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Challenges in implementation of Uniform Civil Code


India is the second most populous country and along with it, it is the home for all the major religions of the world. It is for this reason that it is often described as 'Land of Religious Toleration'. India, being a secular country, allows the existence of various religions and does not promote any particular religion. Now this is the point where the problem arises and that is because of different religions being practiced since ancient time these different religions have their different personal laws by which people of their community are guided. These personal laws issue guidelines as to how the people of a particular community or religion have to implement different practices, and these practices include- marriage, divorce etc. In other words, it talks about the basic conduct that needs to be followed by the people of that religion. Considering different personal laws have different code of conduct but all these personal laws at a point become discriminatory in nature, considering the example of the Muslim personal laws under that woman are not given as many rights as men are given, now this can be further explained with the help of the example and that is that under the Muslim Law, a husband's apostasy from Islam results in automatic dissolution of a Muslim marriage though a wife's apostasy does not. All these personal laws are discriminatory in nature in some or the other way and The Constitution of India under Article 15 and 16 clearly talks about that no one should be discriminated on the grounds of race, caste, sex, place of birth or religion.


After long done analysis there was a need for the protectors of the law should take charge under The Constitution of India and in accordance to these personal laws were discussed in the constituent assembly twice, first when the fundamental rights in Part III relating to personal laws, was incorporated in the Constitution and secondly, at the time when Article 44 contained in Part IV of the Constitution to secure Uniform Civil Code was debated. The Muslim members of the constituent assembly didn’t support the move at all and went against this move completely but on the other hand there were members who supported the move and accepted the proposal put forth. Dr. Ambedkar supported the move and held that the state could change personal laws as a measure of social welfare and reform. He didn’t completely let go of the people belonging to a particular religion or community, he added to his statement that to ensure the religious, linguistic, cultural and educational identity the Constitution of India contains special provisions for the protection of Indian minorities. It was this point where it was decided that there is a need to cut down this broad aspect of personal laws and bring in all the personal laws under one umbrella, which would further mean that all these personal laws should be unified into one set of secular laws dealing with all the aspects under personal laws and the laws that will be maid will be applicable to each and every citizen of the country irrespective of their religion. All these things were thought about from different perspective and it was concluded that the was a need of Uniform Civil Code because this code will take care of the discriminatory practices that are being followed since the time memorial, also as there are so many personal laws which actually create a lot of confusion so that confusion will also be cut down and moreover it will eliminate the overlapping of the laws. So these were the reasons because of which it was thought that there is a need for unification. Finally in the year 1949 it was decided to add the implementation of a uniform civil code under Article 44 of the Directive Principles of the Constitution specifying “The state shall endeavor to secure for citizens a uniform civil code throughout the territory of India”. This law applied to all citizens of India except the people of Jammu and Kashmir. As there was such a drastic change which was brought about in the laws there were people with different opinions who raised their voice which lead to conflict many a times but once what’s implemented it becomes very difficult to change that particular code or the very idea of it. This code did not quash the entire policies of the personal laws but a bar was set that what was to be followed by all the citizens and none the less as this code was included under the directive principles it was not mandatory for all the states o follow the same or adopt the code. Still the conflicts and the fights continued but with the passage of time even the conflicts reduced between the secular and religious authorities over the issue of Uniform Civil Code. Until 1985 everything went fine but a drastic change was brought about by the Mohd. Ahmed Khan v. Shah Bano Begum case, in this case the question was pertaining to the responsibility of a Muslim husband to maintain his divorced wife beyond the period of Iddat, if the wife was not able to maintain herself. The divorce that was given to Shah Bano by her husband was through the way of triple talaq. The Supreme Court held in this case that Section 125, Criminal Procedure Code, 1973 (CrPC) which imposes an obligation on all husbands, is secular and applies to all religions. It applies to all Indians in general and overrides the personal law in case of conflict between the two. This case became a national wide political issue and everyone started giving their opinions until the judgment was given by the Supreme Court wherein that judgment leads to the enactment of Muslim Women (Protection of Right on Divorce) Act, 1986. Also Justice Y.V.Chandrachud said that Uniform Civil Code will help in establishing a national integration and removing inequalities present in Indian laws.


Hence the parliament was directed to frame a Uniform Civil Code in the Indian Constitution. The act that was enacted in this case came to be challenged in the case of Danial Latifi v. Union of India and it was challenged by the Shah Bano’s lawyer on the grounds that it was violative of Article 14, 15 and 21 of the constitution. It was further alleged that it was discriminatory on the grounds of religion and sex, as the women belonging to other religion get the benefit of section 125 of CrPC which grants the other women maintenance till the time they get remarried but because of this act the Muslim women used to get the maintenance only during the Iddat period. The court considered all the points and held that the liability of the Muslim husband is not confined to Iddat period. Then came another case where in the question was raised on the Hindu law and this was in the case of Sarla Mudgal v. Union of India in this case the question that was put before the court was whether a Hindu male married under the Hindu law, after conversion to Islam without dissolving the first marriage under Hindu law can solemnize a second marriage. The court ended up saying that a marriage cannot be legal and the husband can be prosecuted under section 494 of IPC for Bigamy. Hence such a marriage can only be dissolved under the Hindu Marriage Act, 1955.


When Uniform Civil Code is summed up and is put under a broad definition it can be defined as the umbrella under which is to be considered as a single law and under this single law all the citizens will be placed i.e. They will be bounded by this single law and this single law will contain all the laws that were mentioned under their personal laws and that would include marriage, custody, adoption etc. This simple and clearly defined code was brought in India way back in time but as it is included under the directive principles therefore it is not compulsory for every state to adopt this code, though this code has been misunderstood by many people out there in different ways but the soul reason because of which this code was laid down is that the people should not be discriminated on the grounds of religion and sex and everyone should be given equal treatment. There were certain studies that were put up which said that this code is violative of Article 25 which states that all individuals are equally entitled to freedom of conscience and the right to freely practice, profess and propagate religion subject to public order and health, also the concept of secularism which is states under the preamble of the Indian Constitution and this concept talks about that India as a country does not follow any particular religion and everyone is free to follow any religion they want. All these points were put forth without getting a better understanding of the entire concept. After taking into account all the points that have been previously stated the researcher infers that this concept has not been introduced to squash the entire beliefs of religion or to remove the ancient following or teachings or different religions, but to remove the disparity between the people, to remove the discrimination that is happening around since so many years. When this concept is invoked, it would not mean that you won’t belong to any religion or you will not be able to profess or practice any religion but this concept would mean that whatever laws that are made under different religions which are termed are the personal laws, those laws will be quashed and all the people belonging to that particular state will come under the umbrella of Uniform Civil Code. A classic example of this concept can be seen in the state of Goa, in the state of Goa people belonging to different religions have a common law regarding marriage, divorce, adoption etc. Goa has a Common Civil Code which is largely based on the Portuguese Civil Code 1864 whereby there are certain provision that to be followed by all the people belonging to that particular state.


According to the going on circumstances there is an urge to adopt this Civil Code but in reality none of the states have realized the value of this code, whereas the Supreme Court has time and again tried to lay emphasis on this topic and has given certain statements and this is the most that the judiciary could do because all these matters are to be considered the sensitive ones and any kind of judgment or any kind of statement passed by the judiciary might get misunderstood or misinterpreted in some other way and this might cause riots and any kind of internal disturbances therefore judiciary on its part tries to help out the government as much as it can but at the end of the day the entire discretion of implementation of this code lies on the government. In the year 2016 Supreme Court gave a statement that if this is how everything is going to go on then a point will be reached where the people will come up with any kind of law and they will claim that this kind of law is made under their religion so they will be practicing it, in other words there will be no stability in functioning of the legislature, the judiciary and the executive. There after it can be inferred that there is a need to adopt this policy and this need arises majorly because this prevailing concept of personal laws promote communalism and it leads to discrimination at two levels and those levels would be between the people of different religions and between the people of different sex. There will be need to adopt this to bring all the people at the same level so that they are given equal opportunities and rights. All these are necessary because since time memorial women have been discriminated on different grounds and that would include;

  • Triple talaq

  • Polygamy

  • Adultery

  • Bigamy

These are the main key areas where women have been discriminated and many of these have been culled out by the judiciary while exercising their powers, there are many other considerable areas as well. Though bringing all these changes won’t be a simple process there will be many challenges but along with the pain of challenges there will be relief of the merits and those merits will be as follows;

  • This code has a double-sided role to play wherein it will protect the vulnerable section of the society and at the same time it will promote national unity and solidarity.

  • Application of this code will remove the confusion that has being created because of existence of different personal laws.

  • It will prevent overlapping of the laws.

  • This code will be helpful for the judiciary as it will lead to reduction in litigation emanating from multiple personal laws.

  • It will de-link law from religion which is a very desirable objective to achieve in a secular and a socialist pattern of society.

  • It will help in fulfilling the constitutional mandates under article 44 of directive principles of the state policy.

  • It will help in elevation of the entire community of women as a whole.

Now when talked about the merits, it becomes equally important to give a mentioning to the things because of which the benefit of these merits are being enjoyed and those things are the challenges that are faced while and after the implementation of this particular policy, and those challenges are as follows;

  • Political parties willingness- Political parties willingness is the one thing that matters the most because it is according to their will that this entire plan can be executed, this is because there might be instances where the parties might not be willing to bear the consequences of implementing this particular policy because as it is a sensitive matter and peoples sentiments are joined to their religion so any further move in this direction might just cause them a loss of a particular election. But if they will not think about their future and they will think about the entire community’s future as a whole then it will be beneficial for the entire nation as well as each and every individual.

  • Sensitive task – As mentioned earlier also peoples sentiments are jointed with their religion and beliefs so if suddenly anyone would just take away everything and will tell them to follow these rules and regulations then that goes without a doubt that the people will be opposing and eventually it will lead to riots so therefore in order to execute this kind of code of conduct there should be a true spirit to execute this plan, and for this it is important to make the other people understand this concept and to make them believe that whatever is being done it is for their betterment only and it is for bringing up the people or the community that has been left behind.

  • Encroachment of religious freedoms- There are different communities which follow different religion and there are certain communities which are a bit backward and are not yet recognized so in accordance to this policy they think that only the communities that are well known and consists of majority of population, only their practices and laws will be taken into consideration while framing of this policy but this is a myth all the personal laws will be given equal importance and then only this policy will be framed.

  • False perception- People haven’t really understood the main idea of the entire policy, they just go by the things which are been communicated to them and there might be instances that the things that are communicated are false or they do not have any such standing in law, so because of such perceptions that are being formed in the people’s minds it is leading to them opposing the policies that are beneficial for their own community. So this kind of misconduct and miscommunication leads to opposing of the policy.

  • Fundamental rights violation- It is believed that this policy is violative of Article 25 but it is not so, the people are not binded by the law to follow or not to follow a particular religion, under this policy people will be binded only by same set of laws and not their earlier followed personal laws. The people are completely free whichever religion they wish to. This is again a misconception that needs to be removed.

  • Diverse personal laws- Different religions have different personal laws so while framing of a policy that gives equal importance to all the personal laws, it becomes difficult to actually find a common ground and then make a particular law.

In all it can be inferred that if the personal laws are unified then it will be for the betterment of the entire society and this needs to be understood by each and every member of the society, moreover the first thing that should be done is removal of all the misconceptions that the people have regarding this code. If this is implemented by the entire nation then the nation together will prosper in the future.



REFERENCES

Books:

  1. Agnes, Flavia. “The Supreme Court, the Media, and the Uniform Civil Code Debate in India.” The Crisis of Secularism in India, 2006.

  2. Kumar, Ajai. Uniform Civil Code: Challenges and Constraints. 2012.

  3. Parashar, Archana. Women and Family Law Reform in India: Uniform Civil Code and Gender Equality. 1992.

Journals:

  1. Choudhary, Vaibhav. “A Proposal for Uniform Civil Code for Law of Succession in India.” SSRN Electronic Journal, 2010.

  2. Hazarika, Raya. “Should India Have a Uniform Civil Code?” SSRN Electronic Journal, 2010.

Case Laws:

  1. Mohd. Ahmed Khan v. Shah Bano Begum

  2. Danial Latifi v. Union of India

  3. Sarla Mudgal v. Union of India



Himakshi Ramchandani












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