civil code

In this article, Ashok Samal of HNLU gives arguments against Implementation of Uniform Civil Code.

Article 44 of the Constitution of India talks about the implementation of a Uniform Civil Code throughout the territory of India. Implementing Uniform Civil Code would mean that all the personal religious laws shall be kept at bay and a uniform personal law governing areas of marriage, divorce, inheritance etc. shall be formulated. This law shall not keep in its ambit personal law regarding any religion or culture and it shall be the same for all persons irrespective of their caste, creed or colour.

This is probably the most debated topic in recent days and is full of controversies too. While a large number of citizens favour it, a similar number of people are showing their general discomfort with the idea. The supporters of the move argue vehemently by saying that the presence of different personal laws creates a clouded atmosphere of confusion and is also hard to follow. The people who are against it point out several flaws with the concept and thus present various arguments against it. We will be discussing some of these arguments today.

UCC in the Constitution and other Laws

Article 44 in Part IV of the Constitution of India says that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

The article being placed in the Directive Principles of State Policy, is not binding or mandatorily enforceable on the government or the people. Major opposition to the idea was the reason behind this Article being placed in the DPSP’s.

The slow implementation of UCC has started from the period of British India, when Lord William Bentick tried to suppress unjust religious practices such as the tradition of Sati Pratha.

Some of the laws that were passed to bring about religious stability and gender equality are as follows:-

  • Indian Succession Act, 1865,
  • The Indian Marriage Act, 1864,
  • Hindu Widow Remarriage Act, 1856,
  • Married Women’s Property Act of 1923,
  • Hindu Inheritance (Removal of Disabilities) Act, 1928.

The UCC tries to bring in about a reform of the same sort by neutralising the redundant provisions of each personal law and replace them with more time compliant laws.

Practices being dispute

Some practices that are found contrary to humanitarian laws are liable to be restricted once UCC is implemented. These laws are mostly of the minority class. But the idea behind UCC is to take out the best from all the personal laws and integrate it to formulate one uniform law that will be enforceable on all and will be welcome by all as it won’t dispute anyone’s law and every minority would be able to absorb in the new law. Before the implementation of laws like Hindu Widow Remarriage Act of 1856, Married Women’s Property Act of 1923 and the Hindu Inheritance (Removal of Disabilities) Act, 1928, hindu women had close to no rights, so the passing of these laws was a significant move and permitted Hindu woman the right to property. The legislature intends to follow the same suit and do the same for all personal laws and formulate an uniform law for all of the citizens of India that would guarantee their rights in accordance with modern times.

The law commission has recently taken out a survey comprising of a detailed questionnaire for the people to answer which puts forth several questions on specific personal laws and their place in the modern society. The questionnaire in detail can be accessed here from this link.

These are some of the practices of personal laws that might not find any place in UCC.

  • ‘Talaq-e-bidat’ – In this kind of divorce a muslim man can easily divorce his wife by saying the word ‘talaq’ more than one time in a single ‘tuhr’(a time period between two menstrual cycles) or in a period of tuhr after consummation.
  • Triple Talaq
  • ‘Nikah halala’ is an example of another religious practice ostensibly based on the Quran. Shah Bano’s plea in the landmark judgment of Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844) describes it as:

“Further, once a woman has been divorced, her husband is not permitted take her back as his wife even if he had pronounced talaq under influence of any intoxicant, unless the woman undergoes nikah halala which involves her marriage with another man who subsequently divorces her so that her previous husband can re-marry her.”

Who are against UCC

Considering the background behind UCC and the issues it promises to resolve, those who have been opposing the idea are vocal about their opposition to the said amendment, saying that it is particularly unconstitutional and it takes away the cultural and religious rights of other minorities as well, which was promised to them by the founding fathers of the constitution.

  • Naga Community

The naga minority community is also reportedly upset by the implementation of UCC. The Nagaland Bar Association has markedly warned that the implementation of UCC would bring about clear trouble for the culture and dignity of the Naga people.

They, in a letter addressed to the Prime Minister stated that,

“It will cause social disorder, and if  a Uniform Civil Code is introduced covering the entire country, it shall cause so much hardship and social disorder to the Nagas as the personal and social life of the Nagas are quite distinct from the rest of people in the country.”

  • Few Political Parties

Some other political parties are also against the move of the implementation of UCC. They also support the minority issues by saying that it is a clear violation of the minority rights. They also put forth some very important points towards the impossibility of the implementation of UCC. Their main issue lies in the fact that its implementation of a country of diverse cultural diversity would be virtually impossible.

One of the continuing fears that lies with the muslim community at this moment is that the implementation of UCC is a deep rooted conspiracy directed at One of the prevailing fears associated with the UCC is that its implementation is a conspiracy aimed at setting aside the views of the minority communities and mandatorily imposing Hindu Personal Law on all citizens of the nation.

  • Muslim Community

About the questionnaire taken out by the law commission, there has been clear and evident rejection by the muslim community as the All India Muslim Personal Law Board completely disregarded the Law Commission’s questionnaire on the UCC and decided to boycott it.

All India Muslim Personal Law Board’s General Secretary Mr. Maulana Wali Rehmani said that,

“Uniform Civil Code is divisive and will lead to social unrest, and that It is against the spirit of the Constitution, which safeguards the right of citizens to practice their culture and religion,”.

The minorities view reflects the viewpoint that if need comes the Union Government can take out a public referendum on the issue of triple talaq and not just hold what the majority views are on the issue. The view is that it’s a part of muslim personal law and thus only Muslims shall be allowed to decide on the issue and not persons of every religion and community.

Arguments against the implementation of UCC

There are several arguments and standpoints against the implementation of a Uniform Civil Code. We will be discussing some of these arguments in vibrant detail here:-

A move against secularism.

In India, a country with diverse languages and traditions, expecting people of diverse culture and traditions to act on the same laws, based on a uniform system is somewhat preposterous.

The argument is based on the fact that India takes pride in its integrity within diversity. For maintaining diversity, we need to respect every minority communities personal choices and laws. That is what has led this nation to live in peace for such a long duration of time. The question that we need to ask ourselves is that whether the violation of personal laws is acceptable or not. We should also be practical while going about this issue. The impracticality of this issue lies in the fact that there are 14.2% Muslims in India and any move towards implementing UCC has received heavy opposition and criticism from their side. So it is an injustice to them by imposing majority Hindu views on them. A secular India is what the founding fathers promised when they formulated the Constitution and that is what the minority is demanding for. The government must respect the emotions of the minority population and thus decide on whether to infringe upon the personal law or not.

In the landmark judgment of S. R. Bommai v Union of India the honourable Supreme Court explained the concept of Secularism as,

“The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of the Indian political system.”

Infringement of personal religious laws.

The Muslim community vehemently opposes the move by the government and they all say that UCC would violate their personal laws gravely and would thus result in irreversible damage to their religion and the laws therein.

A strong argument which goes against the implementation of the Uniform Civil Code is, the very idea of assimilating all the personal laws into a uniform code will infringe the constituents of personal laws of most of the minority religion. 

The dilemma between good and bad

The minority community raises a very pertinent question that what is the place of the government to decide what laws need to be reformed and what laws fit perfectly within the skeleton of UCC.

It is actually a very diligent question that they raise. For the current government to fully implement a workable Uniform Civil Code, it is necessary that they formulate a code that is acceptable to all the communities, but that is best left to imagination as it is an impossible job. All the communities vehemently oppose any, however small it may be, interference with their personal laws and the government plans to completely dissolve it.

Besides, what laws the government would want to absolve, it would have to justify that those laws violate basic human rights and thus need to be abolished for proper governance.

The implementation of UCC would try to bring about a long needed change and an end to plenty of confusion that is mandatorily needed, but due to some of the disadvantages it offers, it has become hard to implement it, even though decades have passed since it was proposed for the first time.

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