Sabarimala May Lead to Uniform Civil Code — But Will We Accept It?

Are Indians open and willing to take the leap, and accept and adopt the Uniform Civil Code?

The year 1950 marked a turning point in the lives of the citizens of this country as we were endowed with the fundamental rights of livelihood, justice, equality, freedom and liberty. This includes gender equality, freedom of speech and expression, right to profess, practice and propagate any religion as enumerated under Articles 14, 19 and 25, respectively.

The framers of our Constitution also envisioned a Uniform Civil Code and incorporated the same in the Directive Principles under Article 44, thus, bestowing the State with the responsibility of achieving national integration by removing contradictions based on ideologies.

The Supreme Court has essentially given light to the intention of our Constitution-makers through its numerous landmark judgments that have changed the social structure of our country.

Strengthening the Principles of Natural Justice

Take for instance in 1997, the apex court took cognisance of the sexual harassment of women at workplaces, and set forth the Vishakha guidelines. It has further dealt with sensitive cases such as Shah Bano, where a Muslim woman’s right to alimony, following a divorce, was recognised around 1985, and very recently delegitimised Triple Talaq, which have all been steps towards achieving a Uniform Civil Code. The year 2005 witnessed the apex court’s recognition of a Hindu daughter’s right to her father’s property.

In 2017, when the Supreme Court struck down Section 497 of the Indian Penal Code, (IPC) observing that it reduced a woman in an extra-marital relationship to a mere commodity, it corrected a colonial wrong. It is needless to state that such judgments have fortified the principles of natural justice being the only way to achieve the harmonious and ideal society. Currently the Supreme Court is fettered in another vexatious issue, of the right of Hindu women to enter the halls of worship of the Sabarimala temple in Kerala. This has a similar connotation with the Bombay High Court ruling in 2016 which observed that banning women from the sanctum sanctorum of the Haji Ali Shrine was discriminatory.

The Supreme Court has essentially given light to the intention of our Constitution-makers through its numerous landmark judgments that have changed the social structure of our country.

Question of Women’s Entry into Places of Worship

Both these judgments sing off the same hymn sheet, where they deal with the rights of women in their place of faith and worship. The Supreme Court in its Ayodhya ruling had held that the courts must not sit on judgment over matters of faith and belief. The Sabarimala case represented a conflict between the individual rights of women in the 10-50 age group versus rights of the temple authorities in enforcing the presiding deity’s strict celibate status.

Every time the apex court deals with such sensitive issues of discontinuance of age-old traditions, it risks opening Pandora’s Box, for there are numerous religions and practices and several faiths that may not pass the constitutional morality test.

Fortunately, this case has enabled the Supreme Court to take a larger issue into consideration, observing that “the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to Sabarimala case, but also arises in respect of entry of Muslim women in a dargah/mosque, as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari.” And further, “there is yet another seminal issue pending … regarding the powers of the constitutional courts to tread on question as to whether a particular practice is essential to religion or is an integral part of the religion, in respect of female genital mutilation in Dawoodi Bohra community.”

Is Sabarimala Row Paving the Way for Uniform Civil Code?

Every time the apex court deals with such sensitive issues of discontinuance of age-old traditions, it risks opening Pandora’s Box, for there are numerous religions and practices and several faiths that may not pass the constitutional morality test.

All said and done, the question is: are the citizens of this country open and willing to take the leap, and accept and adopt the Uniform Civil Code?

The issue here revolves around the contradictory nature of Article 25 and Article 44 of the Constitution of India. While the former translates into personal law, it obliterates the chances of the latter to coruscate. However, just like every other law, Freedom of Religion under Article 25, does not promise absolutism, and can, in no way, supersede the basic structure of the Constitution. The entire uproar over the entry of all women into the temple in Sabarimala is being led by people who are at the opposite end of the ambit of cultural and social ideologies. This is clearly paving the way for a Uniform Civil Code in terms of faith and religious practices for both mainstream genders of society, where each individual is being equally placed in terms of their choice of worship — free from social constraints — thereby also recognising the intentions of the framers of our Constitution.

Uniform Civil Code: Are We Ready to Take the Leap?

All said and done, the question is: are the citizens of this country open and willing to take the leap, and accept and adopt the Uniform Civil Code? Are they willing to patiently reconcile with the consequential changes and peacefully witness social metamorphosis? It can definitely be said that we are one step closer to adopting a Uniform Civil Code in terms of achieving gender equality, given the number of fiats achieved and overcome by society in relation to women.

At the same time, our country is far from achieving a wholesome Uniform Civil Code, since discrimination in our society is not limited to gender and religion alone, but also includes caste and class discrimination, and the Supreme Court would have to tread many a path(s) to achieve such a Utopian society.

(Kapil Sankhla is a Supreme Court advocate and tweets at @Indialaws. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)