Balancing interests of uniform civil code and individual freedom

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Uniform civil code in India is very contemporary and has been always a debatable issue. When the topic strikes the notion of ordinary man it is usually primarily assumed some things related to our religious freedoms that are being curtailed although which to my understanding is not true in essence. Uniform civil code has to stand by the test of basic structure of our constitution and has to amplify it protects religious freedoms as well as uphold the sanctity of individual liberties while its principles are implemented in essence.

The principle of uniform civil court touches the very basic aspect of the secular citizenship which is provided to the citizens of India. While referring the aspect of citizenship the rationale behind that is to determine the relationship of citizen with the state. In India that relationship of state with its citizens is based upon the secular character and uniform civil code is being viewed and debated as one of the facets of secular character of state. India being the finest example of adopting a liberal democratic setup it has to treat its citizens equally with its emphasis that its citizens are cherishing all ideas of liberties enshrined in the constitution.

It is obvious in the liberal democratic set up; neither the court nor state can interfere in religious matters nor can dictate or interpret the terms of the religion adopted by the individuals of particular set of faith. Equally it is true in the liberal democratic setup religious opinions must not be enforced by law it should be practiced by free will of a person. In a liberal constitution it is the duty of the state to provide them liberties of practicing their religious freedom. But suppose one feels discriminatory and does not want to profess his religious freedom. That person necessary must have freedom to move to secular court for adjudicating its matter in secular court. It is the reluctance in the faith that is shown by the person and the person who has shown such reluctance will be responsible for diverting itself towards the secular faith. This reminds me the recent case of Viswa Lochan Madan v. Union of India which pertains to the legal validity of fatwa. It was first time legal validity of the fatwa and the parallel judicial system set up by Dar-ul-Qazi  known in common parlance as the ‘Shariat Courts’ that has been operating in many parts of the country was challenged in the Supreme Court. The court wherein rightly said in its words ‘this court do not mean that existence of Dar-ul-Qaza or for that matter, practice of issuing fatwas are themselves illegal. It is an informal justice delivery system with an objective of bringing about amicable settlement between the parties. It is within the discretion of the persons concerned either to accept, ignore or reject it”. If two people have a dispute they are free to either to approach the religious courts upon their free will and not at the instance of the third party. The concerned parties can either abide by the decision of it or reject it completely in accordance with its own freedom of religious expression and consciousness as guaranteed by the constitutional scheme. It is to be emphasized here that it is only the disputes of civil nature where we adhere to freedom of religion while in criminal side pure secular law is prevailing in the current state of political affairs. Muslims could have no problem thus in disputes of civil nature to recognize the uniform civil code as they are free to practice their religious freedoms, unless the person who shows reluctance in practicing the religious matters and shows diversions from its faith. The remedy for those remedy will be the secular court which will apply the principles laid down in the uniform civil code as faith cannot be enforced by secular courts it is to practice by free will.

Going back to constitutional assembly debates both the Munshi and the Ambedkar were of the opinion to incorporate the uniformity of laws. Munshi proposal stated that “ No civil or criminal court in adjudication of any matter or executing any order recognize any custom or usage imposing any civil disability on any person on the ground of his caste status , religious, race, or language.”Ambedkar was of the opinion that it is the right of all to claim full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by other subjects regardless of any usage or custom based on religion and be subject to like punishment, pains and penalties and to none other.It was the view of the many members among then include Amrita Kaur, Hansa Mehta, and M R Masani which empathetically suggested that one of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watershed compartments in various aspects of life,and it was their demand that the provision regarded uniform civil code be incorporated in the fundamental rights.

The uniform civil code still remains the distinct dream so far in the constitution. It has been given many facets in accordance to their own understanding. As such it should be balanced with freedom of religion and freedom of individual. There were tangible steps to codify the Hindu Law. However the Muslim law still remains the sensitive matter. We are failing here to understand why to interfere into the personal laws of the community and leaving them free to profess their religion and create a parallel secular court that people are free to move for adjudicating there matter. This protects the freedom of those who want to peruse there matters in secular court. By criticizing and making reforms in religious matters unnecessary amount to dictating the religious tenants of a community and thus infringing upon their fundamental right? State believes in uniformity but it should not be uniformity that dictates the true religious character of a community. Secular uniformity ought to have been understood and adopted as the constitutional goal in essence. The state need not to touch the religious aspect that is for the jurists of particular religion to do and they are better person meant for that and the followers of that are free to follow. The state duty is only to protect that freedom but nevertheless state can interfere where the person abandons his faith and moves to secular court. There the state is bound to adopt the principle of uniform civil code applicable to all individual thus protecting his liberty which is the essence of the liberal democratic constitution adopted by India.

 

The uniform civil code still remains the distinct dream so far in the constitution. It has been given many facets in accordance to their own understanding. As such it should be balanced with freedom of religion and freedom of individual. There were tangible steps to codify the Hindu Law. However the Muslim law still remains the sensitive matter. We are failing here to understand why to interfere into the personal laws of the community and leaving them free to profess their religion and create a parallel secular court that people are free to move for adjudicating there matter. This protects the freedom of those who want to peruse there matters in secular court.

 

In a democratic country like India it should not be associated with the majoritarian democracy where the rule by the majority prevails. Rather the notion of democracy in India should be understood in terms of the two terms liberal democratic setup and liberal constitutionalism. In a diverse democratic country like India to what I can give up the name of diverse liberal democracy. What I mean by diverse liberal democratic constitution here is that there are large numbers of religious and cultural groups present and constitution seeks to accommodate them all at equal footing. The democracy in India has to adopt the liberal democratic policy to accommodate all the groups within the constitution. When we talk of diversity of religion in India it must be noted that they do not only say religion in theory most of them practice it in essence. Now the question is how the unity in this sense can be achieved?

The answer in my opinion is twofold. The state should not to be concerned with religion of anyone one but stay concerned with its own policy based on public welfare and interest. Whatever is the policy of state for the welfare of the people that should be executed? But this policy must be relied upon the sound analytical reasoning and should not be based on the abstract reasoning of belief and notion which involves no public interest. The policy of liberal constitutionalism must be followed for protecting rights of people and also while imposing restrictions with strict adherence to principle of public welfare. In both the notions of liberal democratic setup and liberal constitutionalism the constitutional guaranteed rights are protected by adoption of these two principle ideas and in essence also balance the individual freedom and religious freedom.

In the past and present we have witnessed that women have many a time moved to secular as they have felt discriminatory thus creating necessity of uniform civil code. They have showed up such reluctance towards their personal law which they were free to profess and have approached the secular court for implementing uniform civil code. In the absence of the uniform civil code judiciary has taken the steps providing the justice to the person who invoke the doors of secular character. The Supreme Court in Mohammad Ahmad Khan v. Shah Bano Begium got an opportunity to lay down the importance of the uniform civil code. The operative part of the judgment was followed by deep dissatisfaction over the legislature’s failure to establish the uniform civil code for all its citizens in accordance with the Article 44 of the Indian Constitution. The conservative Muslim highly opposed the judgment while as liberals looked it as way forward. It is here emphasized to bring into our notice that a Muslim feminist, famously protested in front of the parliament stating that Muslim women are not treated like citizens of India and different bias laws are implemented against them. Similarly in Sarla Mudgal v. Union of India, court same issues were raised and same conflicts were raised in so many fourth cases.

When an individual moves to the secular court that depict his resistance or reluctance towards his or her faith and the need of secular principles arrive there that will adjudicate the matter and for his reluctance in faith and the state applies the fundamental freedom of individual not to recognize his religion that is also guaranteed to him under constitution. The particular individual will be accountable for trespassing his religious principles in accordance with the faith that such religion recognizes. State can only provide them freedom to profess there religious ideas in accordance their own consciousness. But once they knock the doors of secular principles the state has no option but to respect his liberty and implement the secular principles. This somehow creates the balancing interests of secular principles and religious freedom available to an individual. In this sense if UCC is applied then it might preserve the constitutional goal as well as protect and serve the balancing interests between the fundamental freedom of individuals and religious freedoms.

 

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