Uniform Civil Code: A Detailed Analysis by – (1) Mansi Rajput, (2) Ranjeeta & (3) Virpartap

“Uniform Civil Code: A Detailed Analysis”

Authored by – (1) Mansi Rajput,

(2) Ranjeeta & (3) Virpartap

ABSTRACT

Uniform Civil Code (UCC) also known as “One Nation- One Law” is defined in Indian Constitution under Article 44 of the Directive Principles of the State Policy which states that it is the duty of the State to secure Uniform Civil Code for the citizens throughout the country. It mainly aims to replace Personal Laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Personal Laws are distinguished from Public Law and it basically covers marriage, divorce, inheritance, adoption and maintenance. There are mainly three contextual issues which are related to Uniform Civil Code in Modern India. They are Legitimacy, Majority viz. Minority and Gender Equality. The main objective of this paper is to understand the detailed concept of Uniform Civil Code i.e. its beginning, contemporary developments, advantages, disadvantages and Role of Judiciary. Thus, at last in the paper, critical analysis and conclusion has been provided. In the process of making this paper, several journals, books and articles were referred and taken into consideration. Internet has also been a support in this process.

Keywords- Personal laws, State Policy, Marriage, Divorce, Inheritance, Gender Equality

INTRODUCTION

 India is a land in which various religions are followed like Hinduism, Islam, Buddhism, Jainism, Zoroastrianism, Christianity, Sikhism, etc, to name a few. India follows secularism. It is enshrined in our Constitution and was included in the preamble after the 42nd Amendment in 1976. The term „secular‟ means that the State will not follow any particular religion and neither will the people be discriminated because of the religion that they follow. This means that the people will be given the freedom to follow any religion. This is also enshrined in our Constitution as a fundamental right under Article 253 and 264 . In India, this term is extremely important because it is significant to note that the partition of India and Pakistan itself happened because of religion. Religion has forever been used as a weapon by the political institutions and has been a source of conflict since ages. The conflict in Israel is also because of religion. In India, different personal laws govern different religion. For example, the Hindus, Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act of 1956 in cases relating to marriage, divorce, maintenance, etc. The Christians are governed by the laws relating to Christianity and Muslims by the Islamic Law. These are three broad sects of personal laws in India - Hindu Law, Christian Laws and Islamic Law. Now the problem exists in the fact that there are differences and discrepancies within the personal laws. There is no uniformity[1]. Also, there has been instances where the personal laws denied the rights of women or did not even give them rights. To counter these shortcomings, the Uniform Civil Code can be enacted. The Uniform Civil Code means a uniform personal law for all citizens of the country. This code will replace the existing religious personal laws in India and have a uniform law that will cater to all the citizens, irrespective of their religion. This has been envisaged by the makers of our Constitution under Article 44. But it has been strongly opposed because it is considered violative of Article 25 of the Constitution. This paper aims to approach the concept of Uniform Civil Code in a more practical and pragmatic way to ensure that it can be properly implemented in India and to see if it is even suitable for a country like India. Its Legal Dimensions are kept in mind.

Uniform Civil Code (UCC), defined in Indian Constitution under Article 44 of the Directive Principles of the State Policy states that it is the duty of the state to secure Uniform Civil Code for the residents throughout the region of India. In other words, it stands for “One Nation- One Law”, irrespective of any religion. Uniform Civil Code mainly aims to replace personal laws dependent on the scriptures and customs of each significant religious community in India with typical arrangements of rules governing every citizen[2]. Personal laws are distinguished from public law and it basically covers marriage, divorce, inheritance, adoption and maintenance.

WHY IN NEWS?

Uniform Civil Code has always been a topic of controversy in news. The Uniform Civil Code Bill has been introduced two times as Private Member Bill in past few months in Rajya Sabha but the opposition urged Chairman to block it[3]. Thus, it is now expected that the government might introduce the Bill in the next Parliamentary Session.

BEGINNINGS

1. 1835: 2nd Law Commission Report

The 2nd Law Commission Report of 1835 stressed the need for uniformity in codification of Indian Laws relating to crimes, evidences and contracts but recommended that codification should not extend to matters like the personal laws of the Hindus and Muslims which derived their authority from their respective religions.

2. 1858: Queen Victoria’s Proclamation

In 1858, Queen Victoria in her proclamation promised the people of India for absolute non-interference in religious matters.

UNIFORM CIVIL CODE AND THE PERSONAL LAWS

The women are considered inferior in most of the personal matters as compared to men, especially when it comes to the discussion of the topic of the matrimony or the succession, adoption or even the inheritance. Under the Hindu Law specifically, in the year 1955 and 1996, the Hindu women did not enjoy equal rights along with the Hindu men be it anything or any matter. Before 1955 polygamy was prevalent among the Hindus. The Hindu women could not hold any property as its absolute owner except in the case of Stridhan. She had only limited estate which was passed onto the legal last full heirs of the male owner called revisionary on her death. She owned a limited interest, in the sense that whenever an issue came up for the desertion of the property and mortgaging or selling the property, she could not do it on her own.

When it came to the matter of adoption a Hindu women did not have the right to adopt a child on her own. She could not be natural guardian of her children during the life of her husband. These examples are illustrative enough to show the patriarchal nature of the Indian society. Even though the Hindu law has been codified, certain discriminatory provisions still exist even today. For example a Hindu woman is not a coparcener in Hindu coparceners except in a few states like Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently she is not entitled to the share in the coparcenary. Thus it is oblivion to the fact that the codification of personal laws of Hindus has not succeeded completely in eradicating the gender inequality. When it comes to discussing about the Muslim Law, in the Pre Islamic Arabia, the women enjoyed a secondary status because since then it has been a patriarchy since then. The women since then were considered secondary to men. The advent of Islam has contributed much when it comes to the deterioration of the Muslim women and the escalation of their problems. The Holy Quran gives equal rights to men and women and places women in a respectable position. However, there are certain aspects in Islam that render the position of Muslim women especially the wives insecure and inferior. In Islam, a man is allowed to marry four times whereas the women cannot and if they do they are treated as unchaste and impure. Women are not even given the right to divorce their husbands, when particularly the method of divorcing the wife by the husband by pronouncing triple Talaq is highly discriminatory. This is inspite of the message given in the Holy Quran. This has been held void5 and unlawful, recently in the Allahabad High court judgement.

UNIFORM CIVIL CODE AND THE INDIAN CONSTITUTION

The main problem lies in the fact that if the makers of Constitution had intended for a uniform Civil code to be enforced in India, then they should not have placed it under Article 44 of the Constitution as a part of the Directive Principles of the State Policy. The Directive Principles of State Policy contained in the 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 merely positive obligations on the State which will help in good governance. The Preamble of the Indian Constitution clearly states that India is a Secular, Democratic, Republic. This means that there is no State religion. A secular state shall not discriminate against anyone on the ground of religion. A religion is only concerned with relation of man with God. It means that religion should not be interfering with the mundane life of an individual. The process of secularisation is intimately connected with the goal of uniform Civil Code like a cause and effect. In the case of S.R. Bommai v. Union of India[4], as per the Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities and can be regulated by the State by enacting a law. In India, there exists a concept of positive secularism as distinguished from the doctrine of secularism accepted by the United States and the European States i.e. there is a wall of separation between the religion and the state. In India, positive secularism separates spiritualism with individual fath. the reason is that America and the European States went through the stages of renaissance, reformation and enlightenment and thus they can enact a law stating that State shall not interfere with the religion. On the contrary, India has not undergone any kind of renaissance or reformation 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 The reason why a country like India cannot undergo a renaissance is very clear. The chances are that the conflicts, instead of decreasing may go on increasing and showing reverse effects on the laws that are made. For instance, a practice or a tradition in one's personal law may be acceptable but on the other hand, it may not be acceptable to the people of other personal laws. So, when the traditions will be in practice, the nature of the conflict will transform itself from general differences to hardcore animosity. People find it difficult to accept or adapt to certain changes and when it comes to a society like India where religion defines the way of life, people connect themselves with their religion instead of understanding that it is the religion which is made by human beings and that human beings are not made by the religion. This thought finds itself in the graveyard because some people still believe in burning. There needs to be a uniform law which governs and regulate the behaviour of people of all the religions and not any particular section of the society. The Preamble of the Indian Constitution resolves to constitute a "Secular" Democratic Republic. This means that there is no state religion or in other words the state does not operate on any one particular religion and shall not discriminate on the ground of religion. Article 25 and 26 of the Constitution of India as enforceable fundamental rights guarantee freedom of religion and freedom to manage religious affairs. At the same time Article 44 which is not enforceable in a court of Law states that the state shall endeavour to secure a uniform civil code in India. Uniform civil Code is the uniform method or the uniform law that governs the people as a uniform law and does not discriminate on the basis of any religion or faith.

“Failure of the Indian State to provide a Uniform Civil Code, consistent with its democratic

secular and socialist declarations, further illustrates the modern state’s accommodation of the

traditional interests of a patriarchal society”.

EFFORTS TOWARDS UNIFORM CIVIL CODE

Many efforts were made towards the implementation of Uniform Civil Code.

1. Special Marriage Act, 1954

The Special Marriage Act of 1954 provides for civil marriage for any citizen irrespective of religion, thus, permitting any Indian to have their marriage outside the boundaries of any religious personal law.

2. Shah Bano Case1of 1985

In this case[5], Shah Bano was refused her claim for maintenance. The Supreme Court ruled in her favour under Section 125[6] of Code of Criminal Procedure (CrPC), which applied to all citizens the order for maintenance of wives, children and parents. The Supreme Court further recommended that the long pending Uniform Civil Code finally enacted.

SUPREME COURT’s KEY OBSERVATIONS IN SHAH BANO CASE

The Supreme Court, in Shah Bano case, observed that it is the matter of regret that Article 44 has remained a dead letter. Uniform Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is probably going to bell the cat by making unwarranted concessions on this issue. It is the state which is charged with the duty of securing a Uniform Civil Code and unquestionably, it has the legislative competence to do so. There are difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning. Piecemeal attempts of courts to bridge the gap between personal laws cannot take the plea of a common civil code. Thus, justice to all is a far more satisfactory way of dispensing justice than justice from case to case.

AFTERMATH OF SHAH BANO CASE

After the 1984 Anti-Sikh riots, most of the minorities in India, with Muslims being the largest, feared attacks on their identity and felt the need to safeguard their culture. According to them, the judiciary recommending the Uniform Civil Code was evidence that Hindu values would be imposed over every Indian. The worst effect of this case was seen in the succumbing of the Rajiv Gandhi Government, when it passed a law nullifying the judgment through the Muslim Women (Protection of Rights in Divorce) Act, 1986, which made Section 125 of CrPC, non-operable for Muslim Women. At that time, it was strongly condemned by the Hindu Right, the Hindu Left, Muslim Liberals and Women’s Organizations.

CONTEMPORARY DEVELOPMENTS

1. “Neither necessary nor desirable”: 21st Law Commission

Most nations are currently moving towards acknowledgement of distinction, and the simple presence of contrast doesn’t suggest discrimination however is characteristic of hearty majority rule government.

2. “Rise of the Right”: BJP

Hindu nationalists view this issue in the light of concepts enshrined in the Hindu Code, which they say, is secular and equal to both sexes. The Bhartiya Janta Party (BJP) was the first party in the country to promise the implementation of Uniform Civil Code if it were to be elected into power.

3. “Gender Equality”: Women’s Movement

UCC’s importance for gender equality cannot be denied and in a country like India, where women’s rights are daily contested and often denied, this is of special significance.

ADVANTAGES OF UNIFORM CIVIL CODE

1. Provide Equal Status to all Citizens

A secular democratic republic in order to provide equal status to its citizens must have a common civil and personal law irrespective of their religion, class, caste, gender, etc.

2. Promote Gender Parity

It is generally observed that in almost all religions men are granted top preferential status in the matters of succession and inheritance which results in discrimination towards women. Thus, the Uniform Civil Code will promote gender equality and will bring both men and woman at par.

3. Accommodate the aspirations of the young population

The social attitude and aspiration of the young population is shaped by universal and global principles of equality, humanity and modernity. Thus, the enactment of Uniform Civil Code will help in utilizing their full potential towards nation building.

4. Support National Integration

All citizens are treated equally before the court of law whether it is criminal laws or other civil laws (except Personal Laws). Thus, the implementation of Uniform Civil Code will grant equal set of personal laws to all, resulting in the end of politicization of issues of the discrimination or concessions or on the other hand exceptional benefits appreciated by a specific community on the basis of their specific religious personal laws.

5. Bypass the contentious issue of reform of existing Personal Laws

The existing personal laws of all religions are based upon the upper-class patriarchal notions of the society. Thus, the codification and implementation of the Uniform Civil Code will destroy the sanctity of the patriarchal orthodox people or will oppose it profusely.

DISADVANTAGES OF UNIFORM CIVIL CODE

1. Practical difficulties due to diversity in India

It is difficult to come up with a uniform set of rules for personal issues like marriage due to tremendous diverse culture in India across the religions, sects, castes, states, etc.

2. Perception of Uniform Civil Code as encroachment on religious freedom

Many communities, especially the minority communities believe that the Uniform Civil Code is an encroachment on their right to religious freedom. According to them, the Uniform Civil Code will neglect their traditions and impose rules which will be mainly influenced by the majority religious communities.

3. Interference of State in Personal Matter

Articles 25 to 28 of Indian Constitution provide the Right to Freedom of religion. But the scope of the freedom of religion will get reduced with the codification of Uniform Civil Code.

4. Sensitive and Tough Task

The implementation of Uniform Civil Code is a sensitive and tough task as it will bring many changes like issuing judicial pronouncements that ensures gender equality, adopting expansive interpretations on marriage, maintenance, adoption and succession with a view that one community should ensure benefits from others. The task is very demanding and the government would be expected to be sensitive and unbiased while dealing with the minority and majority communities otherwise it would turn out to be more disastrous in the form of riots and communal violence.

5. Time not yet suitable for this reform

In consideration to the major opposition from Muslim community in India, there are issues related to controversies over beef, saffronization of schools and colleges, love jihad, etc. Thus, a sufficient time should be given to instill confidence in the community; otherwise, they will become more insecure and vulnerable to get attracted towards extremist ideologies.

ROLE OF JUDICIARY

In the case of ABC v The State (NCT of Delhi), the court managed with the issue of guardianship of a Christian unwed mother without the consent of the child’s father. While ruling the case in the woman’s favour, the court commented-“It would be inverse for us to underscore that our Directive Principles imagine the presence of aUniform Civil Code, but this remains an unaddressed constitutional expectation” Similarly, in the recent case of Jose Paulo Coutinho v Maria Luiza, the Supreme Court held that- “While the authors of the Constitution in Article 44 in Part IV managing with the Directive Principles of State Policy had trusted and expected that the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard”.

CRITICAL ANALYSIS

With repeated exhortations by the judiciary, a strong women’s movement and a majoritarian government there is a better chance of it getting through now. All India Muslim Personal Law Board (AIMPLB) is clear that it shall oppose any attempts to adopt a Uniform Civil Code, yet, the recent Triple Talaq Act found approval in most places, including Muslim Women, through clerics still protest. Thus, in an age when citizen’s rights are of paramount significance, and the admitted position is to move towards a society which respects human rights irrespective of caste, religion, region and gender, an imperative to legislate on a Uniform Civil Code cannot be denied.

CONCLUSION & SUGGESTIONS

The Uniform Civil Code is not just a matter of gender justice, it is also a question of how a nation accommodates its own diversity.In India, freedom of religion exists with other rights like equality and non-discrimination. Instead of reaching in indiscriminately or leaving cultures entirely to themselves, India's liberal multiculturalism strikes a balance. It has been more ready to reform majority practices, while offering protections to vulnerable individuals within minority groups. Is there a better way for India to negotiate this? The common view is that the Western democracies are a template for liberalism. But how do the US and France conceptualise law and religious freedom, the balance between majority and minority group rights? What do Canada and the UK do? But the problem is that India cannot have the Western Countries[7] as a model because the conditions are not similar. Most of the western countries, despite claiming to be secular, tend to show a bias towards Christianity and the Middle East Countries clearly follow Islamic Law. Even as we push for a Uniform Civil Code, we should know that law cannot exist too far apart from social norms. Without social support, or state capacities to implement our own principles, we risk pushing people into seeking alternative community justice, like sharia courts or khap panchayats. A common civil code will have to be careful in its choices. Then there remains the question of whether it should be obligatory, erasing all personal law, or whether it should allow Indians the option of choosing to live under their own religious umbrellas, if they prefer. Either way, it is time that we outline our ideals and disagreements, in the pursuit of a dream common civil code. In the seven decades since the Constitution was enacted, there has been no sincere effort to even start such a dialogue. It is also clear that Uniform Civil Code is not violative of Article 25 and 26 of the Constitution. It should rather be a new law and not the blend of personal laws. The problem in blending personal laws is that there is every chance for a bias to arise. The Parliament should International Journal of Pure and Applied Mathematics Special Issue 4691 introduce a new code similar to the Special Marriage Act of 1954 which does not extend any favours or bias towards any religion. What the people must understand is that religion and laws are two different concepts. This is because the Constitution allows the people to follow their religion which will continue despite the enactment of a uniform code. The uniform code will nowhere curb their right to follow or profess their religion. For example, the religious scriptures prescribe punishments for crimes but the Indian Penal Code, 1860 is the only penal laws that are followed in India. Thus, it is high time that people start viewing religion and law as two different concepts and focus on the empowerment of all class of people. There is an urgent need to bring in uniform laws in India.

[1] Art. 25. Freedom of conscience and free profession, practice and propagation of religion: (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

[2] Agnes, Flavia. “The Supreme Court, the Media, and the Uniform Civil Code Debate in India.” The Crisis of Secularism in India, 2006, pp. 294–315.

[3] Art. 26. Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right: (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law

[4] 1994 AIR 1918.

[5] Shayara Bano vs Union Of India And Ors., W.P. (C) No. 118 of 2016.

[6] S. 125. Order for maintenance of wives, children and parents: (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or Explanation.- For the purposes of this Chapter,- (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority; (b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

[7] Shetreet, Shimon, and Hiram E. Chodosh. Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse. Oxford University Press, 2015.