The Case Against It, and the Middle Way

In one line

The Constitution protects the right of communities to their own way of life in five separate articles and two Schedules, and a code that overrode all of them would have to explain why those provisions are there.

In the wording a student can write in an exam: the case against a uniform civil code rests on three constitutional limbs and one empirical one. The constitutional limbs are the freedom of religion in articles 25 and 26, the cultural and educational rights of minorities in articles 29 and 30, and the express protections of customary law for tribal communities in article 371A and the Sixth Schedule. The empirical limb is that reform from within has worked: the Hindu law statutes of 1955 and 1956, the amendment of 2005, the Indian Divorce (Amendment) Act 2001, Danial Latifi, Vineeta Sharma and the Act of 2019 have each changed a system without abolishing it. To these is added the argument from method, in Pannalal Bansilal Pitti, that a uniform law though highly desirable may be counter-productive if enacted in one go, and the argument from justiciability, in Ahmedabad Women Action Group, that these are matters for the legislature.

The first limb: articles 25 and 26

Article 25(1) guarantees to all persons freedom of conscience and the right freely to profess, practise and PROPAGATE religion, subject to public order, morality, health and the other provisions of Part III.

Article 26 gives every religious denomination the right to establish and maintain institutions for religious and charitable purposes, to MANAGE ITS OWN AFFAIRS IN MATTERS OF RELIGION, to own and acquire property, and to administer such property in accordance with law.

The argument is not that a code is forbidden by these articles. Article 25(1) is subject to the other provisions of Part III and article 25(2)(b) preserves reform, so the drafters plainly contemplated legislation touching religious practice. The argument is narrower and better: that in a Constitution which protects the freedom to practise religion, the right of a denomination to manage its own affairs in matters of religion, and the right of minorities to conserve their culture and to run their own educational institutions, the DISPLACEMENT of a community's law of marriage and succession requires a justification proportionate to what is displaced, and that the justification cannot simply be uniformity for its own sake.

And the minority argument has a specific edge. A majority community's law can be reformed by the ordinary political process, because the majority controls the legislature. A minority's cannot. When the legislature reforms a minority's family law, the reform is done TO the community rather than BY it, and the Constitution's minority provisions exist precisely because the framers did not think that a safe assumption.