Different laws for various religions goes against equality

While criminal laws are uniformly applicable to all irrespective of religion, caste or creed of persons, equality before law and equal protection of laws is the bedrock of the fundamental principles of our Constitution. This would mean that the same law has to be applicable to all citizens. Yet, our personal laws are based on religion to which persons belong. Thus Hindus are governed by the Hindu Marriage Act, 1955, Hindu Adoptions and Maintenance Act, 1956, Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 etc. The Christians are subject to The Divorce Act, 1869, Indian Succession Act, 1925 etc. Muslims are governed by the Muslim Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriages Act,1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986. Parsis are governed by the Parsi Marriage and Divorce Act, 1936. Secular Laws such as the Special Marriage Act, 1954, The Foreign Marriage Act, 1969 and the Indian Christian Marriage Act, 1872, are applicable to persons irrespective of their religion. 

When the Constitution declares the country as a Secular State and envisages equal laws as its fundamental principle of administration of justice, to have different laws for different religious persons is against its very spirit. Therefore, the framers of our constitution introduced Article 44 in  the Directive principles of the Constitution of India that says, “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” 

The Constitution of India was adopted by the Constituent Assembly on November 26, 1949 and came into force on January 26, 1950. Sixty-seven years have passed by and yet we are still unable to pass a Uniform Civil Code as mandated by the Constitution.

Uniform Civil Code though good for an equitable society, needs to be truly secular and non-imposition of the majoritarian Hindu law on the other religious persons. Discussions about Uniform Civil Code is raised only as a reaction to pronouncements pertaining to the Muslim law. With the right wing BJP government at the centre, imposition of Uniform Civil Code would naturally be thrusting of a Hindutva Code on the minorities. 

Without even a draft bill of Uniform Civil Code, there is a loud discourse on passing one such Code. The need of the hour is to first form an all-inclusive drafting committee with legal experts from all religious faiths, get a draft ready, circulate it widely, get inputs from the general public and other experts and finalise the bill in a consensus manner. The said draft drawn out through such consultations and consensus could be passed as the Uniform Civil Code. Until then, we could rather maintain the status quo and suffer with different laws than be thrust with any fundamental right wing philosophy over ruling the citizens of this country. 

A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law such as for dealing with business and negligence lawsuits and practices. A jurisdiction that has a civil code generally also has a code of civil procedure. 

— The writer is a senior advocate, Madras High Court