AFTERTHOUGHT

Rights and Wrongs

Rights and Wrongs
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Constitutional law cannot have exceptions built into it

THE INDIAN CONSTITUTION, as originally framed, was a document filled with compromises. The nascent republic could ill-afford to take a clear position on many matters, ranging from a unified tax law to special provisions for different provinces.

One compromise pertained to the adoption of a Uniform Civil Code (UCC) that would give India a common civil law on matters such as inheritance, marriage and divorce. Given the more pressing political problems of the day, it was included in the chapter on Directive Principles of State Policy, not Fundamental Rights. Effectively, this allowed religious groups their own laws on those three issues.

After decades of heated arguments, it appears there is no room for a political compromise on part of the Muslim community, representatives of which have long insisted that their personal law is above the constitutional rights available to other citizens. That may be changing, and not just due to a government that favours a UCC. Even the judiciary seems well disposed towards extending common rights to all citizens.

The latest example in this respect comes from the Lucknow bench of the Allahabad High Court. The court, while ruling in a case where a man had proclaimed a triple talaq and remarried, had some harsh words. ‘Personal laws of any community cannot claim supremacy over the rights granted to the individuals by the Constitution,’ it said in an order.

Ultimately, the matter will at some point be heard in the apex court, where the issue has been raised at different times. The Union Government has also filed an affidavit in which it has supported the adoption of a UCC. The issue is not one of trampling over the rights of minorities or even one of whittling down religious freedom. This is a red herring. The issue is a basic one: should a country where the supreme organic law prescribes one rule for everyone have exceptions built into it? The protection of minority rights cannot go so far as to ‘dilute’ the guarantees of the Constitution. It is another matter that robust channels of communication must remain open with anyone and everyone affected by these changes.

At yet another level, if a UCC is implemented, it will mark a victory for individual rights over a community based understanding of rights. This was the original sin, so to speak, of the great Indian compromise effected in 1950. It is time to undo that.