IS UNIFORM CIVIL CODE THE NEED OF THE HOUR
From a very utilitarian Indian perspective Uniform Civil Code lays out an array of laws that would govern the personal matters of all the citizens irrespective of their religion. Uniform Civil Code would essentially nullify the personal laws of various religions which were established in accordance to their religious scriptures and customs. UCC would be pervasive in replacement of laws related to marriage, adoption, inheritance, divorce, maintenance etc. Goa is the only Indian state to have an already existing common set of laws that oversee the personal matters of its people irrespective of their religion.
When we dig into the origin and history of Uniform Civil Code we would find its root to colonization period in India. In 1840, on the basis of the Lex Loci report, the British Government established uniform rules for offences, facts and contracts, but the personal laws of Hindus and Muslims are deliberately left to them. British India Judiciary, on the other hand, allowed for the application of British Judges of Hindu, Muslim and English rule. Even, in those days, reformers raised their voices to structure women's anti-discrimination laws, essentially within religious practices such as Sati, etc. The Constituent Assembly was set up in 1946 to frame our Constitution in Independent India, which consisted of two groups of members: those who wished to change society by introducing the Universal Civil Code, such as Dr. B. R Ambedkar, and those who were essentially Muslim leaders who perpetuated personal laws. The supporters of the Universal Civil Code even criticized the immigrant groups in the Constituent Assembly. As a result, only one line is applied to the Constitution pursuant to Article 44 of Section IV of the DPSP (Directive Principles of State Policy) which states that “The State shall endeavour to secure for the citizens of a Unform Civil Code throughout the territory of India”. As introduced in the DPSP, they are not enforceable in the judiciary, nor have any political disputes been able to go beyond it, because minorities, primarily Muslims, thought that their personal rules had been broken or revoked. A series of bills were passed to codify Hindu laws in the form of the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Preservation Act, 1956, collectively referred to as the Hindu Code Bill (covers Buddhist, Sikh, Jain as well as different religious denominations of Hindus) which provides for the right to divorce and inheritance, threw out casteism from marriage and eradicated polygamy and bygamy. Also, only three words about UCC not only influence our country, but they are enough to split the nation into two groups that make it a little difficult to make a decision. These three terms are national, social and theological. Politically, the country is split as BJP supports the introduction of the Universal Civil Code (UCC) and the non-BJP like Congress, the Samajwadi Party, which does not want to enforce the UCC. Socially, the literate citizens of the world who have analyzed the pros and cons of UCC and, on the other hand, illiterate people who have no knowledge about it and who are in the grip of political coercion, will make decisions. And religiously, there is a difference between the majority Hindus and the Muslim minority groups.
Let us know scrutinize some of the most crucial case laws with regard to UCC.
Shah Bano Case
Mohammad Ahmed Khan v. Shah Bano Begum is primarily regarded as the Shah Bano Case. In that case, in 1985, Shah Bano moved to the Supreme Court for seeking maintenance pursuant to section 125 of the Code of Criminal Procedure, when her husband divorced her after 40 years of marriage by giving her triple talaq and denied her routine maintenance. The Supreme Court handed down a decision in favor of Shah Bano by applying Section 125 of the Indian Penal Code and applying it to all people irrespective of religion. The Chief Justice, Y.V. Chandrachud, then noted that the Common Civil Code would support the cause of national integration by eliminating disparate obedience to the law. And then, the court ordered the Parliament to set up a UCC.
On the other hand, the Rajiv Gandhi Government was not happy with the judgment of the court; instead of endorsing it, the Government enacted the Muslim Women's Rights Act, 1986, to annul the Supreme Court ruling in the Shah Bano case and to allow the Muslim Personal Law to prevail in the case of divorce. In this act, it was claimed that the Muslim woman was entitled to maintenance only three months after the divorce, i.e. iddat, and then transferred her maintenance to her relatives or the Wakf Board.
Sarla Mudgal Case
This is the second instance in which, pursuant to Article 44, the Supreme Court has again guided the government. In this case, Sarla Mudgal v Union of India, the question was whether a Hindu husband, who had been married under Hindu rule, by adopting Islam, could celebrate a second marriage. The Supreme Court ruled that the acceptance of Islam as a second marriage constitutes an abuse of personal laws. It has also been argued that Hindu marriage can be dissolved under the Hindu Marriage Act, 1955, i.e. by actually converting to Islam and remarrying, would not dissolve marriage under the Hindu Marriage Act and would therefore be an offense under Section 494 of the IPC.
On a different note altogether, the passing of verdict on the Juvenile Justice (Care and Protection of Children) Act which vouched for allowing Muslim parents to adopt children which is sacrilegious as against their existing personal laws can be enamored as a move in correspondence of the Uniform Civil Code.
Need Of UCC
As the Common Civil Code will create a set of laws regulating the personal affairs of all people irrespective of religion, the hour may be required. It is, in truth, the pillar of true secularism. Such a progressive reform would not only help to end discrimination against women on religious grounds, but would also reinforce the secular structure of the country and foster unity. There is a need to change our social system, which is full of inequities, inequality and other aspects that are in conflict with our fundamental rights. As we know, there is a Criminal Code that applies to all citizens regardless of religion, caste, tribe and country of residence, but there is no equivalent code. As we know, there is a Criminal Code that applies to all citizens, regardless of religion, caste, tribe and country of residence, but there is no equivalent code on divorce and succession that is regulated by Personal Law.
The need for UCC is due to contradictions in tax legislation. Like the Hindu Undivided Families, they are excluded from taxation, while Muslims are exempt from paying stamp duty on gifts and also deal with the question of honor killings by extra-constitutional bodies such as Khap Panchayats.
As we have seen, the success of the controversial bill banning instant triple talaq is now punishable. Suddenly, the prospect of a UCC, while by no means a simple task, does not seem to be unlikely. In addition, more facets of personal legislation are likely to be considered for review, which is a sign of gradual progress towards UCC. Moreover, the decision of the Government in relation to Article 370 is also a monumental decision on national integration.
Article 25 and UCC
Article 25 allows for freedom of faith and freedom to observe, practice and spread religion. The UCC cannot therefore be forced on the citizens physically, since there would be a direct breach of Article 25 of the Indian Constitution. UCC and Personal Rules should also co-exist. UCC is nothing but the incorporation of new and progressive elements of all current personal laws that cannot be ignored.
Religion and UCC
But having preached all these, we mustn’t forget the implications UCC might bring into the Islamic communities of our country. When we talk about the Muslim culture, we must know that there are schools like Shias and Sunnis, and among them there is a strong perspective of theological thinking, such as Ithna, Ashariah, Ismailia, Hanafi, Maliki, etc., and all of them have different roots or jurisprudence, because their sects and religious obligations are often different from each other. Taking all this into account, this is a significant point to remember, since it would be pure speculation to place such different minorities on a common forum and to annoy or make it compulsory for them to adopt it. It would also be a risky stunt to take chances and to do such a dynamic socio-political challenge.
This issue will not only be pertinent to the Muslim community of our country but the rest as well. While it is a matter for the implementation of the Uniform Civil Code, we must take into account the facts that made it impossible to implement. As there is no specific term in the scenario that exists anywhere so that people can really understand or discuss the real motive behind the implementation of UCC. There is no content available on the UCC, which was agreed upon by eight individuals in the committee, which is totally out of the question as to how worthy that original proposal was, as it has not been recognized or endorsed.
Often, circumstances or how current laws will be dealt with are not clear if there will be a broadening of the spectrum of advocacy, or whether there will be new secular common laws that will essentially substitute existing or existing laws that function or dominate in one specific religion with those in a minority position.
We must know that there are many requirements or religious rites of any religion, which speak of the Hindu religion of the Saptpadi Ceremony, as clearly specified in Section 7 of the Hindu Marriage Act, 1955. According to which Groom and Bride wanted to take seven rounds of holy fire to make marriage legal, otherwise forbidden marriages would be dealt with.
The Supreme Court has repeatedly refused to accept public interest litigation on UCC, but has also recommended timely legislation for its implementation. It turned the enactment of the UCC into a matter for the legislature (Maharishi Avadhesh v. U.O.I) and exhibited aversion to hindering personal law (Ahmedabad Women Action Group v. U.O.I). However, in the case of Sarla Mudgal, the Supreme Court asked the government to re-examine the application of Article 44 with a view to protecting the minority and marginalized sections of society. In the case of Daniel Latifi, the relationship and comparison between the secular constitution and the welfare state principle has been reassessed.
The basic obstacle to UCC stems from the fanatical elements of minority communities (provoked by voting banking politics) who have long argued that any such code would infringe their fundamental right to practice their religion and would lead to interference in their religious affairs. It is different that the common members of such communities may want ramification or a reform of the law to ensure equality, but they are always forced and indoctrinated to be silent spectators in such circumstances, and therefore a frank and candid view from their side would never emerge.
The basic obstacle to UCC stems from the fanatical elements of minority communities (provoked by voting banking politics) who have long argued that any such code would infringe their fundamental right to practice their religion and would lead to interference in their religious affairs. It is different that the common members of such communities may want a change or a reform of the law to ensure equality, but they are always forced and indoctrinated to be silent spectators in such situations, and therefore a frank and candid view from their side would never emerge.
Concluding, India is a vast country with many variations in languages, culture, norms, values, the list would goon forever and moreover these changes are intertwined into our small and complex societal structure. Implementing an Uniform Civil Code into such a complex structure indeed becomes a very strenuous task and its implications even more perilous but having mentioned all this, there is an ever increasing need of ensuring equality to every community irrespective of their faiths and sooner these things get meted out the better.
Chetan Anand Mohaptra
2nd Year, 4th Semester
National Law University and Judicial Academy, Assam