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Challenges in implementing the Uniform Civil Code in India

- By Sanjana Sapra

Introduction

India is a diverse country with various people belonging to different religious backgrounds residing peacefully. And these religions are governed by their respective codified Personal Laws. For example, people following Hinduism follow The Hindu Marriage Act , 1955 for practices relating to marriage , adoption and what will be the conditions which are needed to be followed for a marriage to be considered as valid Hindu marriage. Similarly people who follow Islam are governed by the Muslim Personal Law (Shariat) Application Act which deals with marriage , succession , inheritance and other various aspects. A similar case can be seen for Christians and Parsis. These laws however have been derived from the ancient text and religious books. It is imperative here to understand that India follows secularism which is enshrined in our constitution and was also included in the preamble after the 42nd amendment in 1976. The word ‘secular’ means that the state will not follow any particular religion and neither will the people be discriminated against because of a particular religion. Article 25 gives the citizens to practice , profess and propagate the religion they want to follow. Goa is the only state in the country where Uniform Civil Code is in motion.

Limitations of Personal Laws

Because there are various personal laws , there are certain differences and discrepancies which exist in these personal Laws. This can be attributed to the fact that from time immemorial , India has had a Patriarchal Society which means that more rights are given to men as compared to women. Also, there have been instances where personal laws have denied the rights of women or did not give them rights in the first place. An example of this could be seen in the Hindu Laws. Hindu daughters were deprived of joint heirship in parental property as per the codes of Mitakshara which was a school of law which dealt with the rules governing succession. However , after the case of Lata Mittal , the Supreme Court said that now women will be given equal rights in the ancestral property as well. A similar situation can be seen in the Christian Laws wherein a women could not obtain a divorce on the grounds of adultery committed by the husband not only this it had be coupled with cruelty , bestiality and sodomy otherwise a married Christian women could not obtain a divorce. On the other hand a christian married man could simply declare that his wife is an adulterer and hence could use this provision to divorce her. The question of a Uniform Civil Code came in front of the Supreme Court in the case of triple talaq which shows that there were some defences in the This proves the patriarchal nature of the laws of the country and hence there is a need for a uniform code in the country where issues relating to marriage , divorce and other aspects are dealt with. To counter these shortcomings a need for a Uniform Civil Code is required . This code will give a uniform personal law for all the citizens of the country irrespective of their religion. This has been envisaged by our constitution makers under Article 44 but cannot be enforced by the courts because it comes under the heading of Directive Principles of State Policy which are not justiciable.


Origin of Uniform Civil Code-

The story of Uniform Civil Code began during the constitution making process. This was when the Sub- Committee on Fundamental rights was tasked to draw up a list of fundamental rights which would be later incorporated into the constitution of India. An important step that the Sub Committee took was to request its members to come up with their own drafts so a variety to choose from could be achieved. In the submission of BabaSaheb Ambedkar , a call for the adoption of the provision of Uniform Civil Code could be seen. Around the same time the different members had different opinions and one of them was that the fundamental rights should be divided into two categories : justiciable and non justiciable rights . As the terminology suggests the former would be enforceable in the courts of law whereas the latter would not be . A similar provision could be seen in the Indian Constitution where the fundamental rights are justiciable and the Directive Principle of State Policy which are not enforced by the courts but should be taken into consideration by the courts. Article 44 which contains the provision of Uniform civil Code is under Part IV of the constitution. After a couple of sittings and discussions , the sub-committee submitted its report to its parent committee which was the advisory Committee with a list of the fundamental rights split into two parts which were taken into consideration earlier. The provision of Uniform Civil Code found itself in the second part of this list which was the non-justiciable rights. It seems that the majority of the subcommittee felt thatUniform Civil Code provision would be best incorporated as a non justiciable right. However there are always dissenting opinions. Not all members of the Sub- committee agreed with this decision. The dissent note said that India had already been kept back from advancing into nationhood because of the existence of personal laws which were based on religions which in turn kept the nation divided into watertight compartments in any aspects of life. The note further added that Uniform Civil Code should be guaranteed within a period of 5-10 years. The dissent note goes on to demand that the Uniform civil Code be put into the justiciable part of the fundamental rights. In 1948 , Ambedkar presented the Draft Constitution to the constituent assembly for deliberation . The provision for Uniform Civil Code found itself in the Directive Principles of State Policy as Draft Article 35. The text of Article 35 went like this “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India ’On 23rd of November 1948, the Constituent Assembly took up this provision for discussion. Finally the Draft Article 35 was put into vote. The Constituent Assembly adopted the article which would be later re-numbered as Article 44 of the Constitution Of India.

Cases Laws involving an observation relating to Uniform Civil Code-


There are several case laws which involve an observation of the Uniform Civil Code. These case laws have helped to envisage an idea of an Uniform Civil Code and can maybe help in the future to bring an enactment for the same .These are as follows-

The first case is the landmark case of Mohammad Ahmed Khan v. Shah Bano Begum in the year 1985. This case is more commonly known as the Shah Bano case. The Supreme Court in this case directed the parliament to frame a Uniform Civil Code for the country. In this case , a penurious muslim woman claimed maintains from her husband under section 125 of the Code of Criminal Procedure after she was given triple talaq from him. The Supreme Court held that the Muslim woman will have a right to to get maintenance from her husband under section 125. The court held that article 44 of the constitution has remained a dead letter. Further , The then Chief Justice of India , Justice Y.V Chandrachud observed that , A civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.

After this decision , nationwide discussions , meetings and agitations were held and the then Rajiv Gandhi led government overturned the Shah Bano decision by the way of Muslim woman for maintain under section 125 of the Code of Criminal Procedure. The explanation given for implementing this act was that the Supreme Court had merely made an observation that enacting the Uniform Civil Code was not binding on the government or the parliament and that there should not be any interference with the personal laws unless the demand comes from within.The second instance wherein the Supreme Court again directed the government to take into consideration Article 44 was in the case of Sarla Mudgal v. Union of India. In this case , the question was whether a Hindu husband , married under the Hindu law, by his own choice of embracing Islam can solemnise second marriage. The husband did this mainly due to the reason that under the Hindu Laws, a polygamous marriage is not allowed but it is allowed under Islam. The court in this case held that a Hindu marriage which is solemnised under the Hindu Law can only be dissolved on any of the grounds specifically mentioned under the Hindu Marriage Act 1955. The court further added that simply by converting to islam and marrying again would not by itself , dissolve the Hindu Marriage under the Act. And , thus, a second marriage solemnised after converting to Islam would be an offence under section 494 subsection 5 of the Indian Penal Code. Thus as seen above the apex court has on several instances directed the government to realise the directive principle enshrined in our constitution and the urgency to do the same can be inferred from the same.



Case Study- Goa’s Civil Code-


Surprisingly , Goa is the only state in India which has a form of Uniform Civil Code. The Goa Family Law originated from the Portuguese Civil Code which had a continued implementation even after Goa’s annexation in 1961. The Goa Civil code is not a strictly uniform code as it has specific provisions for certain communities. The Hindu Men have the right to bigamy under specific circumstances mentioned in the Codes of Usages and Customs of Gentile Hindus of Goa. There are however certain conditions attached to it. If the wife fails to deliver a child by the age 25 or if she fails to deliver a ,male child by the age of 30, the Hindu Man can practice Bigamy. However the Hindu Laws prohibit bigamy. For the Roman Catholics, they can solemnise their marriages in a church after obtaining a NOC which is a No Objection Certificate from the Civil Registrar. For others however , a civil marriage can be accepted as a proof of law. The Catholics who are marrying in a church are excluded from the divorce provisions under the Civil Law. However this code is also not perfect in the sense that there are still some inequalities between a man and a woman . In goa marriages is a contract between two people of different sex with the purpose of living together and constitute the legitimate family which is as mentioned above , registered with the civil registrar. The particular rules and regulations have to be followed by the parties after they can live together and start their life but there are certain restrictions according to which these categories of person are prohibited from performing marriage . For eg: Any spouse convicted of committing or abetting the murder of other spouse shall not marry. The courts , in one of the cases have said that Goa’s Civil Code is a shining example for a code. But this code also has certain deficiencies which again goes on to prove that it can be a case where a Civil Code is in existence yet these laws are discriminating against women.

Secularism vs. Uniform Civil Code-



Secularism is and always has been an important aspect of the Indian Constitution. The spine of controversy revolving around Uniform Civil Code has been secularism and the freedom of religion enumerated under the Constitution. These two aspects are at the very ends pf the spectrum. The preamble of the constitution says that India will be a secular , democratic and a republic state. This means that there shall be no official state religion. This also meant that the state , however, cannot discriminate against anyone on the basis of religion as we have the provisions in the Constitution which says so. The state has to be considered with only one relation which is the relation between the citizens of the country. It is not concerned with the relation of the citizens with God. This simply means that religion should not interfere with the mundane life of an individual. Justice Khare in a recent case said that aspects such as marriage , succession are matters of a secular character which cannot be brought within the guarantee enshrined under Articles 25 and 26 of the constitution. It is imperative here to understand that the constituent makers have added the provision to practice their religion under the Fundamental Rights part of the Constitution which is justiciable in nature. However Uniform Civil Code is under the Directive Principle of state policy. This means that the constitution makers themselves were not too keen to interfere in the personal laws of the individual.Challenges that will be faced if the codification of a uniform Civil Code is put into motion- One of the biggest challenges that will be faced , if the Codification of the Civil Law happens would be its drafting. This would be apart from obtaining a Consensus. The question here would be that should this new law rip off all the personal laws irrespective of the religion and blend them into one 0r should it be presented as an entirely new law together which will be adhering to a constitutional mandate ? There are a lot of debates , discussions on this topic however no model law has been drafted. One more challenge that will be faced , if Uniform Civil Code is actually implemented, would be the agitation of people and chaos. The citizens of India have been practicing their respective religion from time immemorial. People usually are not keen to adapt to a new change that might happen which involves them. It can also be said that it will be difficult for the minority section of the society to thrive. There is also an apprehension that the Uniform Civil Code may be in conflict with the fundamental right of freedom to practice , propagate their own religions. The ruling government which will implement this may face the lack of will to face the consequences off abolishing the personal laws of the major religions and convince people of the justice and reform they want to bring which will help the nation to grow better. The most difficult hurdle to bring up the Uniform Civil Code would be the opposition from religious groups. The fundamentalism which is deep rooted in many of the religions in India doesn’t seem to vanish even in the 21st century. Because India is a diverse country , the customary practices vary a lot. The vast diversity of the personal laws make uniformity of any sort very difficult to achieve. It is very tough to find a common ground between these different committees.

Conclusion-

The Uniform Civil Code is not just a matter of gender justice, it is also a question of how a nation accommodates its own diversity.In India, freedom of religion exists with other rights like equality and non-discrimination. Those personal laws which are already being discriminatory to women are being struck down by the Indian Judiciary. This can be seen in many cases. And the society is still not ready to accept a civil code which could be implemented.

BIBLIOGRAPHY



BOOKS:

M.S Ratnaparkhi “Uniform Civil Code: An Ignored Constitutional Imperative.”

CASE LAWS-

Mohammad Ahmed Khan v. Shah Bano Begum

Sarla Mudgal v. Union of India


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