In my last column (Uttarakhand Uniform Civil Code: Striving for Equality and Justice, The Daily Guardian, 28th Feb), I delved into the history, the pressing exigency, and the contemporary advancements surrounding the concept of the Uniform Civil Code (UCC).
Despite its noble intent, critics have strived to besmirch its essence and questioned its legality by raising two pivotal concerns namely the matters of privacy and the right to freedom of religion. In the second and final column of this series, I shall dismantle the edifice of doubt erected by these two objections, thereby fortifying the foundation of its legitimacy.
Right to privacy
In the pantheon of human rights, none is more fundamental than the right to privacy, inherent in every individual’s existence. Though not explicitly enshrined by the framers of our Constitution, the judiciary, from the very beginning, has grappled with its interpretation. Internationally, privacy enjoys robust legal protection, affirmed by Article 12 of the Universal Declaration of Human Rights (1948) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) (1966). These instruments safeguard against arbitrary interference in one’s privacy, family, home, correspondence, honour, and reputation.
The journey of privacy jurisprudence in India is marked by milestones. In the landmark cases of M.P. Sharma vs Satish Chandra (AIR 1954 SC 300) and Kharak Singh vs State of UP (AIR 1963 SC 1295), the Supreme Court initially ruled in favour of the police, denying privacy as a guaranteed right under the Constitution. However, 1975 proved a turning point with Gobind vs State of MP (1975 SCC(2) 148), wherein the “compelling state interest test” from the American jurisprudence was introduced, acknowledging privacy as a fundamental right while recognizing exceptions for state interests. The apex court underscored that the right to privacy of an individual would have to give way to larger state interest, the nature of which must be convincing. Subsequent cases like PUCL vs Union of India (AIR 1997 SC 568) further fortified the right to privacy, particularly in contexts like telephone tapping.
Ultimately, on August 24, 2017, in the case of Justice K.S Puttaswamy (Retd.) vs. Union of India (2018 (1) SCC 809), the 9-judges bench of the Supreme Court, in a historic verdict, decreed privacy as an intrinsic part of the right to life and personal liberty under Part III of the Constitution. The Bench further underscored that like other fundamental rights, the right to privacy is not absolute, but is subject to reasonable restrictions.
The clamour for privacy after the provision for mandatory registration of live-in relationships must contend with the realities of societal dynamics. Instances abound where individuals enter into relationships under false pretences, leading to grave consequences such as coercion, violence, and even murder. In such scenarios, it becomes imperative for the state to intervene and safeguard the vulnerable. The tragic tales of Shraddha Walkar and Nikki Yadav, victims of deceit within relationships, serve as poignant reminders of the perils of unchecked deception. Further, instances of blackmail and extortion under the guise of false accusations of rape underline the necessity for legal recognition of modern relationship dynamics, such as live-in partnerships.
Critics may decry such interventions as breaches of privacy, but it must be understood that these measures are aimed at protecting individuals from harm. In a vibrant democracy, the state’s duty to protect the weak and vulnerable is sacrosanct, ensuring that the promise of liberty is not mere rhetoric but a lived reality for all.
Right to freedom of religion
Article 25 to Article 28 of the constitution of India envisages the right to freedom of religion. Article 25 guarantees every individual the inherent right to freely practice, profess and propagate their chosen faith subject to public order, morality and health and to the other provisions of Part III of the Constitution.
Let us not be beguiled by the false allure of absolutism. If any religious practice tramples upon the sanctity of other fundamental rights or sows the seeds of discord in the societal harmony, it is the solemn duty of the state to intercede with measured restraint.
In the last column, I elucidated the disconcerting reality wherein various provisions of personal laws encroach upon the sacred precincts of fundamental rights, leaving the most vulnerable among us bereft of justice. In the name of religious liberty, we cannot countenance such flagrant violations against the downtrodden.
Furthermore, if the rights conferred by Article 25 clash with the other rights enshrined in Part III of the Indian Constitution, it is the later which will be accorded precedence.
Ironically, there exists a cadre of dissenters who, under the guise of diversity and religious variance, decry the Uniform Civil Code, yet raise their voices in opposition to the Citizenship Amendment Act, in the name of equality among religions, albeit it is not encompassing Indian Muslims.
How can a society, steeped in the ethos of democracy and enlightenment, tolerate the antiquated spectres of polygamy, triple talaaq, nikah halala, iddat, child marriage, inequality between adopted and biological child, right to have only the half property than their male counterparts, only the amount of mahr as maintenance, difference of status between mother and father in the case of intestate succession, and other such vestiges of bygone eras?
Any voice that dares to extol such archaic practices does so not out of sagacity but from the murky depths of self-interest. Without a shadow of hesitation, these pernicious relics must give way to the radiant dawn of a Uniform Civil Code, where justice knows no identity or religion, but only the steadfast compass of equity and reason.
Conclusion
The UCC, far from being a mere legislative decree, embodies the essence of equality, justice, and unity – the very pillars upon which the edifice of a modern, progressive society rests. Henceforth, let us not shy away from applauding the audacious stride undertaken by the Uttarakhand government, a beacon of progress in the sphere of governance. Such valorous initiatives ought to be embraced by all, and indeed, emulated by other states.
It is imperative to recognize the UCC’s role in addressing systemic injustices and safeguarding the rights of marginalized communities. By dismantling discriminatory practices embedded within personal laws, the UCC seeks to rectify historical injustices and promote social cohesion.
It is incumbent upon the central government to heed the clarion call echoing from the Supreme Court on multiple occasions. Let them not tarry, but instead, endeavour earnestly in this noble pursuit.
It is in the collective efforts of governments, both state and central, that the tapestry of societal transformation finds its warp and weft. Let us, therefore, unite in purpose, casting aside the shackles of inertia, and stride forth into a future illuminated by the guiding principles of equity and justice.
Kumar Piyush Pushkar is an Advocate, Supreme Court of India.