A modern society is incomprehensible without the rule of law. The important ingredients of rule-of-law-based societies are, among other things, that its constitution should be the supreme law of land. All other laws must spring from it, and must be subservient to it.
However, there is great difference between having a constitution in a society and the supremacy of constitution in a society – the latter is constitutionalism.
India boasts of a Constitution, but its record of constitutionalism is abysmal. The latest row over triple talaq and the ensuing debate over the Uniform Civil Code (UCC) is testimony to this poor record of constitutionalism.
The recent developments around triple talaq and the government’s stand on it has led to characterisations of a “civil war” and the “dilution” of Article 25 under Part III of Indian Constitution – which allows the freedom of religion – as a conspiracy to impose a Hindu Rashtra on its people.
The issue has been clubbed together with the subject of common civil code as under Article 44 in Part IV of the Constitution.
Let us first understand two issues: Firstly, what is freedom of religion and is it absolute? And secondly, what is the relationship between Part III (Fundamental Rights) and Part IV (Directive Principles), and are they vertically placed in the constitution or horizontally?
Right to Religion Is Inferior to Other Fundamental Rights
First things first: Article 25 guarantees freedom of conscience and freedom of religion. It also allows people to profess, practice and propagate one’s religion. However, it is not absolute. It is subject to:
a) public order
d) other fundamental rights
It also says that Article 25 shall not prevent the State from making any law to regulate or restrict secular activity associated with religious practice.
Hence, right to religion is not absolute; it is subservient not only to specific grounds of morality, public order and health, but it is also inferior to other fundamental rights.
For example, if Article 14 – right to equality – is in conflict with freedom of religion, it is the former that will prevail. If the state wishes to make a law to regulate, it must do so only with regard to secular activity.
What constitutes ‘secular activity’? A secular activity is something that does not form the basic tenets of religious rituals.
For example, in Sikkhism the five K’s are basic tenets. Similarly in Islam, the five do’s are basic tenets, and the rest can all be declared ‘secular activities’ by the courts.
Since Article 25 is subservient to Article 14, if the Apex Court finds that some religious practices are hindering the enjoyment of Fundamental Rights, then it is duty-bound to decide in favour of Fundamental Rights.
Now, is it a conspiracy of Hindutva forces to ram a Uniform Civil Code (UCC) down the throats of minorities, especially Muslims, in India?
Could Ambedkar Be Accused of Wanting to Impose a Hindu Rashtra?
In order to answer this question, we need to go through the constituent assembly debates on the UCC. One of the amendments – roundly rejected by the constituent assembly in the leadership of Dr Bhimrao Ambedkar – was this:
“Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law”, as moved by Mohd Ismail Sahib.
Interestingly, Ismael cited the example of Yugoslavia to give weight to the argument. But it is worth noting that Yugoslavia was eventually dismembered for the dispute between Muslims and Christians.
Another Muslim representative, Mr Nizamuddin Ahmad, however, said:
I submit that the interference with these matters should be gradual and must progress with the advance of time. I have no doubt that a stage would come when the civil law would be uniform.
However, B Pocker Sahib Bahadur (representing Madras) also opposed the move to have a provision in the constitution regarding the civil code, pertaining to marriage, succession etc – a sentiment which was also echoed by Imam Hussian (representing Bihar) and found resonance in the submission of Mahboob Ali Baig Sahib Bahadur.
So we see, except Nizamuddin Ahmad, all other Muslim representatives opposed the UCC tooth and nail.
The move was rejected by none other than Dr BR Ambedkar who spoke after KM Munshi on the same topic. Mr Munshi narrated an interesting fact regarding Khoja Muslims.
Khoja and Cuthchi Memons were governed by certain Hindu customs and did not wish to be regulated by Sharia law. Yet the enactment Application (Shariat) Act, 1937 brought them under the Shria law unwillingly. Honourable Dr Ambedkar said:
“My friend, Mr Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship.
“We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country.
“Then there are the Negotiable Instruments Acts, and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country.
“The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change.
“Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that 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. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.”
Fundamental Rights VS Directive Principle of State Policy
Therefore, what we are witnessing today is déjà vu, a repetition of arguments, which are being raised again to prevent the enforcement of UCC. These were already raised before the constituent assembly, and they were categorically rejected by Dr Ambedkar himself.
Now, it was not a conspiracy of Dr Ambedkar to impose a Hindu Rashtra on the people of India as it is being projected. It was not the case then, and it is not the case now.
Now, the second question: What is the relationship between part III (Fundamental Rights [FR]) and Part IV (Directive Principle of State Policy [DPSP]) and which is superior to the other in constitutional placing?
At the outset, the basic difference between Part III and Part IV is enforceability; the former is enforceable, while the latter is not.
In a plethora of cases, it has been decided by the Supreme Court that FR and DPSP are supplementary and complementary to each other, neither overrule or override the other (Mohini Jain v State of Karnatka, 1992 I SSC 28). In the event of conflict between the two, courts need to construct judgements harmoniously.
The Constitution can only be effective when its subjects are modern and progressive in their outlook and its societies are organic in nature.
Such an outlook is possible only when laws are contemporary, equal, and rational in their content and form.
(The writer is an author of the book Indian Capital Market: Legal Regime and currently a PhD fellow at Albrecht Mendelssohn Bartholdy Graduate School of Law, University of Hamburg. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same. )