This article is written by Pooja Arora, from ILS Law College, Pune and has been edited by Abanti Bose, from Amity University Kolkata, India. This is an article which deals with whether UCC in Goa and to what extent it has been successful.
Table of Contents
Introduction
India is a diverse country with different religions and customs. Religion has been an essential part of the country’s culture. Both religious secularism and tolerance coexist in India. The religious customs in the form of different personal laws co-existed with the core idea of secularism. However, the application of a uniform civil code has been an idea of the founding fathers of the Indian constitution who had the vision of separating the religion from the state and ensuring secularism in the true sense. UCC came forward as an important issue in the famous case of Shah Bano in 1985 where the Supreme Court recommended that a uniform civil code should be set up. Although the UCC is included as a directive principle of state policy and over the 73 years it has not been implemented in the whole of India. Due to the resistance on religious grounds, the government has been unable to fulfill this mandate. Goa is the only state in India with a uniform civil code that governs all the citizens alike despite their religion.
Uniform Civil Code
A uniform civil code is a common set of rules that govern the entire nation irrespective of their religion. It is envisioned in Article 44 Part IV of the Indian Constitution as a Directive Principles of State Policy (DPSP). According to Article 44, the state should aspire to apply a common uniform civil code of the citizens of India. Uniform civil code means replacing the personal laws of the country that govern things such as maintenance, marriage, adoption, succession, etc. The personal laws are based on the religious customs and beliefs of different religions and are therefore not consistent. The UCC aims to replace these fragmented laws and bring uniformity in the country. However, UCC is a DPSP and is not enforceable by courts. During the framing of the constitution in 1946 by the constituent assembly, there were two groups with divergent views on the UCC, one of them wanted to adopt it and the other one who was with the minority community felt that their personal laws would get abrogated by application of UCC. The idea of a uniform civil code was therefore only added as a one-liner in the DPSPs.
Personal laws in India
Personal laws are laws that apply only to a certain group of people based on their religion, caste, or faith. These laws are made based on the culture and beliefs of the particular group. There have been different personal laws governing marriage, succession, maintenance, and divorce in India since the colonial period. These were mainly framed for the Muslim and Hindu citizens.
Hindu personal law
The Hindu code which includes various acts governing marriage, succession, adoption maintenance, etc is the law that governs the Hindus in India. It applies to all Hindus in India and is also applicable to Sikhs, Jains, and Buddhists. The Hindu code is divided into 4 bills:
- The Hindu Marriage Act, 1955
- The Hindu Succession Act, 1956
- The Hindu Minority and Guardianship Act, 1956
- The Hindu Adoption and Maintenance Act, 1956
Muslim laws
The Muslim personal law is not codified per se, but it is largely based on religious texts. The Shariat law of 1937 largely governs the personal matters of all Muslims in India. Certain aspects of their religious texts are also recognized in the Dissolution of Muslim Marriages Act, 1939.
Christian marriages and divorces are governed by the Indian Christian Marriages Act, 1872 and the Indian Divorce Act, 1869, while Zoroastrians are subject to the Parsi Marriage and Divorce Act, 1936.
Uniform Civil Code in Goa
Goa is the only state where a uniform civil code is followed. After India annexed Goa in the year 1867, the existing Portuguese Civil Code, 1867 was not altered. It applies to all the Goans living in the state irrespective of their religion. This is an exception as no other state has adopted a common civil code.
- Marriages: the registration of marriages is made compulsory under the Goan Code so that the disputes which may arise can be resolved by the law. Consent of men and women is required before marriage. The Goan code allows for a prenuptial agreement which can alter the ratio of the distribution of assets.
The Special Marriage Act was enacted in India to govern the marriages of two people from different religions. This law is applicable throughout India and governs the divorce of such marriages as well. However, in Goa, this act applies differently. Muslim men whose marriages are registered do not have the right to polygamy in Goa. The property and wealth owned by each spouse are equally divided amongst the spouses during the course of the marriage. In the case of divorce, each spouse is entitled to half of the property and in the case of death of both the spouses, the property is equally divided amongst the surviving members.
The distribution of property amongst the heirs is equal. The male and female heirs both have the right to inherit the property and no distinction is made.
Secularism and Uniform Civil Code
The main opposition to adopting UCC is that it clashes with India’s secularism. Many believe that adopting the uniform civil code will lead to the domination of one religion.
India is a secular country. This means that there is no state religion and the state seeks to protect the freedom of religious beliefs of all the citizens. The preamble of the constitution states that India is a “secular democratic Republic”. It implicates that the state will be neutral while dealing with different religious matters. Article 25 and 26 of the constitution gives the right of freedom of religion to every person subject to public order, morality, and peace. Uniform civil code is not opposed to secularism and against articles 25 and 26. Article 44 basically is that the religion, their customs, their personal laws can prevail. Marriage, succession, and other matters related to the secular nature of the state. The purpose of uniform civil code is not to interfere with the customs and their tradition. The basic purpose behind it is equality, which should be given to each and every citizen of India. It would not cover the “matters of religion” and would only lay down a common civil code which will simplify the civil laws and ensure equality amongst all.
How far has the Uniform Civil Code been successful in Goa
The application of UCC in Goa may seem like a success but the uniformity of laws in Goa has not translated into equality in every aspect. Certain provisions of the Portuguese civil code applied on the basis of religion are not fully uniform.
The Report No. 21 titled as the “Protection of Institution of Marriage Bill 2012” of the Goa Law Commission (April 2009-March 2012) highlights the “concordata” which is the treaty signed in 1940 between the King of Portugal and the Pope, the Catholics takes away the civil jurisdiction of the court in the matters of separation, annulment of marriage. The High courts merely have the authority of conveying the decrees of the Canonical Courts to the Civil Registrars for recording the dissolution of marriage in the Marriage Register maintained by the Civil Registrar.
- Although the registration of marriage is made compulsory under the Act, the religious ceremony is given more importance and considered as marriage. The registration of marriage is only seen as a formality for most.
- Although polygamy is not allowed for registered Muslim marriages, bigamy is allowed for Hindu men under some circumstances under Codes of Usages and Customs of Gentile Hindus of Goa, if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30.
- The 1880 Code of Usages and Customs of Gentile Hindus gives civil effects to marriages according to religious rites. This code also allows the other non-Christians to follow their customs and rites within public order and morality. This code also permits adoption procedures to Hindus and not to other communities.
- The main aim to adopt UCC was for secularism and to separate the activities of state from religion, however, in Goa, there is no separation of church from state. The church law is followed for solemnizing marriages and the church has the authority to annul the marriage at the instance of one of the parties.
Should other States implement the Uniform Civil Code
The Supreme Court has announced Goa as a ‘shining example ‘ for uniform civil code. The founding fathers of the constitution envisioned a uniform code that shall govern the whole of India. The other states should try and adopt a uniform code like Goa which will ensure the basic principles such as equality and gender justice. This will ensure that the historical personal laws that are discriminatory towards women are no longer practiced.
The application of UCC ensures secularism by separating religion from areas such as marriage, succession, adoption, etc. The UCC will enable simplification and uniformity of laws in all states which will lead to smooth functioning and administration of the judiciary. The other states which are much larger and diverse in terms of customs than Goa should, keep in mind the interests of minorities while implementing the UCC. The state governments can take a piecemeal approach where they can introduce the changes in certain aspects of marriage, adoption, etc rather than bringing a drastic change.
Advantages of Uniform Civil Code
Applying a set of uniform laws that govern everyone has many advantages. Some of them are:
- The application of uniform laws amongst all citizens promotes the feeling of national integration as the same laws are applied to all the citizens and no exception is made in any matter.
- UCC will ensure the establishment of a secular society as the matters relating to marriage, adoption, etc will be detached from religion completely.
- The personal laws in India are divergent and often confusing, so. This can be eliminated by applying one set of laws to all citizens. It will also reduce the overlapping of different laws. It will also help in the efficient administration of laws by the judiciary.
- Under a uniform civil code, all the citizens are treated equally. Under the present personal laws, matters relating to marriages, adoption are treated differently under the respective personal laws, this is inconsistent with Article 14 which ensures equality before the law.
- The personal laws are largely patriarchal and discriminatory against women. The implementation of UCC will ensure that more women get liberty and equality. It will no longer bind them to religious and cultural beliefs.
- UCC will help in reducing vote bank politics that form the major part of India’s political system. It is used by every political party during the election to gain votes.
Conclusion
The uniform civil code in goa is an exception. Adopting the Uniform Civil code for the whole of India is a drastic measure that needs to be taken with great care. There are many challenges that come in the way of implementing UCC. The interests of the minorities should be taken into account. The UCC in Goa was successful due to the Portuguese laws already prevailing for several years. Even though there are many advantages of adopting a uniform civil code, there is a lot of misinformation amongst the religious groups about the UCC as a tool for domination of one religion. The uniform laws in one state do not guarantee its success in all the other states, given the religious and cultural diversities that exist in different states. The uniformity of laws does not fully guarantee equality amongst all. Even though goa has adopted a civil code common for all the people, it is still not uniform and has certain exceptions for different religions. By and large, all communities are included in the Goan code but it cannot be said as the perfect model which India can apply.
References
- https://thecompanion.in/goas-experiencesof-uccshow-things-not-go-well/
- https://www.jagranjosh.com/general-knowledge/why-uniform-civil-code-is-necessary-for-india-1477037384-1
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