This article has been authored by Avinash Singh Vishen, Founder & Managing Partner at Vishen Law Chambers.
The “SEPARATE BUT EQUAL” doctrine was promulgated by the Supreme Court of the United States of America in the 19th Century to justify racial segregation as long as equal treatment is given to black and whites with equal facilities. It permitted segregation in all aspects of social life including that of schools on the basis of race.
In a misguided sense that they were actually promoting Social Equality, the Supreme Court of America actually promoted racism until the case of Brown v. Board of Education reached their docket. In this case, the court held that separate but equal was unconstitutional because even though prima facie equal facilities are being provided to the two classes of citizens, it is leading to a grave social inequality and injustice.
When India won the freedom struggle and became independent in 1947, the idea of a secular state was necessary to ensure social justice and harmony prevails. To further this idea, the concept of Uniform Civil Code was laid down in the Directive Principles of State Policy, to outline the intent of the Constituent Assembly that a truly secular state can be achieved sometime in the future when there is a uniformity of laws in both the criminal and civil aspects.
The first historic wrong was committed when the government started codifying laws relating to marriage and inheritance of Hindus in the year 1954 and thus the foundation of a pseudo-secular state was laid. Since then, there have been ample number of cries for a uniform civil code. The Government of India even the word secular in the preamble to the Constitution of India in the year 1975.
It has been argued that in India, the definition of secular is different from the rest of the world. While the rest of the world agrees that being secular means subjecting all citizens to uniform civil and criminal laws, India believes that secular means a uniform criminal code with the presence of Personals Laws to guide the civil scope of life.
Why do we need a uniform civil code ?
Personal Laws can be dated back to times wherein the concept of gender justice and social justice were non-existent. The personal laws fail to provide safeguards to rights of women and also further the cause of a patriarchal society, which is void of social justice. The different treatment afforded to similarly placed women is in a direct contradiction of the Constitutional Values of Right to Equality and Right to Life and Personal Liberty.
The selective codification of personal laws has also created a scope of a lot of confusion and has opened floodgates of litigation in India. It also leads to social injustice between two similarly placed people of different faiths.
The supporters of personal laws fear that the freedom of religion would be taken away from them if India were to have a Uniform Civil Code. However, in actuality a Uniform Civil Code will merely provide for uniformity in laws relating to marriage and inheritance. Freedom of Religion is the freedom of one self to have a relationship with his god and that will always be preserved by the Constitution of India. The problem lies when religion comes to odds against the social structure and evolution.
A uniform civil code would be an appropriate end to a widespread of social injustice that the personal laws have created thus far.
HAS THE JUDICIARY MADE EFFORTS TOWARDS A UNIFORM CIVIL CODE?
Initially, the Judiciary accepted the personal laws as the law of the land and even went to the extent of placing them over and above Fundamental rights. In effect, the Right to Religious Freedom (Article 25-28) was placed over and above the Right to Equality (Article 14) and Right to Life and Personal Liberty (Article 21).
In the year 1985, the Indian Judiciary for the first time tried to ascertain the supremacy of Right to Equality over the Religious Freedoms in the case of Shah Bano, but the effort of the Judiciary was shot down by an opportune government which chose to in effect nullify the verdict. Since then, the Indian Judiciary has also incorporated the doctrine of “SEPARATE BUT EQUAL” but the scope of the doctrine has been applied to personal laws.
We almost thought that the Indian Judiciary had its ‘Brown v. Board of Education moment’ when the case of Shayara Bano v. Union of India & Ors. was decided, however, even though the Judiciary dwelled into the area of personal laws, the Indian Judiciary missed the opportunity of laying down the test of Liberty and Equality to Personal Laws.
The Constitution of India through article 14 allows similar treatment of similarly placed people and prohibits differential treatment for similarly placed people. Any differential treatment for similarly placed people would be unconstitutional and a violation of Article 14. However, the outlook adopted by the Indian Judiciary when it comes to Personal Laws is that of ‘separate but equal’ and is against the very fabric of Equality.
The “Seperate but Equal” Doctrine when applied in the United States promoted Racial Segregation and brought about Social Inequality. The same Doctrine when being applied in the scope of Personal Laws in India is promoting Patriarchy and leading to Social & Gender Inequality. The doctrine is prima facie an evil, however, those who support personal laws would have you believe it is a necessary evil.