This article is written by Akshaya Chintala from Symbiosis Law School, Hyderabad. The article analyses the system of a uniform civil code and the importance of the act to be implemented in India.
Table of Contents
Introduction
The Uniform Civil Code as conceptualised under Article 44 of the Constitution. The term Uniform Civil Code and its meaning itself came under intense analysis during the Constituent Assembly Debates. A uniform civil code tries to administer the same set of secular civil laws to govern all people, even those belonging to different religions and regions justly. It abandons the right of citizens to be governed under different personal laws based on their religion or ethnicity. The uniform civil code covers the entire body of laws that govern rights relating to property and personal matters like marriage, divorce, maintenance, adoption, and inheritance. Article 44 of the Constitution of India spells out the concept of a Uniform Civil Code, laying down that:
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Sixty years after independence, the uniform civil code enshrined in Article 44 of the Constitution, is still under Directive Principles. The Directive Principles of State Policy contained in Part IV (Art. 36 – 51), as the name suggests are mere directions to the State. They need not be mandatorily followed and are not enforceable by the Court. They are purely positive obligations on the State which would aid in good governance. Most directive principles continue to remain pious doctrines rather than the law of the land. We are governed by the rule of law. Law is the supreme and the most fundamental aspect of our constitution which talks about the rights conferred to an individual. It talks about ‘equality before the law’ and ‘equal protection of law’. The main problem started with the question that if the makers of the Constitution had an intention for a Uniform Civil Code to be enforceable in India, then why did they have to make it a part of the Directive Principles of State Policy.
Personal laws in India
The demand for a uniform civil code has acquired communal nuance which has overshadowed the intrinsic merits of the proposal. India unlike other nations is an amalgamation of diverse cultures and consist of people who follow their own distinct faiths, religions, customs and traditions. ‘Uniform Civil Code,’ once uttered opens up a Pandora’s Box and a plethora of emotions. The nation either starts whimpering or bursts into hysterical jubilation. There are many aspects to this issue mainly a few being, political, social or religious. Politically the nation is divided into two factions, on the one hand, the BJP and RSS that strongly crusades for the Uniform Civil Code and on the other hand the Congress, which though it has been in power for over forty years has shockingly failed to implement anything as such. Socially, the common masses that fluctuate from one point to another, are unsure of the benefits of a system in a diverse polity that is India. Religiously, the division between the majority Hindus and the minorities dominated by the Muslims is always a factor to be worried about.
The Indian judiciary has time and again through various judgments directed the parliament to look upon the implementation of a common uniform civil code. The landmark case with regards to uniform civil code was where the first of the many observations were made in the case of Mohammad Ahmed Khan v. Shah Bano Begum (1985) popularly known as the Shah Bano case.
In brief, the facts of this case dealt with a frugal Muslim woman, Shah Bano Begum who was divorced by giving triple talaq by her husband. She thereafter claimed for her maintenance from her husband under Section 125 of the Code of Criminal Procedure. The Supreme Court held that the Muslim woman had a right to get maintenance from her husband under Section 125. According to Article 44 of the Constitution, Chief Justice of India Y.V. Chandrachud observed that,
“A common civil code will help the cause of national integration by removing disparate loyalties to the law which have conflicting ideologies.”
The aftermath of this decision was one of widespread shock, which led to political agitations, strikes and meetings. It seemed that this decision was ahead of its time. Rajiv Gandhi, the then Prime Minister of our country, instead of lauding the Apex Court for its forward outlook, submitted to the political appeasement of the minority Muslims. His party overturned the verdict in Parliament by enacting the Muslim Women (Right to Protection on Divorce) Act, 1986, which downsized the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. The reason given was that the SupremeCourt purely made a passing comment, an obiter dictum that was not binding in any way. Personal laws should not be tampered with unless the people themselves demanded it from within. A golden opportunity for reformation was lost, and Shah Bano’s bravery did not yield the hoped results.
Why UCC is not followed
- The Indian Constitution seeks and aims to create a uniform civil code for its people. Harmony, harmony, fair treatment of all before the law, fair penalty or punishment for all, secular rule in a secular country, gender equality, justice for all, etc. are definitely admirable ideals that should be achieved through the Universal Civil Code. These may be perfect goals for a developing nation of great diversity, heterogeneity and potential, such as India. While it is worth appreciating the spirit and purpose behind “one nation one rule,” the task was never easy.
- Also, Former Law Minister M Veerappa Moily in 2011 had clearly stated that his Government (the erstwhile Congress Government) will not touch the issue of uniform civil code as it would involve changes in the personal laws of all the people, especially the minority communities. It was Prime Minister Jawaharlal Nehru who had first put forward the need for a uniform law during his tenure but he was only successful in including it in the Directive Principles of the Indian Constitution. The Hindu Code Bill in the 1950s was brought forward to bring uniformity with regard to customs, practices and legal aspects of personal matters. But, this also faced severe protests and had to be scrapped in 1956.
- However, according to the present BJP Government, the same laws must apply to one and all. The present Government during electioneering in April 2014 had clearly mentioned the need for a uniform civil code in its manifesto, which stated that gender equality and protection of the rights of women in India are possible only when the country adopts a uniform civil code and hence there is the need to draft such a one which will incorporate the best traditions and blend them with the modern times. Prime Minister Narendra Modi had said that his Government will make efforts to formulate a uniform civil code, but that does not mean that all the citizens will come under the Hindu code. He also stated that there are several provisions in the Hindu code which are not necessary and need reforms. It is unnecessary to keep the 18th-century laws in the 21st century.
Famous countries that follow UCC
Canada is a common location for U.S. borrowers for a variety of reasons (NAFTA proximity), including their implementation of the Personal Property Protection Act (PPSA). The PPSA is based on the ideals of the UCC and has been adopted in all provinces except Quebec. In India too, Goa is the only state in India which has a uniform civil code. The Goa Family Law is the set of civil laws, originally the Portuguese Civil Code, continued to be implemented after its annexation in 1961.
Implementation of UCC in India- A boon or bane
India is a sovereign, socialist, secular, democratic, republic. This means that the State does not have a religion of its own. The UCC, therefore, has been interpreted by its opponents to mean a common state religion, and thus it goes against the soul of the preamble and the freedom of religion as mentioned above. They are mistaken in that the state though irreligious is not anti-religious. The UCC will not hinder man’s belief. It will not interfere in the mundane monotonous activities of day-to-day life. The doctrine of secularism as accepted in other country states like America and Europe is one that completely does non-interference in matters of religion. It has to be understood that these countries have undergone a completely different evolutionary process consisting of renaissance, reformation and enlightenment.
Quite opposite to that, India has not gone through these stages and thus the responsibility lies on the State to interfere in the matters of religion so as to remove the impediments in the governance of the State. In India, there exists a concept of “positive secularism”. The onus lies with the state to ensure that religion is not an impediment to the overall progress of the nation. Thus the UCC is not opposed to secularism and will not violate Article 25, 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, the law can regulate them.
According to eminent historian Romila Thapar. “Religion impinges on every human rights in the civil law — whether its birth, death, marriage, divorce, — the religions have laws on all of these,” and Secularising India has to begin with a uniform civil code that ensures equal rights to all citizens without exceptions so making India secular necessarily means demarcating religion out of our social institutions. India still does not have a Uniform Civil Code because, If a uniform civil code is made, a single set of laws will apply to all the citizens irrespective of one’s religion, especially with regard to marriage, divorce, adoption, property, maintenance and inheritance, etc. The minorities feel that this will be tantamount to interference in their personal matters. Successive Central Governments had never made an attempt to touch this sensitive issue.
Suggestion
To really implement the Uniform Civil Code in India, one suggestion would be that new uniform family law should or could be created by Parliament for all Indians totally unworkable in practice. Formally enforced legal uniformity can hardly lead to the situation-specific justice that the systems of dharma, Nyaya and Shariat in their idealistic ambitions all sought and seek to achieve. If the British could enact a few uniform personal laws in India like Guardians and Wards Act, 1890; Indian Succession Act, 1925 and Child Marriage Restraint Act, 1929, why the present government of India representing all the religious communities cannot enact a uniform civil code for all the Indians. So the government of India should take initiative for enacting a uniform civil code, which should contain the best elements of different civil laws of the various religious communities of the country and thus fulfil its positive obligations imposed upon it by Article 44 of the Constitution of India. The government must prepare a good environment for Uniform Civil Code by explaining the contents and significance of Article 44. It should take steps and find out means to fight obscurantists who oppose the move of the Uniform Civil Code. A conservative section of the citizen must be made to understand the utility of uniformity of laws so that they do not stand in the way of implementation of Article 44 of the Constitution.
Conclusion
There is a high need of UCC in India as India can be a secular country in the true sense of the word only when all communities belonging to various religions like Hindu, Islam, Christianity etc. follow a single set of laws, thereby uniting diverse sections of people. India can be a united country only if the same laws related to inheritance, marriage, family, land etc. are applicable to all citizens, irrespective of the caste, creed, communities they belong to. This way all Indians will be treated equally. The age-old religious customs and personal laws of our country are usually in favour of men, especially Muslim men. A uniform civil code will help in improving the conditions of women in India. It will help in bringing changes in the age-old traditions that have no relevance in today’s modern society, where women should be given equal rights and should be treated fairly. A uniform civil code in India will ensure not division on the basis of religion but unity by creating a feeling of nationality.
References
- https://www.governancenow.com/views/columns/uniform-civil-code-why-and-why-not.
- Times Now News.com. 2019. Uniform Civil Code by 2020? Modi government is likely to table UCC Bill in Parliament in December 2019, October 9.
- Nair, P. 2019. It’s Time For Uniform Civil Code. This Will Help Muslims Break Taboos: Seshadri Chari, Outlook, August 29. [https://www.outlookindia.com/magazine/story/india-news-its-time-for-uniform-civil-code-this-will-help-muslims-break-taboos-seshadri-chari/302081].
- Chavan, N. and Kidwai, Q. J. 2006. Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code. Hope India Publications.
- https://www.thehindu.com/news/national/what-is-debate-on-uniform-civil-code-all-about/article24903560.ece.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
