Uniform Civil Code and its complications
Uniform Civil Code aims to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
There are many communities in India like Hindus, Muslims, Buddhists, Christians, etc. For them criminal law is same if a crime is committed by a Hindu or Christian, punishment is same for all but if a Hindu Marriages or Divorce or if a Muslim Marriages or divorce for them laws are different for various communities.
For now we do not have uniform civil code rather we have different civil codes for different communities. So a uniform civil code aims to replace all these personal laws of various communities by a single uniform law.
A uniform civil code will mean a set of common personal laws for all citizens. Uniform civil code is enshrined as article 44, as part of Directive Principles if States policy, in Indian Constitution. It makes the implementation of uniform civil code as duty of the state.
1835 2nd Law commission report
Under British rule Law commission stressed the need for uniformity in codification of Indian laws relating to crime, evidences and contracts but recommended that codification should not extend to matter like the personal laws of the Hindus and Muslims which derived their authority from their respective religions.
1858 Queen Victoria’s proclamation
As we know that after the revolt of 1857 power of ruling was moved from company to crown. Queen Victoria promised absolute non-interference in religious matters.
It could be argued that it was probably wise in 1858 for a foreign colonial power to stay away from areas related to religion and personal customs in the overall interest of maintaining peace. But in independent India, where sovereignty rests with the people, there is no external constraint that can prevent the Indian government- duly and successively elected to power on the principle of universal suffrage for seven decades- to legislate on a common uniform personal code.
Majority v/s Minority
It is not only non-Hindu who may have severe objections to promulgation of a law that will govern their most inherent beliefs and faith as well as customs and practices. There has been opposition to the principle in question among sections of the Hindu as well because of wide variations in customs amongst its many castes and communities.
It is also well known that the Hindu law for a long time discriminated against women by depriving them of inheritance, remarriage and divorce, and this discrimination not only presents in Hindu law but also in all other religious laws. Their condition, especially those of widows and daughters, was poor due to this and other prevalent customs. Could religious practices be employed to deny basic fundamental rights and freedoms to women? Could not the uniform civil code be employed to rectify the errors of a rigid discriminatory society and bring greater equity and compassion into social life?
Efforts towards uniform civil code
Movement by progressive sections in British ruled India and women’s organizations led to spat of laws passed with respect to the Hindus which were beneficial to women, such as the:-
Hindu widow remarriage Act, 1856
Married women’s property Act, 1874
Hindu inheritance (removal of disabilities) Act, 1928
Hindu women’s right to property Act, 1937
But these legislations on personal issues, generated debate and controversies and required a reasoned and measured response from the government of that time.
B.N. Rau committee of 1941, after so much opposition of these laws an official Hindu law committee was formed to study the possibility and the necessity of common Hindu law. This committee recommended a codified Hindu law, which would give equal right to women in keeping with the modern trends of society. However it must be mentioned that its focus was primarily on reforming the Hindu law in accordance with the scriptures. Many discussions held but the Hindu code bill lapsed and was resubmitted in 1952.
Based on these recommendations, a bill was then adopted which legalized divorce, opposed polygamy, gave rights of inheritance to daughters. In the mid there was an intense of the code, so the provisions had to be passed in separate parts:
The Hindu marriage Act, 1955
The Hindu Succession Act, 1956 to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs. However, there were separate personal laws for Muslims, Christians and Parsis.
The Hindu Minorities and Guardianship Bill, 1956
Adoption and Maintenance Bill, 1956
The question remains of this day, why was the personal law of the Hindus alone being codified and why a uniform civil code for the entire populace was not being attempted by the framers of the constitution? This question was answered by G.R. Rajagopal, “it was felt that an attempt should be made to codify the Hindu law and if this succeeded, and of measures produced thereby had in themselves intrinsic merits commending them for universal application, the time would not be far off when other communities might like to follow suit and ask for reconsideration of their own law in the light of changed situations.”
Uniform civil code got into the political narrative, there was so much criticism of the Hindu code bill especially by right wing fundamentalists, they criticized the bill on some grounds that we need to protect the hallowed traditions of the Hindu Shastras, why these laws only for Hindu dharma, why Muslim personal laws remains untouched, they also point out that measures had not been circulated so as to ascertain public opinion and was being pushed through hastily, grant of equal property rights to women threatened the well-entrenched economic rights of the male in the society. A section tried to suggest that the Hindu code was, after all, a communal measure and a uniform civil code should have been made instead, to give effect to the secular ideals of the country.
How UCC got into the constitution? Nehru accepted that the bill was incomplete. A UCC for him was essential for the country, but he hesitated in forcing it down upon any community, especially if that community was not ready. In a gesture to indicate the willingness of parliament to consider uniform civil code at some later point in time, it was decided to add the implementation of a UCC in article 44 as a Directive principle. This decision to include the UCC as a non-justiciable Directive was opposed by progressive women members. Aparna Mahnta said that “failure of the Indian state to provide a uniform civil code, consistent with its democratic secular and socialist declarations, further illustrates the modern state’s accommodation of the traditional interest of a patriarchal society”
In the constituent assembly, there was a division on the issue of putting Uniform civil code in fundamental rights chapter. This was settled by vote, by the majority of 5:4, the fundamental rights sub-committee headed by sardar vallabhbahi Patel held that the provisions was outside the scope of fundamental rights and therefore Uniform civil code was made less important than freedom of religion. Views of Muslim members in the constituent assembly, some members sought to immunise Muslim personal law from state regulation. Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal law exempted from article 44, said a secular state should not interfere with the personal laws of people. Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
Dr B.R. Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
Alladi Krishnaswami, who was in favour if a uniform civil code, conceded that it would be unwise to enact Uniform civil code ignoring strong opposition from any community.
In order to bring uniformity, the courts have often said in their judgements that the government should move towards a uniform civil code.
Shah Bano case, 1985:-
A 73-year old woman called shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District court and the High court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law. Under Muslim personal law, maintenance was to be paid only till the period of iddat (three lunar months-roughly 90 days). Section 125 of criminal procedure code that applied to all citizens, provided for maintenance to the wife.
The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision section 125 of the all India criminal code, which applied to all citizens irrespective of religion. Further, it recommended that a uniform civil code be set up. The judgement in the Shah Bano case is well known, but the courts have made the same point in several other major judgements. By arguing that practices such as triple talaq and polygamy impact adversely in the right of women to a life of dignity, the centre has raised the question whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights.
Key Supreme Court observations in Shah Bano case:-
It is a matter of regret that Article 44 has remained a dead letter.
UCC will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.
No community is likely to bell the cat by making gratuitous concession on this issue. It is the state which is charged with the duty of securing a UCC and, unquestionably, it has the legislative competence to do so.
We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made it the constitution is to have any meaning.
Piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice that justice from case to case.
Sarla Mudgal Case:-
In this case, the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnise a second marriage. The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955. Conversion to Islam and marrying again would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code.
John Vallamattom Case:-
In this case, a priest from Kerala, John Vallamattom challenged the Constitutional validity of Section 118 of the Indian Succession Act, which is applicable for non-Hindus in India. Mr. Vallamatton contended that Section 118 of the act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will. The bench struck down the section as unconstitutional.
In ABC VS the State (NCT of Delhi) decided on July 6, 2015 the court dealt with the issue of guardianship of a Christian unwed mother without the consent of the child’s father. While ruling in the woman’s favour, it said: “It would be apposite for us to underscore that our Directive principles envision the existence of a uniform civil, but this remains an unaddressed constitutional expectation.”
Jose Paul continuo VS Maria Luiza the Supreme Court stated, “Whereas the founders of the constitution in article 44 in part iv dealing with the Directive principles of state policy had hoped and expected that the state shall endeavour to secure for the citizens a uniform civil code throughout the territories of India, till date no action has been taken in this regard.”
21st Law commission of India on uniform civil code, 2018: - “Neither necessary nor desirable at this stage”
They made the observations that don’t impose Uniform civil code that everyone should be same; there should be uniformity in personal laws. We have diversity and it is celebrated all over in India. So have uniformity in personal laws, make sure that there should be no unfair treatment against women.
Uniformity- Difference does not always imply discrimination in a robust democracy. So a unified nation does not necessarily need to have “uniformity”. Cultural diversity cannot be compromised to the extent of preserving uniformity. As, uniformity itself cannot become a threat to the territorial integrity of the nation.
Secularism- Secularism could not contradict the plurality prevalent in the country. The term ‘secularism’ has meaning only if it assures the expression of any form of difference. This diversity, both religious and regional, should not get subsumed under the louder voice of the majority. However, discriminatory practices within a religion should not hide behind the faith to gain legitimacy.
Recommendation by law commission:-
The commission stresses on efforts to reconcile the country’s diversity with universal arguments on human rights. The commission has called for the codification of all personal laws. There should be basic theme that we have to protect human rights, gender rights, fundamental rights, etc. These should be our main priority to protect rights and not destroy our historic diversity to introduce uniformity.
Universal principles- Codification of different personal laws could help arrive at certain universal principles. These may facilitate prioritizing equity rather than imposing of a uniform civil code. A uniform code would only discourage many from using the law altogether. This is especially gives the fact that matters of marriage and divorce can be settled extra-judicially as well.
Polygamy- It suggested making polygamy a criminal offence and applying it to all communities. Interestingly it is found that polygamy in Muslim community is approved but it is rare to found polygamy in Muslims. Danger is where when people of other religion converted themselves into Muslims to perform polygamy. So to stop this we have to make it a criminal offence. This is not recommended owing to merely a moral position on bigamy, or to glorify monogamy. It rather emanates from the fact only a man is permitted multiple wives, which is unfair.
Uniform civil code of Goa:-
Goa is the only Indian state to have a UCC (uniform civil code) in the form of common family law. The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn’t replaced after its liberation. The Uniform Civil Code in Goa is a progressive law that allows equal division of income and property between husband and wife and also between children (regardless of gender).Every birth, marriage and death have to be compulsorily registered. For divorce, there are several provisions. Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq. During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple. Each spouse in case of divorce is entitled to half of the property and in case of death; the ownership of the property is halved for the surviving member. The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.
However, the code has certain drawbacks and is not strictly a uniform code. For example, Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits polygamy.
With repeated exhortations by judiciary, a strong women’s movement there is a better chance of it getting through now. All India Muslim personal law board (AIMPLB) is clear that it shall oppose any attempts to adopt a UCC. Yet, the recent Triple Talaq Act found approval in most places, including Muslim women, though clerics still protest. In an age when citizens’ rights are of paramount significance, and the admitted position is to move towards a society which respects human rights irrespective of caste, religion, region and gender, the imperative to legislate on a UCC cannot be denied. The debate is not on is UCC is good or bad, it is good because it gives equal rights to women and remove discrimination but debate is on how legally UCC can be formed without agitations. Instead of using it as an issue to gain political advantage, political and intellectual leaders should try to evolve a consensus. The question is not of minority protection, or even of national unity, it is simply one of treating each human person with dignity, something which personal laws have so far failed to do.
Netik Bhatnagar a 2nd year student pursuing B.A. LL.B from S.S. Jain Subodh Law College, Jaipur (Rajasthan).