isn't akin to saying that BJP government should impose its core agenda on people who are not ready for it.
But as former union minister and current Governor of Kerala Arif Mohammad Khan points out, directive principles are not judicially enforceable "but fundamental to governance. It means the government should use all its resources to educate people and mobilise public opinion so these principles may be enacted into laws. It is their constitutional obligation, which is not the same as imposing something on people".
Aligned to this is the consideration that the political climate in the country has undergone a nearly radical change coinciding with Narendra Modi-led BJP's political hegemony. Consider the fact that Jamiat Ulema-e-Hind (JuH), one of India's top Muslim body, on Thursday adopted a resolution backing the Centre's decision of abrogating Article 370 and reorganising Jammu and Kashmir into two Union Territories of Jammu-Kashmir and Ladakh.
" ANI (@ANI) September 12, 2019
The organisation's general secretary and former Rajya Sabha member Mahmood Madani also told the media that NRC should be implemented across the country. "The NRC should be carried out in the whole country as it will help determine how many intruders are here. Even those who are genuine are being blamed. So, it should be done. I have no problems with that."
Jamiat Ulema-e-Hind is a group of top Islamic scholars. The resolution passed by the body should be taken note of. It indicates that Muslims are ready to engage with the new idea of India where toxic legacies are demolished and lazy, decades of consensual status quoism is challenged. Muslims are not to be seen as a monolithic block acting as the final frontier of resistance against the BJP.
This change in socio-political climate augurs well for fresh thinking on UCC. The BJP's ideological and political hegemony makes such a discussion conducive. The abrogation of Article 370 " a move stunning in audaciousness, boldness and clarity " has enjoyed nationwide support (including from most of the Opposition and even sections of the Congress party). It points to a change in collective thinking.
It is also an opportune moment to initiate a fresh debate on UCC not just because the top court has given it a push, but also due to the fact that the current political leadership has shown a willingness and stomach for risk-taking and mitigating the resultant pushback. This spending of political capital is imperative if India is to break free from the rustiness of status quoism on an important issue such as the UCC that may go a long way in uniting the nation.