In this article, Darrelene Dias pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses Arguments against Uniform Civil Code.
Introduction
The Uniform Civil Code is mentioned in the Article 44, Part IV of the Indian Constitution in the Directive Principles of State Policy. The Article states that the state shall endeavour to secure for the citizens a UCC throughout the territory of India.
Uniform Civil Code is an endeavour to replace personal laws which are enforced throughout India.
These personal laws are founded on various religious customs and scriptures which are interpreted by religious leaders. Uniform civil code tries to establish a common set of laws for people belonging to all communities. These laws cover laws related to marriage, divorce, inheritance, maintenance and adoption. Different personal laws (Codified and Uncodified) practised in India are discussed below.
- The Indian Christian Marriage Act of 1872 (applicable to whole of India except areas of erstwhile Travancore- Cochin, Manipur and Jammu & Kashmir),
- Anand Marriage Act, 1909 (For Sikh marriages),
- Cochin Christian Civil Marriage Act of 1920 (applicable for Travancore-Cochin areas),
- Muslim Personal Law (Shariat) Application Act, 1937 (making Shariat laws applicable to Indian Muslims),
- The Parsi Marriage and Divorce Act, 1937
- Hindu Marriage Act, 1955 (applicable to not merely Hindus, Buddhists and Jains but also to any person who is not a Muslim, Christian, Parsi or Jew, and who is not governed by any other law). Hindu Widow Remarriage Act of 1856, Hindu Inheritance (Removal of Disabilities) Act, 1928, which is a significant move and paved way for Hindu woman’s right to property. Hindu Women’s Right to Property Act of 1937 was a significant step for assuring rights to women.
- Married Women’s Property Act of 1923
The Muslim religious and social bodies have primarily opposed any move towards the implementation of Uniform Civil Code. These are some arguments which are placed against the implementation of Uniform Civil Code.
Arguments against Uniform Civil Code
Secularist perspective
It is argued that implementing the Uniform Civil Code would destroy the secularism and diversity which is the cornerstone of India’s rich heritage. Implementation of the Uniform Civil Code will distort the right to practice and profess one’s religion freely.
This would also mean that the authority held by various religious leaders would be taken.
It is believed that individuals should be given the right to choose freely on how they would like to make important life decisions like marriage and inheritance.
Feminist perspective
It is very important to have the female voice representative while forming and implementing the Uniform civil code. It has been argued that while drafting the policy and implementation of the act the female voice from every community and class have to be considered. The crux of UCC is women’s rights. However, taking into consideration too many different standpoints may get complex. It has also been argued that a female voice will not be considered at all which causes more risk to the implementation of UCC.
Hence, implementation of UCC in a country like India will not be possible.
Religious perspective
Most Indian customs and practices are guided by their personal laws. This gives a sense of Identity. By the implementation of the UCC there will be a sense of loss to the religious and cultural sentiment of individuals. Hence, they will lose their sense of identity.
Customs like the dowry system is seen as “laxmi” or good fortune to the family the girl gets married into. Customs are not seen as detrimental to individuals. Hence, implementing the UCC is also seen as un-necessary and intrusion of the government in the private life or the family life of Indians.
It has been argued that individuals who wish to follow laws that are not religious in nature are free to do so but personal laws which are already implemented shouldn’t be meddled with.
Economic perspective
Many personal laws are economic in nature. As mentioned in the Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. Here, in cases like the Shah Bano case in the landmark decision held that a Muslim woman could obtain maintenance under Section 125 of the Code of Criminal Procedure. Uniform civil code will have to be implemented keeping in mind gender equality. If the woman is supposed to bring up the children the husband could pay for maintenance of the children. It is difficult to implement and draft a law that is fair to all gender.
Political perspective
India has a majority of Hindu population. With about 79.8% population of Hindus, it is believed that while drafting the Uniform Civil code it will cater to its majority.
The arguments against implementation of UCC are that the bill will be a guise to challenge the faith of the Non-Hindu population. It is also argued that it will propagate the very core of political influences which has a stronghold in India. These influences will try to spread the Hindu faith across India, making India, a complete “Hindu” nation. As idealized by many political parties. To quote Senior Congress leader Jairam Ramesh,
“The demand for UCC is a cloak for imposing Hindu Personal Law, which is actually deeply anti-women and has been made progressively more and more pro-women,”
Conclusion
The idea to implement a uniform civil code is to empower women to live out of their religious personal laws. The UCC is also implemented to do away with many archaic laws. If the UCC is implemented then India can match up to the cultural and social standards of developing countries that empower women.
Most importantly India needs a mindset change and an attitude change. It starts from empowering our women to live lives the way they choose to live. We have to encourage women to compete with men in their careers, encourage women to educate themselves and encourage households with shared responsibilities.
It is also important to educate children on the ideas of a progressive world. The education system and the media play a crucial role in the shaping of young minds. It is important to develop an education system based on modern ideas yet deep rooted in our traditional beliefs. The implementation of the policies will only happen when people and community see a need for it to happen. This need can be developed once the individual what is right and wrong. This mismatch between the existence of good laws and their actual implementation is itself a commentary on state capacity in India.
But despite many rightful laws in place, non-constitutional decision-making bodies like the khap panchayats and kangaroo courts have a greater influence on the implementation of personal laws. The khap panchyats overrule law implementation at the village level. While the social media like radio and newspaper try their best to influence their modern ideas at the village level the final say will always be of the ‘elders’.
The government has to keep a check on the khap panchayat and define their limitations and extent to implementing laws. The khaps are also functional due to stronger political forces which are difficult to do away with.
Uniform Civil Code should also cater to the rights of LGBT community. It should include the rights of marriage and re-marriage, property, adoption rights etc. By including the LGBT community the UCC moves beyond the religious personal laws making it inclusive in nature.
It is also important to understand that India is a country that has diverse cultures and religions. Religions are also a basis for identity and it is very difficult to do away with religious identity. If people sense that the state is taking away their sense of identity then there will be a rise in tension between the people and the state. The 2016 report on caste-based discrimination by the UN special rapporteur on minority issues noted that caste-affected groups continue to suffer exclusion and dehumanization.
Hence, the government needs to focus on two things, developing the education system and using the social media platform to bring out a mindset change in adults.
It is very important to shape the young minds of tomorrow. The ideas shared in textbooks should be liberal in nature. The teachers should encourage both young girls and boys to see themselves as equals. Every individual should be given enough opportunities to pursue their careers. The schools should focus on methodology and teaching mechanisms when dealing with young boys and girl at different age group. The staff and teachers should be sensitized to this need.
The government can use social media to give out strong messages. The government can tie up with local NGO’s to conducting short programs and activities for adults during village panchayat meetings. The NGO volunteers can perform skits based on the need for cultural change. During such interventions, the idea of Uniform Civil Code could be introduced. Adults literacy and cultural change go hand in hand.
India has to be ready both socially and culturally to accept this change. Only when we are culturally ready to implement the Uniform Civil Code law will the law be implemented in the rightful nature.
References:
3.http://educoncours.com/2017/07/20/uniform-civil-code/
4.http://www.opindia.com/2016/10/this-is-why-bodies-like-muslim-personal-law-board-oppose-uniform-civil-code/
5.http://www.indiaonlinepages.com/population/hindu-population-in-india.html
6.http://www.thehindu.com/opinion/lead/good-laws-bad-implementation/article5639799.ece
7.https://www.hrw.org/world-report/2017/country-chapters/india
