Towards The Care-Less: The Case For Legislative Minimalism And The UCC

*Sarthak Sahoo

Introduction

Article 44 of the Constitution of India obligates the State to ‘endeavour to secure’ a Uniform Civil Code (UCC). The primary argument in favour of a UCC is its ability to render statutory equality to classes of persons (e.g. women) which are subject to the same types of personal law – or what the author shall call civil law in this post – (e.g. the law of inheritance) which, the proponents consider, exhibit neglect and discriminate against them. However, persistent objectors point to Articles 24 and 25 of the Constitution which guarantee not only the freedom to practice religious faith, but also extend this to idiosyncratic civil settings found in particular sects and traditions. Inevitably, these traditions discriminate (both in the moral and non-moral sense) between classes. 

In light of this, some raise contentions about the potential constitutionality of this conflict, and whether a draft UCC would be struck down. They posit that in the trade-off between civil uniformity and pluralism, the court on balance will prefer to retain pluralism given concerns of social realism. 

In writing this essay, the author preliminarily assumes that a UCC would, in principle, be perfectly permissible and constitutional given that Article 44 spells its existence out in specific normative terms. Any constitutional challenge to it, if it be made, will have to be made not on its uniformization of civil law, but rather on the substantive reach, extent, and application of its drafted provisions. 

In order to avoid such unconstitutionality, the author argues that the UCC should follow what Druzin calls ‘legislative minimalism’, a position that advocates for the legislator to be economical with the degree of intervention he undertakes in the naturally formed customary order. By exercising legislative minimalism, the constitutional objective embodied in Article 44 of rendering equality unto all by means of such a UCC, shall be placed alongside the imperative to maintain pluralism in such civil practices, and not opposed to it. 

The Theory of Legislative Minimalism

At first, it may be relevant to explore what legislative minimalism entails. Left to its own devices, society tends to develop a set of practices by means of trial & error, congregation, consultations, and conflict. These practices exist sans law and are followed by a sense of propriety and a person’s superego. This is what we may call the ‘customary order’. 

The use of the term ‘customary’ is particularly apt for our purposes (customs of civil law), as it indicates the idea that this is a bottom-up and organic conclusion achieved by society. Naturally, the state may find fault in such a customary order and choose to intervene by way of legislation and enforcement. Legislatures, therefore, must decide to what degree they should intervene in this customary order. Druzin thinks that the legislature operates along a continuum, with legislative minimalism on one end and maximalism on the other. He broadly delineates the spectrum in this way:

Source: Druzin (2014)

To briefly explain these in turn, non-interference refers to when the legislature leaves the customary social order as it is with no consideration to its formulation or enforcement (e.g. table manners). Formalising often denotes no change with the customary order, but rather the legislature simply clarifying the order’s rules for the benefit of all and a nominal enforcement and penal mechanism to enforce compliance (e.g. the UNCITRAL model law). Fine-tuning takes a qualitative shift in remedying any elements of the formalised customary order that are ‘inefficient’ or against public policy (e.g. the panchayat system under the Constitution). Dismantling goes further still in getting rid of the existing customary order in toto (e.g. Article 17 and the practice of untouchability). Concocting, often a corollary of dismantling, attempts to create a new system of rules afresh. This is especially found in novel technologies or new areas of discovery (e.g. the law of AI). 

It is crucial to note that these are not categories with mutually exclusive operations, but indeed a spectrum with varying degrees of use and intensity based on subject-matter and customary order concerned. There is a large amount of hybridity and admixture that often accompanies legislations – especially those dealing with complex subject matters. An advantage of such a conceptualisation is that it allows policy-makers to assess the nature of the customary order and the degree of intervention required with a common language. Often, disagreements about policy arise due to varying characterisations of the underlying customary order and the corresponding necessity to remove it. Most policy-makers would want to adopt legislative minimalism – to undertake the least possible legislation possible to achieve the stated objective. The author shall now attempt to extend this analysis to a UCC and propose a model under which the constitutional goal of securing a UCC, the egalitarian exhortation to ensure uniform civil law, and the project of preserving pluralism, all can be satisfied. 

A Minimal Civil Code

Much of civil law in India has indeed been the province of custom. For the most part, colonial administrations chose to not interfere with the customary social order, stepping in to fine-tune it periodically. See for e.g. the Bengal Sati Regulation of 1829 or the Indian Slavery Act of 1843. The onset of Indian independence found the state formalising and fine-tuning particular personal laws and not others. See for example, the four laws of the erstwhile Hindu Code Bill or cases such as Mohd Ahmed Khan v Shah Bano Begum (1985). This is the stated position till today. From this position, the transition to a UCC would be a shift to ‘dismantling’ existing legal regimes of civil law and replacing them with new ones (presumably by synthesising existing practices and fine-tuning them in turn). This is precisely the compromise that might render it unconstitutional (and if not that, at least deeply undesirable). 

Instead, the author argues that the UCC should achieve uniformity by sustaining the state’s fine-tuning orientation adopted post-independence. The uniformity so introduced can avoid the creation of an orthodox set of practices by setting forth the minimum standard of expectations that are to be imposed on persons of all religions and sects. These would, in turn, not impede the additional obligations so imposed by the customary order in question.  Senior Advocate Salve shares this model of the UCC, as it would ensure that persons are not forced to follow their religion but that everyone is free to follow it and its conditions without having to make a choice between state law and customary law. 

Such a position can indeed continue its fine-tuning efforts towards reform by baking them into the minimum standards the UCC propounds, thereby allowing persons the liberty to exercise that statutory right if they so choose. Indeed, if the person so concerned does not wish to do so, they can simply continue following their customary law with no regard to state law. Conversely, any fears of state complicity in the customary law that has persisted so far would also eviscerate. For analogy, Bartum distinguishes between religious marriage and civil marriage in the United States vis-à-vis same-sex marriages. Whereas the state must institute strictly dispassionate and neutral provisions in its legislation as it concerns government employees and its registers, this should not be extended to legislating away religious marriage, no matter how defined by the religious institution in question.

Therefore, Parliament can institute uniform and equal treatment by law, but not necessarily reshape the way religious clergy (or even the population) may define the social institution. The risk of private discrimination, thankfully, is minimised given India’s non-institutional approaches to religion, thereby ensuring that no undue burden is posed on those who otherwise don’t have access to religious marriage.

Another advantage of such legislative minimalism lies in allowing for the margins of law to be left ungoverned. This is precisely the role of a liberal state which is not prejudiced to a particular set of choices as being inherently better than the other. For example, in a different context, Komesaroff and Charles suggest that adding provisions for doctors which immunise them from legal action for administering drugs that were reasonably necessary to ‘alleviate pain and suffering’, would allow for a dialogic view of euthanasia, not forcing either doctor or patient to a particular form of end-of-life healthcare, thereby allowing for both competing visions to persist. This is the precise benefit of legislative minimalism – the preservation of forms of choice, without prejudice to the emergence and recognition of novel ones. Applied to the religious realm, it does not favour one set of religious practices over another simply by structural necessity or legal implication. 

Conclusion

There is no denying that even at its most parsimonious, a UCC will ‘reform’ the diverse practices in the civil province. This will homogenise the sacred and the mundane a fair bit. That is an assumed concession. But at least such a balance, if it is practised with minimalism, may achieve a legal, political, and social fulcrum. 

*Sarthak Sahoo is a law student pursuing B.A. LL.B, at Rajiv Gandhi National University of Law, Punjab.

The views expressed above are the authors' alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.