Implementing a Common Civil Code is a quandary that has confronted our Constitutional Courts and Legislative bodies since the very inception of Bharat. The storied sojourn of the Indian Constitution and its Fundamental Rights jurisprudence have seen a plethora of cases that have sought to usher in a rights-based personal law. Still, the goals of complete justice and equal protection of law remained elusive. The current system is complex, inaccessible and guarantees different notions of justice. On November 26, 1949, “We the People” of India gave to ourselves a Constitution that guaranteed equality, justice, liberty and fraternity. Still, as the Indian legal history would attest for some sections of our citizens, these remained lofty words to be sacrificed at the altar of political convenience. The promise of Article 14, which guaranteed equal protection of the law, was never realised in spirit. For the law did not protect us all equally. On February 6, 2024, the State of Uttarakhand introduced its Common Civil Code Bill, which shall remain etched into the annals of Indian law. This watershed moment has seen 76 years in the making and shall deliver on the promise of the Indian Constitution irrespective of religion to all its people.
The Uniform Civil Code found its existence not in the Fundamental Rights Part III of the Constitution but in Directive Principles of State Policy wherein, under Article 44 “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”. The Bill introduced in the Special Assembly Session of Uttarakhand answers this Constitutional expectation.
Over the years, the Courts have expressed in several landmark judgements the need for a Common Civil Code. In the case of Shah Bano, the Supreme Court deemed it a matter of regret that a Common Civil Code had not been introduced in India. Dr BR Ambedkar had been a proponent of CCC as has been expressed when he stated, “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We have the liberty to reform our social system, which is full of insecurities, discrimination, and other things that conflict with our Fundamental Rights. It is therefore quite impossible for anybody to conceive that personal law shall be excluded from the jurisdiction of the state.”
Upon a cursory glance at the tabled Bill, the one thing that stands out is its unabashed approach to ensuring that civil law does away with dogmas and prejudices codified in religious law that somehow still found its existence in the Indian polity of the 21st Century. The new Bill has taken a purposive approach to guarantee women’s and children’s welfare, flourishing and dignity. Whether this is in the form of banning the practice of polygamy, rampant in certain minority communities, that contributes towards excesses of domestic violence, poverty, negligent and abusive parenting, and broken homes or in the form of practices of Muta and Halala. The laws are used by clerics and patriarchs to strip women of their dignity and agency. The practice of Halala requires women to engage in sexual relations with another man to simply be able to enter into a second marriage. The practice of Muta is used to push young children, orphans and vulnerable women into the trade of trafficking and prostitution. Custom and religion cannot be used to create legal immunity against abhorrent crimes like prostitution, in the same grain as using a custom to carry out heinous crimes with impunity. The Supreme Court is currently faced with a legal petition to apply penal laws irrespective of rights granted under personal laws. The current provisions of statutory rape under POCSO and of child marriage are abused with impunity by benefactors of a medieval, patriarchal, discriminatory and violent law regime. There exists a need to simplify the laws so as to create a democratic and accessible justice system that serves to protect the sacrosanct Fundamental Rights enshrined in our Constitution. The current system creates an inequality of right-holders. A class of citizens that has honed its socio-economic status, individual autonomy and dignity by constituting itself with natural law rights. Another class is stuck in interpretations of holy books that are not in tandem with the notions of constitutional morality and principles of natural justice.
It’s imperative to note that the Bill has been judiciously crafted and does not homogenise a nation as diverse as ours. The Bill ensures that it does not abrogate the Constitutional rights of Scheduled tribes that have earned a customary right to carry out their culture and way of life.
At the heart of the CCC Bill is an attempt to ensure gender and child justice wherein lies the provision that guarantees a uniform age of consent for marriage, a complete ban on child marriage and a ban on polygamy and bigamy. The Bill has legislated that a divorce of a marriage can be granted exclusively by a Court of Law. Thereby ensuring that dogmatic, patriarchal, and unfair customs are written out and women get their fair share. This includes making religious conversions a ground for divorce, which will ensure that marriage undertaken that eventually seeps into a person’s personal agency can be voided by law. The proposed CCC goes further in requiring the registration and recognition of live-in relationships or cohabiting unions for maintenance and in recognising children born from such unions. The law holds that all children are legitimate and shall be entitled to inheritance from both of their parents.
The CCC Bill proposes to simplify and uniformly apply laws of marriage, divorce, inheritance and tax across communities, ensuring that the protection of law in India is granted equally and the promise of the Indian social contract is attained. The Indian struggle for CCC has been long documented, from Shah Bano to Shayara Bano, from Sarla Mudgal to Danial Latifi to John Vallamattom. With the present Bill, Uttarakhand will become the first State since Goa to have a uniform civil law and usher in an era of human development, dignity, flourishing and a rights-based society.
