Uniform Civil Code: Mandatory Or Voluntary?

11 min


12
12 points

K.Yugantara*

Abstract

India is a cosmopolitan country with a mosaic of cultures, customs, faith and beliefs reflecting unity in diversity. Freedom of religion exists with other rights such as equality and non-discrimination and laws cannot exist too far apart from social norms. This paper focuses on the  protracted debate surrounding the implementation of the Uniform Civil Code in a heterogeneous society like India, where various personal laws exist, which is Article 44 of the Constitution. A ray of hope was seen when gender developmental schemes were being legislated and Article 44 of the Constitution enumerated a Directive Principle of State Policy, securing a uniform civil code throughout India. The presence of different personal laws makes it impossible to achieve the golden goals enshrined in the preamble of the Constitution. Further, it highlights the parallel path of both personal laws and the Uniform Civil Code. Though there have been various cases where the Supreme Court has shown an inclination towards establishing UCC, however no concrete step has been taken so far in this regard. The aforesaid instances have been cited in this article. It deals with the constitutional context, such as Article 25 of the Constitution to see whether it violates the norms and provisions of Fundamental Rights. Finally, it is concluded by analyzing the Uniform Civil Code in depth by plotting out the pros and cons along with the challenges involved in its implementation, which is tough but not an impossible task.

Keywords: cosmopolitan, religion, personal laws, discrimination, constitution.

I. INTRODUCTION

India being a secular country embraces numerous religions, some of which are Hinduism, Islam, Jainism, Christianity, Buddhism, etc. The term ‘Secularism’ is enshrined in our Indian Constitution and has found its place in the Preamble.[1] It is the principle that ensures the separation of the state from religious institutions. Further, the state will not follow any particular religion, and citizens are at liberty to practice, profess, and propagate any religion of their choice without being discriminated against on religious grounds. This concept is enshrined under Article 25[2] and 26[3] of the Constitution. Religion has always been a source of conflict and is used as a weapon to defend oneself. The criminal code in our country is applicable to all citizens irrespective of their religion, caste, or tribe. But, there is no such similar code relating to matters like marriage, adoption, succession, etc. as they are governed by various personal laws which are different for every religion.

For instance, religious denominations of Hindus including Sikhs, Buddhists and Jains are governed by the Hindu Code Bill, wherein a series of bills were passed to codify Hindu laws, comprising of The Hindu Marriage Act, 1955, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956. The emergence of these Acts granted the rights of divorce and inheritance to women, made inter -caste marriage relevant, and also abolished the practice of polygamy and bigamy among Hindus. On the other hand, Muslim personal laws are primarily unmodified and are traditional in their approach which is governed by the Shariat Law, 1937. It takes a stance that the state shall not interfere in matters of personal disputes, and religious authority would make decisions, keeping in mind the principles and interpretations of the Quran and Hadith. Similarly, Christians and Jews are governed by their own personal laws.

Due to the presence of varying personal laws, there is no uniformity which leads to discrepancies and differences, because there are times when personal laws have denied equal rights and status to women. At times it becomes difficult to render justice based on religion In order to overcome these shortcomings, the enactment of the Uniform Civil Code has been proposed.

II. WHAT IS UNIFORM CIVIL CODE?

Uniform Civil Code places a set of laws that will govern the personal matters of all its citizens regardless of the religion they follow. It means having a uniform personal law throughout our country, ensuring the protection of a citizen’s Fundamental and Constitutional rights. It seeks to replace all the aforesaid personal laws based on varying customs and scriptures with a common set of rules governing everyone. After taking decisive steps towards national consolidation, this topic was mooted seriously in the Constituent Assembly of 1947. Later, it had been envisaged by the makers of our Constitution under Article 44 in Part IV of Directive Principles of State Policy (DPSP). Dr. B.R. Ambedkar felt the need for a Uniform Civil Code but wanted it to remain voluntary, as few believed that it was violating the provisions of Article 25 of the Indian Constitution. Due to this reason, it was neither enforceable by the courts nor could it lead to any political discrepancy, because the minorities felt that their personal laws were being abrogated.

There are three main aspects that are enough to divide the nation into two categories due to which the implementation of the Uniform Civil Code has become difficult. These are - social, religious and political. Socially, literate individuals are aware of the pros and cons of the Uniform Civil Code. On the other hand, illiterate individuals have no idea about this concept, and they believe that their religious rights will be lost after its implementation. In the case of religion, there always exists a gap between the majority and minority groups in our country like the Hindus and Muslims. Politically, the nation is divided, as BJP reiterated its stand in its manifesto to implement this code in India’s proud, diverse and plural society.[4]

III. PERSONAL LAWS AND UNIFORM CIVIL CODE

The term gender is an intricately sculpted word. Though several legislations have been enacted to treat people of all genders equally, it is true that the basic human rights and opportunities are not being uniformly distributed.It is an undeniable fact that the status enjoyed by women in other developed countries is enviable compared to the status enjoyed by women in India.

 They are considered to be inferior especially when it comes to personal matters like matrimony, succession, adoption, and even inheritance. The solution to unravel such issues is still a mirage.

Until 1955, under Hindu law,  women did not enjoy equal rights as that of men as  polygamy was permitted. She could not be an absolute owner of any property except for Stridhan. She had limited estate with limited interest, hence whenever the issue of alienation of property arose, she could not do it on her own. In the case of adoption, she was considered to be an agent of her husband and could not adopt a child and become a natural guardian during the lifetime of her spouse. Such instances illustrate  how Indian society was patriarchal in nature.

 When we talk about Muslim law, women were always considered to be inferior and secondary to men. In Islam, a man is allowed to have four wives, but if a woman marries more than once, she is considered to be unchaste. Triple talaq was considered to be highly discriminatory and was practised by men, in spite of the message given in the Quran. It was held as unconstitutional and unlawful in the case of Shayara Bano vs. Union of India.[5] In the case of succession, women still get half of the share as that of men when two residuaries of the same degree but opposite genders inherit the share of the deceased person. These instances are against the assertion of certain scholars who believe that Islam in this regard is very liberal and progressive.

IV. JUDICIAL APPROACHES

In postcolonial India, the judiciary, through its interpretations has paved a way for Uniform Civil Code which is appreciable. Some instances are discussed below.

In the case of Mohammad Ahmed Khan vs. Shah Bano Begum[6], the Supreme Court held that Section 125[7] of the Criminal Procedure Code (CrPC) is applicable to all citizens irrespective of their religion and the Muslims are liable to maintain their wives even beyond the iddat period. Shah Bano had moved to Supreme Court in 1985 for seeking maintenance under S.125 of CrPC after her husband had divorced her by triple talaq after 40 years of their marriage and also denied her of regular maintenance. Supreme Court speaking through Chief Justice Y.V Chandrachud observed that Uniform Civil Code would help in the cause of national integration.  The controversy began during Rajiv Gandhi’s government tenure who was not satisfied with the decision. This was when the parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to nullify the Supreme Court’s decision in the Shah Bano case and let the personal laws prevail even in the matter of divorce. The effect was that a Muslim husband is not liable to maintain his divorced wife beyond the iddat period. They would be governed by the Criminal Procedure Code only if both the spouses agree not to be governed by the personal law.

In the Daniel Latifi case[8], the Muslim Women’s Act (MWA) was challenged on the ground that it was violative of Article 14, 15 and 21 of the Constitution. The Apex court, while holding the law as constitutional, harmonised it with Section 125 of CrPC and declared that the Muslim wife is entitledto maintenance for a lifetime or until she is married.

Another instance, where the Supreme Court directed the government under Article 44, is the Sarla Mudgal case.[9] In this case, it was held that a Hindu male converting to Islam only for solemnizing a second marriage circumvents Section 494 of the Indian Penal Code and is to be declared void. At this point, the fate and position of the second wife in society will be degraded, which will violate Article 21 of the Constitution. The judges felt a need to establish a Uniform Civil Code.

In another case of John Vallamattom vs. Union of India[10] Section 118 of the Indian Succession Act was declared to be unconstitutional and discriminatory as it imposed several unreasonable restrictions on Christians on their donation of property for religious and charitable purposes by will. It was thus held that Section 118 was anomalous, violative and discriminatory of Articles 14[11], 15[12]and 25[13] of the Indian Constitution.

The verdict on the Juvenile Justice (Care and Protection of Children) Act, 2000 seemed to be a step forward in achieving the Uniform Civil Code. Through this verdict, even the Minorities including Muslims and Christians can adopt children with full rights as a natural guardian.[14] The practice of adoption was not recognized by the Muslim community. However, it was held that while personal beliefs are important, still they cannot direct the provisions of an enabling statute. This case was presented by Shabnam Hashmi when she was only given guardianship rights, as this practice was not recognized by Muslim personal law. She claimed adoption on humanitarian grounds only. More aspects of personal laws are taken up for scrutiny toward the incremental progress of the Uniform Civil Code.

Scrapping Article 370 which is a part of 35A of the Constitution to put Kashmir on the same footing as the rest of India is also a step towards adopting the Uniform Civil Code. This means that all the Indian laws will be applicable to the people of Kashmir and they will not have a separate Constitution. The political agenda of Ram Temple in Ayodhya was also considered to be a part of the Uniform Civil Code. Supreme Court had done so by putting aside the judgment of the Allahabad High Court in the case of M. Siddiq v. Mahant Suresh Das.[15]

The Apex Court, being the final arbiter, must conserve the balance by ensuring there is no dominance of freedom or belief of one individual over the other. Such examples also include the instant ban on triple talaq which is now a punishable offence.[16]

V. UCC, SECULARISM AND INDIAN CONSTITUTION

Indian Constitution provides powerful safeguards to protect individual rights irrespective of caste, religion, creed, sex, race and place of birth under Part III. Strong fetters have been put upon the state to not formulate any laws that will pave a way for discrimination on the aforesaid grounds. In the same way, secularism is also a basic feature and the state extends it to respect all religions equally. It is believed that religion is concerned with the relation between humans and God. The controversy revolving around the Uniform Civil Code has been secularism which is enumerated in Article 25 and 26 of the Constitution. As per Justice Jeevan Reddy in the case of S.R. Bommai vs. Union of India, [17] religion is an individual faith, cannot be mixed with secular activities and can be regulated by enacting a law. As discussed earlier, personal laws sometimes come in conflict with Fundamental Rights which are guaranteed under Article 14, 15 and 21 of the Constitution manifesting gender discrimination. If every religion is at liberty to preserve the essential part of their custom, then it should be in such a way that it does not encroach upon one’s Fundamental Rights. Article 44 reads that the state shall endeavour to secure a Uniform Civil Code in India which will govern all citizens equally and not discriminate them on the basis of religion or faith. However, a major problem in applying the Uniform Civil Code is  what will constiture as the ingredients of this code. Personal laws differ for every religion and its unification will bring resentment and enmity towards one another. It cannot be forcefully imposed as it will be in violation of Article 25 of the Constitution and hence, Uniform Civil Code and personal laws should co-exist. If it is implemented, then it should strike a balance to protect the Fundamental Rights and religious principles. Practically, the Uniform Civil Code is not against secularism and actually does not violate Article 25 and 26 and its implementation will not interfere in one’s religious beliefs. It should presumably incorporate modern progressive aspects of all personal laws and discard those which are retrograde to simplify the Indian legal system. And it also does not aim to repeal all the personal laws as Dr. B.R. Ambedkar rightly stated that it would be implemented when the citizens declare that they are ready to be governed by such law. But such voluntary nature is a contradiction in terms.

VI. CRITICAL ANALYSIS

The presence of multiple personal laws creates confusion and complexities in adjudicating personal matters which results in delayed justice. Implementation of a Uniform Civil Code can help in eliminating the overlap of these laws. It will lead to simplification of laws and reduces the litigations emanating from several personal laws.  A unified code will de-link law from religion promoting national unity and solidarity for the protection of vulnerable sections in our society to achieve a secular and socialist pattern. It will liberate women from the patriarchal nature by promoting gender equality in order to provide equal status to all. It will also help in shaping universal principles of equality, modernity and humanity among the young population. Vote banks politics can be minimized with this move. Moreover, constitutional mandates under Article 44 will be fulfilled.

To bring the Uniform Civil Code onboard will be a sensitive and tough task in a vast culturally diverse country like India, because the minorities perceive it as encroachment of their right to freedom and that the culture of the majority will be imposed over them. The Constitution provides the right to freedom but with the implementation of the Uniform Civil Code, it may reduce the scope of freedom of religion. The Uniform Civil Code should encourage the equal division of income and property between the legal heirs, regardless of gender. Births and deaths should be compulsorily registered. There is a need to enact a separate provision in case of marriage and divorce, in order to eradicate complex marital issues like polygamy and triple talaq. The minimum age for marriage among different communities should be uniform to cope up with problems like child marriages. Furthermore, while ensuring uniformity relating to the provisions of divorce, maintenance and remarriage, sentiments of any community should not be hurt. On this note, a progressive and broad-minded outlook is needed which should be considered by a committee of eminent jurists. Matters being sensitive in nature, should be dealt with detailed suggestions from the religious group concerned, as this would constitute as a   better  approach. . Society will take time to accept such major policies and rules. And these factors make it difficult to come up with a uniform set of rules.

VII. CONCLUSION AND WAY FORWARD

Uniform Civil Code will be an ideal safeguard for its citizen’s rights and this social transformation from diverse personal laws to uniformity should be a gradual process. It is the fact that how a nation accommodates its own diversity and is not merely gender equality. The term uniform denotes that all communities should be governed on the same principles of gender and human justice without any bias with regard to religious dogma and political considerations. It will lead to progressive legislation as in the state of Goa which practices the Uniform Civil Code since 1867, when it was under the Portuguese colonial rule. But for this, the government needs to take adequate steps towards increasing awareness among people about the importance of implementing a Uniform Civil Code and should be careful in its choices. The fact is that it is not violative of Article 25 of the Constitution and should be a new law and not a blend of personal laws. Religion and law are two different notions, which means that it will not curb their rights to practice or profess religion and people can still propagate their religion, despite the enactment of a Uniform Civil Code. The point is not only to protect minority or majority groups but, it is purely based on the principle to treat each and every citizen with dignity. Leaders should try to evolve a consensus instead of using it an emotive issue to gain political advantage. It will not divide people by religion but unite them by nationality, and people must understand that the time has come where the redundant laws need to be tweaked upon.  Secularism can be heightened and true equality and egalitarianism can  prosper.

*Third year student, B.Com.LL.B. (Hons.), Sastra University, [email protected].

[1] The Constitution (Forty – Second Amendment) Act, 1976.

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[2] India Const. art. 25.,Freedom of conscience and free profession, practice and propagation of religion:

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

[3] India Const. art. 26, Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right:

(a) To establish and maintain institutions for religious and charitable purposes;

(b) To manage its own affairs in matters of religion;

(c) To own and acquire movable and immovable property; and

(d) To administer such property in accordance with law.

 

[4] A shorter version of this article 'Uniform civil code: Why and why not' was published on July 10, 2017, at Governance Now. [https://www.governancenow.com/views/columns/uniform-civil-code-why-and-why-not].

 

[5] Shayara Bano vs. Union of India and Ors., (2017) 9 SCC 1.

[6] Mohammad Ahmed Khan vs. Shah Bano Begum., 1985 SCR (3) 844.

[7]  S. 125. Order for maintenance of wives, children and parents:

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or Explanation.- For the purposes of this Chapter,-

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

[8] Danial Latifi & Anr v. Union Of India, (2001) 7 S.C.C. 740, 742.

[9] Sarla Mudgal vs. Union of India., AIR 1995 SC 1531.

[10] John Vallamattom vs. Union of India., (2003) 6 SCC 611.

[11] Art. 14. Equality before law:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

[12] India Const. art. 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

[13] Indian Const.art.25.

[14] Shabnam Hashmi vs. Union of India., (2014) 4 SCC 1.

[15] M. Siddiq v. Mahant Suresh Das, M. Siddiq v. Mahant Suresh Das., (2019) SCC Online 1440.

[16] Id. At 5.

[17] S.R. Bommai vs. Union of India., 1994 AIR 1918.

 


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