Critical Analysis of the Uniform Civil Code
A lot of rhetoric has been importing in the debate to analyze the situation of UCC but it all boils
down to the consistency of this deemed to be law. In the scope of analyzing UCC under the rule of law, a major argument is that Uniform Civil Code is backed constitutionally under article 44, but the actual dispute of UCC originated in the Constituent Assembly debate of 23 rd November 1948 wherein an amendment was moved by Mr. Mohamed Ismail Sahib to establish a Legislative power under article 35 to create a uniform civil code and further render this capacity under parliamentary sovereignty. This amendment was the source of the codification of UCC although it was an unfriendly amendment and was further failed by the assembly. Further in testing the constitutionality of UCC Article 26(2) stands in potential contravention where the phrase manages its affairs in matters of religion' has to be interpreted in the desired sensitivity to the satisfaction of the court. Here the desired sense as mentioned previously is drawing an analogy between the matters of religion and religious personal laws where their congruency is the most desired outcome.
The other major problem with the UCC is that the volume of subjects under its ambit is
enormous and diverse and is further regulated, in the present time, by specified statutory acts and personal laws. A lot of laws here are derived from customary practices dating back to several years therefore the emotional conduct of these laws could never be compensated by a UCC. Now in order to evaluate how these customary practices are established, we will have to use the apparatus of International Law. In International law, a custom is established through the provisions of the Customary International Humanitarian Law which are also recognized in India, and the establishment of custom here is also regulated by the aforementioned Law. Under para 44 of the Customary International Humanitarian Law, it has been categorically mentioned that a custom is established on two elements that are1. General Practice 2. Opinio Juris. General Practice is a ranging discontinued practice and Opinio Juris is a legal obligation for that custom.
These customary elements are also called the 'Two Element Theory' and are formally recognized under Article 38(1) (b) of the ICJ Statute. Now it is essential to understand that how religion is
actually codified in law. There were several regulations of law before the effect of the
constitutions amongst which few were eclipsed with the effect of the Constitution under article13 and others were, those who were consistent with the constitution were established as customs, under the previously explained elements, till specific legislation was passed for its codification.
Now coming back to the contemporary aspect of UCC, critics often state that India's acceptance of Sharia and other religious laws violates the principle of Equality before the law which is based on the concept of horizontal equality. Whereas the scope for inequality is based on the concept of regulation, if there are no regulations then how can the activities of the government be termed discriminative although with 2 fair exceptions of financial and penal irregularities. As it has been clearly mentioned in S. R. Bommai v. Union of India that The Constitution does not recognize, neither it permits, mixing religion and state power. Politics and religion cannot be mixed. Any State government which pursues nonsecular policies or non-secular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356 Therefore violation of secularism widely stands out to be the failure of state machinery as determined under article 356.
The question of UCC not only infuriates civic values but contains greater constitutional value
since it is an indirect conflict between Parliamentary Sovereignty and Secularism where both are a part of the basic structure of the Constitution of India, but the resolution of this dispute lies in the same case where the major issue arose with the Basic structure in place and that case in Keshavnanda Bharti v State of Kerala, where infamous IC Golaknath Judgment was overruled which previously held that Fundamental rights can't be amended and the Keshavnanda Bharti case propounded that any provision of the constitution can be amended but the amendment has to be consistent with the basic structure of the constitution of India.In the case of conflict between two essential parts of the basic structures, the rationalizing body, which is the Supreme Court, is given the power to decide with fair deliberation.
It is true that Dr. B.R. Ambedkar, on the face of it, supported the Uniform Civil Code and there has been a lot instance that he has been quoted by the patrons of the Uniform Civil Code but actually, he was vastly misinterpreted. He very categorically held the view and I quote we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country." Here, he meant that codification of the religious as well as cultural norms of groups in India will be an exercise in vain since we already have so rich customary provisions to rely on. Furthermore, it is evident that codification of such vast diversity is a really difficult task and any omission of such, regional, cultural, religious, existences will be a grave violation of fundamental as well as, previously mentioned, constitutional rights.
In conclusion, I would love to bring to the notice of the reader that if in any future conflict we
find any provision or activity in contravention to morality or the constitution - There is a clear
provision under article 25 clause (2) sub-clause (b) which states that noting in article 25 prohibits
the state from making any law on secular activities which may be associated with religious
practices and further the wisdom of the legislature shall be imported to the rescue.