The BJP government in Uttarakhand has introduced the Common Civil Code bill that is likely to be enacted as a law. Uttarakhand will become the first state in the post-Independence era to implement Common Civil Code. This would be a trailblazer for the rest of the states ruled by the BJP. It is also going to put pressure on the Opposition-ruled states as this law is primarily aimed at undoing the injustice inflicted upon a large number of women and children due to discrimination in matrimonial and inheritance rights in the absence of common civil code.

There are several misconceptions about this law that need to be removed as the debate on this issue is likely to intensify in the days to come.

Law in line with the provisions of the Constitution

Article 37 of Part 4 of the Constitution states that the provisions contained in this part shall not be enforceable by the court. Nevertheless, if the Union feels that laws can be made on these subjects for the governance of the country, then it can do so.

Therefore, on this basis, the government can make a Common Civil Code because it is a part of this list. ‘Common Civil Code’ is included in Article 44 of Part 4 of the Indian Constitution. Thus, it is part of the directive principles of policy. According to Article 44, “The State (ie India) shall endeavour to secure for the citizens a common civil code throughout the territory of India.” (Earlier it was Article 35, later it was known as Article 44)

Under Article 14, every citizen of India has the right to equality on the basis of religion, race, caste, sex, place of birth. It is the duty of our state to protect every citizen of the country on all these subjects.

According to Article 15, no citizen of the country can be discriminated against on the basis of religion, race, caste, sex, place of birth.

This law is aimed at bringing social justice that has also been mentioned in the Preamble. It says, “We, the people of India, resolve to constitute India a sovereign nation, and to grant to all its citizens the right to social justice, thought, expression, belief, religion and worship.”

The Seventh Schedule of the Constitution defines the rights between the states and the Union. Its Concurrent List includes subjects like ‘Marriage and Divorce, Infants and Minors, Adoption, Will, Intestacy and Succession, Undivided Family and Partition’. Therefore, laws can be made on these subjects by the state governments. And that is what the Uttarakhand government is doing.

Thus, on the basis of the Directive Principles of State Policy, Preamble and Fundamental Rights in the Constitution, citizens cannot be deprived of ‘Common Civil Code’.

Will this law affect the marital customs of different religions ?

The Common Civil Code will not have any impact on the customs and traditions of any religion or sect. In Uttarakhand, it puts no restriction on ‘nikaah’ among Muslims, ‘anand karaj’ among Sikhs, ‘phera in front of fire’ among Hindus and ‘holy matrimony’ among Christians. People can follow marital customs as per their beliefs.

Will this law affect the customs and traditions of the tribes ?

The Common Civil Code will not have any impact on the customs and traditions of any tribe in the country as provisions have been made for their protection in the country. The laws for religious and cultural protection of tribes are as follows:

The social traditions of the Naga tribes have been protected in Article 371(A). Under this, no Act of Parliament will be applicable on the religious and social practices of Nagas unless the Nagaland assembly approves it by resolution.

The social traditions of the Mizo tribes have been protected in Article 371(G). Under this, no Act of Parliament will be applicable on the religious and social practices of Mizo people unless the legislative assembly of Mizoram approves it by resolution.

There is a provision in Article 338 (A) to constitute the National Commission for Scheduled Tribes, which is also playing a big role in the protection, welfare and development of the tribes.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has also been passed by Parliament. Under this, too, the traditional knowledge and traditional-customary rights of the forest dependent tribes have been given legal protection.

Tribal areas are declared in the Fifth and Sixth Schedule of the Indian Constitution. There are 10 states in the Fifth Schedule – Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Odisha, Telangana, Andhra Pradesh, Gujarat, Jharkhand, Maharashtra and Rajasthan. The Sixth Schedule covers four states – Meghalaya, Assam, Mizoram and Tripura.

According to Rule 4 of Article 244(1) of the above-mentioned Fifth Schedule, the tribal advisory council can be established in these states on the instructions of the President of India. The duty of this council is to provide advice regarding the welfare and progress of the scheduled tribes of that state.

In the Sixth Schedule, autonomous district councils (ADCs) have been established in the above four states. To protect the rights of the tribes in these areas, the right of autonomous local administration has been given.

After independence, the Hindu Code Bill was brought. It has four acts: Hindu Marriage Act, 1955; Hindu Adoptions and Maintenance Act, 1956; Hindu Minority and Guardianship Act, 1956; Hindu Succession Act, 1956. These enactments continue to prevail as a law. Section 2 of these statutes has provisions for their application. However, sub-section (2) of section 2, excludes its application to the members of the scheduled tribe within the meaning of clause (25) of Article 366 of the Constitution unless the central government directs so. The tribal population in India would continue to be governed by its customs.

The Common Civil Code in Uttarakhand also follows these provisions and, hence, it would have no impact on the arrangements made in the Constitution for the protection of the customs and traditions of the tribal population.

Opinion of the Constituent Assembly of India

Most of the members of the sub-committee on Fundamental Rights in the Constituent Assembly had proposed the early implementation of the Common Civil Code. Committee members – MR Masani, Hansa Mehta and Rajkumari Amrit Kaur said, “We are of the view that a common civil code should be guaranteed to the Indian people within a period of 5 or 10 years in the same manner as the right to free and compulsory primary education has been guaranteed by clause 23 within 10 years.” (B Shiva Rao, The Framing of India’s Constitution, Volume II, p 177)

(The article was first published on February 12, 2024, in News18.com.https://www.news18.com/opinion/opinion-common-civil-code-is-a-giant-leap-towards-social-justice-8775115.html