India is commonly known as Land of Cultural Diversity, with multiple languages, cultures and religions. India is a Secular Country which was enshrined and included in the preamble under the 42nd Amendment in 1976. Secularism as under Constitution means that State shall not follow any religion and neither will the people be discriminated on the ground of religion they follow. In other words, it can be said that the State will not be dependent on any kind of religious institutions for taking decisions for the state and the state will not interfere with the religious matters and similarly the religion will not interfere with the efficacy of the State. In India, religion has always played a significant role whether it was during the Partition of India and Pakistan or when the religions are being used for the political matters.
India being a diverse nation with people following their own, culture, religion and customs they are governed by their own personal laws. And each community follows different codes for example, the Hindus, Jains, Sikhs and Buddhists are Governed by the Hindu Marriage Act, 1956 for marriage, divorce and maintenance related issues. Similarly, the Muslims follow the Islamic Law and the Christian follows the Christian Law. It can be seen that personal laws make it difficult for judgments as different kind of judgement has to be given in different situations and due to discrepancies in the personal the distribution of judgement is also difficult. In other word the distribution of justice does not remain uniform in its application and faces a lot of difficulty and to counter this problem Uniform Civil Code was introduced in the Constituent assembly and was seriously been discussed in the year 1947. The basic idea of this Code was to replace the existing personal laws of India and have a uniform law that will consider the citizens of India, irrespective of the religion. The makers of the Constitution were envisaged under Article 44 of the Constitution but it has faced strongly oppose of Article 25 of the Constitution. The Article 44 of the Constitution of India states that State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India but it ahs be 70 years and more yet we have not been able to attain the level of sophistication to accept and adopt the constitutional mandate and the basic reason behind this is the personal laws and different religion.
This paper mainly aims to understand the concept of Uniform Civil Code in more practical and pragmatic way and to ensure that whether it can be impended peacefully in a country like India keeping all the legal dimensions in mind.
1.2. Research Methodology:
This research is based on doctrinal study and secondary data collection method has been used. The researcher has tried to take the views from books, articles, commentaries, and other writings to incorporate the various view of the multitude of jurists, with the intention to present a holistic view. The researcher has also used the case laws as the reference, so as to understand the judicial procurement.
1.3. Research Question:
Whether the Uniform Civil Code should be biding with personal laws or a new law?
1.4. Review of Literature:
(Flavia Agnes) Uniform Civil Code of India has been referred to as the overachieving Civil Law Code in India. In this chapter the debate of whether the Uniform Civil Code governs all people, irrespective of their religion or does it supersede the right of citizens to be governed under different personal laws based on their religion or ethnicity has been discussed. In a journal article (Vaibhav Choudhary) has said that the bill of Uniform Civil Code was introduced in the Indian Parliament but it never became an act due to oppositions. He also discussed the objection which was raised regarding the adoption in Islam and how it will be violative to Article 25. (Sharma) in a journal article has explored the interplay between the issues of law, culture, and religion in light of the various intra and inter community disputed. He has also proposed some guidelines that can be taken into consideration. (Raya Hazarika) in the Journal Article has given the opinion that Uniform Civil Code has always been ignored which must be revied in the current India and the author also insists that this is the high time to give the importance to the Uniform Civil Code. In a book by (Ajai Kumar) the author proposes steps for a successful implementation of a Uniform Civil Code and how it can be done without any violation. In the book (M.S. Ratnaparkhi) the author has discussed in depth the containments in implementing a Uniform Civil Code in India and why it is a foreign concept and has spoken about the challenges to be faced regarding the implementation of the Uniform Civil Code. A book published by (Dhagamwar, Vasudha and Indian Law Institute) draws the comparison between the Uniform Civil Code and the Personal Laws and the issues are also been discussed.
To understand the practical problem in the implementation of the Uniform Civil Code.
To study whether the Uniform Civil Code is violative to the Article 25 of the Indian Constitution.
The Uniform Civil Code is not violative to Article 25 and Article 26 of the Indian Constitution.
UNIFORM CIVIL CODE AND THE INDIAN CONSTITUTION
India is a secular nation which denotes that it does not follow any one particular religion or there is no official religion to follow for the country. In other word, the state will not be dependent on any religious institutions for taking the decisions for the state. And at the same time the state will not interfere in the religious matters and vice versa. India is also the largest democratic country with the 2nd most populous country in the world. India follows a diverse culture; religions and the people are free to practice any religion.
The Preamble of India clearly states that India is a Secular, Democratic and Republic. A secular state shall not discriminate against anyone on the ground of religion and therefore in India there is no State religion. The process of secularism is intimately connected with the goal of uniform civil code like a remedy. Justice Jeevan Reddy in the case of S.R. Bommai vs. Union of India stated that religion is relate to individual faith and it should not be connected with secularism and it can be regulated by the State by enacting law. As defined under the Doctrine of secularism which is adopted from the United States and the United States, there is a wall between the state and the religion. Article 25 and Article 26 of the Indian constitution as enforces fundamental rights which guarantees the freedom of religion and freedom to manage religious affairs. And at the same time Article 44, which comes under the Directive Principle of the State Policy, states that state shall endeavor to secure a Uniform Civil Code in India, which is not enforceable in a court of law. Uniform Civil Code is a uniform method or uniform law which governs the people as uniform and does not discriminate on the basis of any religion or faith.
In India, secularism has always been separated from the spiritualism or individual faith, but at the same time India has not undergone through any kind of renaissance or reformation and thus it has become the responsibility of the state to interfere in the matter of religions so as to remove the impediments n the governance of the state. The basic reason why India has not gone through any reformation is the conflicts between personal laws which may increase the conflicts and may show the reverse effect of the law. People find it difficult to adapt certain changes easily and when it comes to society where religion define the way of life, people connect themselves with their religion without understanding that it is the human being who made the religion not the religion made the human being. There is a need of uniform law which will govern and regulate the behavior of people of all the religions and not any particular section of the society. As a new principle or law evolves and when it comes to the knowledge of the people several questions, issues and criticism will arise and will pave the way and the most important question will arise how it will unify with the personal laws. Therefore, Uniform Civil Code when coming into existence has to balance between the protection of fundamental rights and the religious principles of the different communities that exist in the country and has to walk in a parallel path.
UNIFROM CIVIL CODE AND THE PERSONAL LAWS
In India women are considered inferior in the most personal matters as compared to men, when it comes to marriage, or succession, adoption or even inheritance as India is a patriarchal Society since the ancient times. In the year 1955 and 1966, under the Hindu Law women did not enjoy the equal rights along with the Hindu men be it in any matter. Hindu women were not allowed to hold property as its absolute owner till the case of Mary Roy v. State of Kerala 1986, in which the Supreme Court held that women can hold the property and have the equals rights like the men do.
When it come to the matter of adoption, a Hindu Women was not having the right to adopt a child on her own and perhaps she could not be the natural guardian of her children during the lifetime of her husband. This situation clearly shows the patriarchal nature of the India society. Even though the law makers have tried to codify the Hindu Law but even today certain discriminatory provisions still exist. As of the fact under Hindu Law at some part of the country Hindu women cannot be the coparceners, therefore she is not allowed for the share in coparcenary. Thus, it has been obvious to the above facts that the codification in personal law of Hindus has not succeeded completely, in diminishing gender inequality.
When it comes to Muslim Law, in the Pre-Islamic Arabia, there is a patriarchy situation too the women enjoyed a secondary status i.e., women are since considered secondary to men. The advent of Islam has contributed much when it comes to deterioration of the Muslim women and the escalation of their problems. Men and Women are given equal rights according to the Holy Quran and has placed women in a respectable position. However, there are some aspects where the Muslim women specially wives are inferior in the Islam. In Islam if a man marries for fur times then it is fine whereas the women cannot but if they do, they are considered to be impure. Unlike Hindu Law, in Islam women don’t have the right to divorce their husbands, and by just pronouncing Talaq for three times a husband can get divorce which was discriminatory until the recent judgement of Shayara Bano v. Union of India 2017. In spite the message of Holy Quran it was held void by the Supreme Court. In matter of the succession, a Muslim is discriminated against the assertion of certain Muslim scholars that the Islam in this regard is more progressive and liberal. According to the scholars when two opposite sex of the same degree inherit the property of the deceased, the Muslim male gets twice the share that of the female. Even in the matter of maintenance, the Islam law says that the Muslim wife is not required to be maintained after the Iddat period. There is still a controversy as under the Criminal Procedure Code it is the duty or obligation of the husband to maintain his wife including the divorced wife until she maintains herself, which is a secular law and is applicable to all. The Supreme Court in the judgement of Mohd Ahmed Khan v. Shah Bano Begum held that the Muslim husband is liable to maintain his divorced wife beyond the iddat period following the Section 125 of the Criminal Procedure Code which has to be applicable to Muslims too. The parliament has passed the Muslim Women Act, 1986 as the controversy continued. Under this Act the judgement of Shah Bano Case was overruled and upon this effect the Muslim husband is not liable to maintain his divorced wife beyond the iddat period unless both the spouses submit to the court at the appropriate time that they would like to be governed under the Criminal Procedure Code. This is like having the provisions but not following it as for the sake of protection of the Personal law instead of giving enough justice to the women or safeguarding the right of women who is suffering the most.
UNIFORM CIVIL CODE IN GOA
Goa is the only state in India that follows the Uniform Civil Code provisions regardless of religion, gender, caste. In Goa Hindu, Muslim, Christians are all bound with a common family law for the law related to marriage, divorce, succession. Goa became the part of union territory of India in 1961 by the virtue of the Goa, Daman and Diu administration act 1962 and the parliament authorized the Portuguese Civil Code of 1867 in Goa and stated that it shall be amended and to repealed by the competent legislature. The Supreme Court has also noted that Goa can be a “shining example” for Uniform Civil Code as the Portuguese Civil Code ensured the progressive Civil Code to ensure gender justice and equality, without trespassing the boundaries of guarantees.
Goa is the only state in India which permits any citizen to marry outside the area of any special religious personal law, thus it is free from personal law. In Goa marries is a contract between two people who wants to live together and they need to register in the office of the civil Registrar. The Civil Code in Goa set up some guidelines and regulation to the administration of personal matters of the people regardless of religion and ensuring that their fundamental and Constitutional rights remain unviolated.
The Special Marriage Act, 1954 which provides provisions regarding the marriage of two person irrespective of their religion, this law ensures the marriage outside the customs of their personal law and this Act is applied to all over India. This law governs the succession under Indian Succession Act even the Divorce provisions and Maintenance Act. In Goa, the Muslims have to register their marriage and the provisions of Goa ensures that polygamy is illegal. In Goa there is a special provision regarding the distribution of property during the marriage period that all the property and wealth owned by the couple has to be divided in equal half and if the spouse dies the share of the property goes to the other and the other half is divided between the children with the same ratio.
CONCLUSION & SUGGESTION:
India is a welfare state with diverse culture and the Constitution of India ensures freedom of religion to exist with other rights like equality and non-discrimination. The Constitution of India make sure to guarantees freedom of conscience and free profession, practice and propagation of religion and freedom to manage religious affairs under Article 25 and 26. The Constitution of India make sure to protect the vulnerable individuals within minority groups by making special provisions for them.
The biggest question for India is can we successfully implement Uniform Civil Code? The problem with India is it cannot have the models like the western countries have as the conditions are not similar as western countries with democracy templates liberalism and most of the Western countries claim to be secular but still, they are biased to Christianity and the middle east countries are biased towards Islamic Law. To successfully implement Uniform Civil Code in India there is a need of social support or the state must have the capacity to implement their own provisions. If the Civil Code is implemented successfully but still, it needs to be careful in its choices. The most important question would be whether the Civil Code would be obligatory or compulsory to all, biding all the personal laws, or whether is would be allowing the citizens to live under their own religious institution if they prefer to. The people need to keep all the disagreements and the people need to outline their ideals so as to pursuit the dream of Common Civil Code. The Constitution has been enacted in 1950, since then it has been 70 years but still there has been no effort towards the implementation of Uniform Civil Code or to enact new provisions.
Uniform Civil Code has been enacted under the Directive Principle of State Policy and the State have the power to follow and have the provision to amend in the law. It has been the high time that Uniform Civil Code should not be blend under the personal laws and it should be made clear that the code does not violate the Article 25 and Article 26 as the problem with blending it with personal law will be that there will may be chances where it will be biased to personal laws. And the parliament should enact new Act which will be similar to Special Marriage Act of 1954 and which does not favor or bias towards any religion. It is the people who need to understand that there is a big difference in Law and religion and they are two different concepts. The people also need to understand that the Constitution of India ensues that people can follow their religion and their rights will not be infringed even after the enactment of Uniform Civil Code. Thus, people need to start viewing the religion and law as two different concept and should focus on empowerment of all the people regarding of caste, religion, sex. This is the time when the law makers need to bring in changes in Uniform Laws in India.
Agnes, Flavia. “The Supreme Court, the Media, and the Uniform Civil Code Debate in India.” The Crisis of Secularism in India, 2006, pp. 294–315.
Dhagamwar, Vasudha, and Indian Law Institute. Towards the Uniform Civil Code. 1989.
Kumar, Ajai. Uniform Civil Code: Challenges and Constraints. 2012.
Ratnaparkhi, M. S. Uniform Civil Code: An Ignored Constitutional Imperative. Atlantic Publishers & Dist, 1997.
Choudhary, Vaibhav. “A Proposal for Uniform Civil Code for Law of Succession in India.” SSRN Electronic Journal, 2010.
Hazarika, Raya. “Should India Have a Uniform Civil Code?” SSRN Electronic Journal, 2010.
Mohd Ahmed Khan v. Shah Bano Begum
S. R. Bommai v. Union of India
Shayara Banu v. Union of India & Ors.
Sarla Mudgal v. Union of India
John Vallamattom v. Union of India
Acharya Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta
Lily Thomas, Etc. Etc. vs Union Of India & Ors.
Agnes Alias Kunjumol vs Regeena Thomas
Ahmedabad Women Action Group vs Union of India
The State of Bombay vs Narasu Appa Mali