This article has been written by Sonali Panwar, pursuing an Introductory Course: Legal Writing For Blogging, Paid Internships, Knowledge Management, Research and Editing Jobs from LawSikho. It has been edited by Ojuswi (Associate, LawSikho).
It has been published by Rachit Garg.
Table of Contents
Introduction
The concept of Directive Principles of State Policy (DPSP) is not a new one. Our Constituent Assembly borrowed the DPSPs from the Irish Constitution of 1937, which was borrowed by them from the Spanish Constitution. Chapter IV of the Constitution of India defines DPSP (Article 36-51). These are policies that the State needs to implement for the overall betterment of society.
Article 44 of Chapter IV states that “The State shall endeavour to secure the citizens a Uniform Civil Code (UCC) throughout the territory of India.” Though Article 37 says that the DPSPs shall not be enforceable by any court.
Currently, personal laws are governed by scriptures. A UCC will encode all those personal laws within itself which will then apply to all citizens uniformly, regardless of their personal religion.
The UCC has been in talks due to various observations done by the Supreme Court in cases like Sarla Mudgal & others. v. UOI, 1995, Mohd. Ahmed Khan v. Shah Bano Begum, 1985, and Ms. Jordan Diengdeh v. S.S. Chopra, 1985.
This article tries to bring forth the pros and cons that a UCC might bring and its effects thereof which have the power to change the social fabric of the entire country.
Birth of UCC in India
The first ever law commission in India was established in the year 1834. It was constituted under Section 53 of the Charter Act of 1833, with Lord Macaulay as its head. The non-Hindus and non-Muslims living in presidency areas had their laws. However, there were no laws for non-Hindus and non-Muslims living in the mofussil areas. This led to much uncertainty regarding the applicability of substantive civil laws to Anglo-Indians, Armenians, and Christians. The commission submitted the Lex Loci Report in which it recommended implementing substantive civil law of England as a uniform Act. This act was to apply to all non-Hindus and non-Muslims living in the mofussil area. Thus, this led to the birth of UCC in India.
Later due to the pressure from the Muslim elite, the Shariat law of 1937 was passed. Under this Act, all Indian Muslims are to be governed by Islamic Laws on succession and inheritance, marriage, adoption, divorce and maintenance.
Under the Hindu law committee during the 1948–1951 and 1951–1954 sessions, a talk for implementation of UCC took birth. Dr B. R. Ambedkar was a huge supporter of UCC and believed that only UCC will reform the Hindu society and provide protection to Muslim women, who have little to no protection under the Sharia Law. But after receiving a lot of criticism, a lesser version of the bill was passed in 1956. The Bill was divided into 4 acts namely, Hindu Marriage Act, 1955, Hindu Adoptions and Maintenance Act, 1956, Hindu Succession Act, 1956, and Hindu Minority and Guardianship Act, 1956.
Why is there a demand for UCC
We see rising demand from all parts of the country for a Uniform Civil Code. But it comes with a set of its own misconceptions. The foremost regarding personal laws is that they are invincible and aren’t subject to judicial review. Thus, people believe that UCC is the only option left to filter out all discriminatory practices in personal laws. The truth is all laws whether personal or criminal or financial are judicially reviewable and the judiciary can declare them potentially void if they encroach upon Fundamental Rights.
The only exception to the present rule of judicial review is that the laws aren’t codified under Indian law and are derived from a different legal system. Here, understanding Article 13 of the Constitution becomes essential. Article 13 of the Indian Constitution defines law and declares them void if they abridge, violate or contravenes any provision of Part III. Quite shockingly, in the judgement of State of Bombay v. Narasu Appa Mali,1952, the HC decided that personal laws are not “laws” within the meaning of Article 13 and thus won’t be included in the ambit of Fundamental Rights enshrined under Part III (Article 12-35) of the Constitution. What the judgement essentially does is to keep the personal laws how-so-much arbitrary or violate of fundamental rights away from judicial scrutiny. Other judgements where the Supreme Court held the same principle is Krishna Singh vs Mathura Ahir, 1980, Maharshi Avdesh case, 1994, and the Ahmedabad Women Action Group case of 1997. But, in 1996 a three-Judge SC bench in the case of Mudaliar held personal laws to be void if they are violative of fundamental rights. Still, the judgement of Narasu Appa Mali has not been overruled and the ghost of Narasu Appa still looms.
Another example is the Sharia law, this Islamic law is derived from the Islamic religious legal system and not from the Indian Constitution and thus is exempt from judicial review.
A similar thing was also quoted by Ambedkar, “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequalities, discriminations and other things, which conflict with our fundamental rights. It is, therefore, quite possible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the State.”
But we have seen time and again in landmark rulings such as that of Shamim Ara and Daniel Latifi how the legislation protected women’s rights under the Muslim Women (Protection of Rights on Divorce) Act, 1986 by interpreting the provisions of Protection of Women from Domestic Violence Act of 2005. In these cases, too, however, the stand taken by the SC is that it is not required for the personal laws to be in accordance with the principles enshrined in the Fundamental Rights of the Indian Constitution, which in itself is very alarming.
Problems we need to address before bringing UCC
In India, a uniform civil code relating to marriage, divorce, and succession, in reality, is not feasible because of its diversity of religions and their respective practices. However, the judiciary in recent times through judicial activism is trying to bring some uniformity among various personal laws.
The most famous judgment is that of Shah Bano. According to muslin personal law, the maintenance paid by the ex-husband is only during the period of iddat (waiting period after divorce) and Mehr. But the Supreme Court rejected this argument and directed Shah Bano’s husband to pay maintenance according to the laws applicable to other Indians.
Another example is that of the Triple Talaq case in 2002 it was held that the Muslim man does not have a unilateral right to divorce his wife by triple talaq. He is bound to prove the same in a court of law.
Hindu Marriage Act, 1955
According to this act, any text, rule or interpretation of Hindu law or any custom or any usage, either before the immediate commencement ceases to be in effect. But the ground reality of this is very different.
Many rural communities do not follow this Act, because they are more comfortable deciding such disputes based on their community traditions and practices. Even women from such communities prefer to go to the local panchayats rather than formal courts and the reasons could range from them being too alien, distant, and expensive to the time that the courts take to deliver judgements.
And as the issues of marriage, divorce and succession are civil, chances are that even after enacting a UCC, many tribal and rural communities may not follow it and continue with their own tribal or customary practices.
So, to bring uniformity and bring equality we need to solve the root problems. This could be solved either by spreading awareness or devising ways for the formal courts to deliver speedy remedies. The enormous delays and huge backlogs will force people to follow their customary practices for quick redressal of the problem with which they are familiar.
Similar to this, many personal laws have discriminatory practices. The Lata Mittal case of 1985 is a perfect example of this. She won a 20-year legal battle which led to Hindu daughters being given equal rights in ancestral property. Before, joint-heirship in parental property was not given to Hindu daughters.
Christian Divorce Act, 1869
This antiquated law was enacted in the colonial period. It was meant to serve the interests of British officials who had their legally wedded wives in England but were cohabiting with a local.
Here, Christian women could not obtain divorces on the grounds of adultery committed by their husbands alone it had to be coupled with cruelty, bestiality and sodomy. On the other hand, Christian husbands could file for divorce after declaring their wives’ adultresses. Due to pressure from Christian women, the Government amended the Christian Divorce Act of 1869.
The most famous ruling by the Supreme Court was done in Mrs Mary Roy Etc vs State of Kerala, 1986. Before this ruling, the Syrian Christians used to settle property inheritance as per the Travancore Succession Act, 1916 and Cochin Succession Act, 1921. According to these, a daughter was not entitled to the property of her intestate father except to the extent of 25% of their male siblings’ share or Rs 5,000 whichever was less. The Supreme Court ruled that Syrian Christian women were entitled to equal shares of their father’s property.
Parsi Marriage and Divorce Act, 1936
As per the personal laws of Parsis, Parsi daughters who married non-Parsi men lost their property rights and non-Parsi wives of Parsi husbands were entitled to only half of the husband’s property. They have also discussed widely this issue of inconsistency.
The main point of all these inconsistencies in all personal laws, regardless of religion, is that a woman is not equal to a man. And thus, they are discriminated against in marriage, inheritance and guardianship of children.
Another instance of the Supreme Court trying to bring uniformity in personal laws is that of a landmark judgment of 2014. A three-judge bench held that Muslim women had an equal right to legally adopt children like any other Indian citizen and the same could not be denied by the Muslim personal law.
Similarly, under the Hindu Minority and Guardianship Act of 1956 only the father was held as the natural guardian and the woman only when the child was born out of wedlock.
Many women-centric groups and individual leaders from different communities have been challenging the constitutional validity of this discriminatory aspect of personal laws in courts.
The main reason is the murderous attacks in cases of inter-caste, inter-religious, and inter-class marriages, and the threat of forced marriages. Along with all these, they have to deal with issues like adultery, bigamy, polygamy, divorce, custody of child/children, property and incest in their marital homes.
By arguing that practices such as triple talaq and polygamy impact adversely the right of a woman to a life of dignity, the Centre has raised the question of whether constitutional protection given to religious practices, under Article 25(1) of the Constitution, should extend even to those that are not in compliance with fundamental rights.
Such discriminatory provisions need to be addressed within their own personal laws first, as done in the cases of Shah Bano, 1985 and Sarla Mudgal Case, 1995 which are shining examples of bringing equality within the personal laws themselves.
Possible limiting effects of UCC
Even if we take Goa’s example, which has been hailed as a perfect example for the further implementation of UCC, it has certain limitations. The Portuguese Civil Code of 1867 has not been followed uniformly.
Also, it is important to reiterate that certain types of voluntary Uniform Civil Codes exist in India as the Guardians and Wards Act, Special Marriage Act, and the Indian Succession Act. Though these are not without limitations. They need to be more gender-neutral, less homophobic, and more progressive. Acts like this should be amended and brought more forcefully in order to implement them successfully.
Our system of Legal pluralism is not our limitation but a sign of strength and tolerance. As countries are becoming more global day by day, having parallel regimes co-existing in the family is not only essential but also integral.
India prides itself on its diversity under Article 25. It states that “subject to public order, morality and health, all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion.” The Constitution also talks about intelligible differentia under Article 14. So, it would be interesting to see how UCC will account for these.
Recommendations of the Law Commission
The Law Commission is of the view that Uniform Civil Code is “neither necessary nor desirable at this stage.” It is of the view that it is discrimination and not the difference that lies at the root of inequality. The Government of India 016 entrusted the law commission to give its opinion on UCC and in its 185-page consultation paper maintained that to preserve the cultural and social fabric of the nation we need to protect and preserve diversity and plurality.
They urged that the legislature should first consider guaranteeing equality ‘within communities’ between men and women, rather than ‘equality between’ communities.
It suggested that in this absence of consensus on UCC, the best way forward is to protect and preserve the diversity of personal laws. Along with this, they should balance all personal laws against the fundamental rights guaranteed in the Constitution.
Conclusion
The main aim of UCC is to bring gender equality and put an end to all discriminatory practices within all personal laws. So, lawmakers should make sure that women from all communities are given equal rights in matters of inheritance, adoption of children, divorce etc. Social awareness with substantial legislative amendments in laws along with exorcising the ghost of Narasu Appa Mali should be done. These measures will strengthen the impact and reach of Uniform Civil Code in India.
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