Is UCC Need of the Hour?

Introduction

India is a secular state, with no particular religion of the state and it is a home to heterogeneous cultures be it ethnically, religiously or linguistically which are governed by their own personal laws . There are different codes for different communities like Hindus are governed by Hindu Marriage Act, Succession Act and Muslims and Christians are governed by their personal laws. But these myriad of personal laws and diversities blend to form an extremely coruscating but arduous to handle populace. And to overcome this difficulty and to combat the dilemmas that arise as a result of different laws on the same issue in different codes. India needs a Uniform Civil Code as it will being uniformity and will help to end uncertainty by eradicating all the existing repressive evils.[1]

What is Uniform Civil Code?

Uniform Civil Code basically refers to a compendium of personal laws to govern all the citizens irrespective of the religion they belong to. It proposes to replace the personal laws based on the scriptures and customs of each religious community  as almost every aspect of law is codified and is uniform except matrimonial laws . Uniform Civil Code is envisaged under Article 44 of the constitution which provides that the state shall endeavor to secure for all citizens a Uniform Civil Code throughout the territory of India But as uniform Civil Code is one of the Directive Principles of State Policy ,it is not guaranteed by the constitution though it is the vision that it  seeks to achieve  . [2]

Historical Evolution of Uniform Civil Code and Judicial Pronouncements

The founding fathers of the constitution by incorporating Article 44 in the constitution which provide for the establishment of Uniform Civil Code , mooted to have one law for all the citizens of the country . But as in India religion has not only served as the foundation of the culture of India but even had enormous effect on Indian politics and society . Here religion is a way of life and it is imperative part of Indians associate themselves with religion because of how deeply religion is rooted in Indian land thus implementation of Uniform Civil Code has always been considered a herculean task for the government.

Uniform Civil Code is still a contentious issue and is still struggling for its place in the space created by the problem between individual rights and group rights , on how to reconcile the contrasting positions of inviolability that each set of right claims for itself .

The movement of Uniform Civil Code splurged around the beginning of twentieth century , when in 1940 during a national political debate , a demand for such a code was made by the national planning committee that was appointed by Congress .

Even during 1952-55 , during the codification of Hindu laws ,UCC was intensely debated and minute intricacies were paid heed to so as to incorporate even the gender discriminatory practices that were prevalent . Hindu customs are developed on the lines of patriarchy and hegemony of men as no privileges or rights were given to daughters or widows . Thus after a series of debates to reform personal laws, the Hindu laws were codified in to form separate acts – Hindu Marriage Act , Succession Act , Minority and Guardianship and Adoption  and Maintenance Act . And the discussion to reform and codify Muslim law was postponed until the community demanded from itself so that tranquility can be maintained within the country .  

After codification of Hindu laws in 1956 , the personal laws were applied in two ways – the codified Hindu law and uncodified Muslims personal laws for the Muslims . And even the conflict between secular and religious authorities over Uniform Civil Code was subsided , until the 1985 Shah Bano case . And this case was politicized and remained in the limelight and it led to discussions and debates on implementation of Uniform Civil Code . The time period of 1985-86 publicized Uniform Civil Code [3].

Shah Bano case[4]

Shah Bano challenged the constitutional validity of personal law regarding divorce , in particular triple talaq , in the Supreme court which opened the floodgates to what is arguably the most contentious and complex issue of the time i.e. uniform Civil Code which overrides personal and religious laws . Shah Bano v. Union of India case has become political benchmark with the focus on identity politics .

In this case Md Ahmed gave triple talaq to his wife Shah Bano and even denied to give maintenance to her . Matter went to district court and she was given right to alimony and after that in High Court , Shah Bano appeal to High Court and she got the right to maintenance but Ahmed appealed in Supreme Court that he has done the  required according to Muslim law and he is not liable to give any further compensation and he moved to Supreme Court but Supreme Court presented the scintillating judgement and decided in favour of Shah Bano that she is entitled under Criminal Procedure , Section 125 , the husband is liable for maintenance of his wife , children and parents . But as this case was in conflict with rules pf Quran , so in 1986 parliament enact Muslim Women ( Right to Protection on divorce ) in 1986 so as to protect the right of Muslim women at the time of divorce and in this case Supreme Court for the first time decided to pass Uniform Civil Code bill in 1985.

Danial Latifi v. Union of India[5]

In this case, the advocate of Shah Bano challenged the constitutional validity of Muslim Women (Right to Protection on Divorce) Act , 1860 on the grounds that this law was discriminatory and it deprive Muslim women the right that is provided to other women belonging to other religion under Section 125 of Criminal Procedure i.e. the right to get maintenance and thus this law violates  Article 14 of the constitution which guarantees equality . And it was even contended that this law violates Article 21 of the constitution which guarantees Right to Life.

But in this case Supreme Court upheld the constitutionality of Muslim Women ( Right to Protection on Divorce) Act , 1986 and said that Muslim husband need to fulfill all the needs of the wife in advance and thus Muslim wives were entitled to maintenance even beyond the iddat period which tend to create the balance between the Section 125 of Criminal Procedure and Muslim law.

Sarla Mudgal v. Union of India[6]

In this case the husband converted himself into Muslim religion from Hinduism and practiced polygamy. As such there was no punishment for this act but court said that such marriage of Hindu husband after converting into Islam is violation of justice , equity and good conscience and court held such marriage to be void under Section 494 of IPC while interpreting it through the wider perspective.

In this case the personal laws of Hindus, Muslims and Uniform Civil Code were touched and the judgement favored the enactment of Uniform Civil Code.

Supreme court held that Uniform Civil Code is not opposed to secularism and thus will not violate Art 25 and 26 . Thus this case also highlighted the need to adopt uniform Civil Code as there will be always a loophole because different faiths had different beliefs and naturally due to diverse practices of communities , there will be a conflict .

Shayra Bano case[7]

The case is more popularly known by its moniker ‘ The Triple talaq case’ which invalidated the practice of instant talaq through the 3:2 majority . In this case Shayra Bano along with four ladies who were suffering the same plight as they all were victims of triple talaq moved to Supreme Court , and challenged the heinous practice of triple talaq but not the Quran .

In this case the Supreme court bench ruled out the practice of triple talaq in 2017 and declared it illegal . The bench comprised of judges of five different religions and court held triple talaq , halala and polygamy to be illegal even though Muslim law is not codified through 3:2 majority and even held that all these practices violate the fundamental rights provided under Article 14, 15 and 21 of the Constitution of India .

This case paved the way towards Uniform Civil Code as triple talaq violated the rights of Muslim women and they were not treated at par with women of other religions and thus court intervened and it was decided to be illegal as some practices violated the fundamental rights  beside the fact that Muslim laws are not codified .

Through different judicial decisions , the Judiciary has supported Uniform Civil Code and tried to narrow down the gap between general provisions of law and the personal law. Like Justice Chinnappa Reddy rightly quoted,” that the time has now come for a complete reform of the law of marriage and makes a Uniform law applicable to all people irrespective of religion , caste. Now it is the time for the legislature to take initiative in this direction. Though Judiciary has always favored Uniform Civil Code but still there is a long way to go so as for smooth acceptance and then functioning of Uniform Civil Code in India where religion is highly sensitive subject.

How Uniform Civil Code could be an asset for India?

Uniform Civil Code could prove to be an asset for India and it could be the possible solution to combat religious issues, discrimination etc. First of all, Uniform Civil Code is needed so as to curb the discrimination that exists because of diverse personal laws based on religion and sexes . How in one law some rights are provided in a particular case but not according to other . Thus by implementing Uniform Civil Code it will help to achieve equality and justice in the court of law and all will be treated equally irrespective of their gender , religion which is one of the right guaranteed by the constitution .

If Uniform Civil Code is implemented in India , it will lead to simplification of the legal system as all sects will be covered under one umbrella and it will lead to easier monitoring and implementation of civil laws . This will surely reduce the burden on the Judiciary as the overlapping of laws will be eliminated and many chaos and confusion could single handedly be solved by adoption of Uniform Civil Code as people need to follow one code only .

India has been known for its diversity .And it has also been seen that there arises conflict with different cultures because of existence of different practices , customs . So Uniform Civil Code will promote national integrity as no more conflict will be caused because of different personal law . And India will emerge as an example of Unity in Diversity .[8]

Uniform Civil Code will even help to hold free and fair elections as today also religious issues are seen as opportunity to seek votes  as the code can put a stoppage on the prevailing vote bank politics as now religion will not help  politicians to gather votes in name of religion and the merit would be the sole criteria and this will pave the way for India to achieve heights and emerge as global power because politicians governing the country play an imperative role to shape the country’s status .[9]

Example of Goa

Goa is the only state in India that has Uniform Civil Code and has emerged as shining example regardless of religion, gender, caste. It has common family law . Marriages in Goa are seen as a contract between two people and they are governed by Special Marriage Act , 1951 . Even the Muslim men do not have the right to polygamy in Goa and the property and wealth owned is divided equally at the time of divorce or death . Even the property is inherited by the children irrespective of the gender.  Thus other states should also try to adopt a uniform code like Goa that will ensure the basic principles such as equality and gender justice and dream envisioned by our founding fathers could become a reality . The Uniform Civil Code with the passage of time has become the constitutional mandate so that it can be ensured that historical personal laws do not discriminate on the basis of gender.

 And now it is the high time to read the personal laws in the light of philosophy contained in Article 44 so that uniformity and simplification of laws could be achieved but there exist several obstacles in the road to achieve the goal.[10]

Challenges

Critics of Uniform Civil Code argue that it is not possible and even feasible to implement uniform Civil Code in India in view of Article 15, 25 and 26 of the constitution . Even some political parties oppose its implementation by claiming it to be against democratic nature of the country. India requires several amendments that need to be made so that every citizen could adapt it easily as belief of any community cannot be altered just by enactment of any new legislation by the state as the rituals practiced like mehr, concept of marriage are important and moreover have sentiments attached to it. Even the minorities in the country fear that with the implementation of Uniform Civil Code their culture would be affected and it could get lost behind the veil of uniform code as who will pay heed to the personal laws of minorities when there exist majorities like Hinduism.[11]

Conclusion

The implementation of Article 44 so as to have common civil code in India still does not seem to be a soon ending struggle as it has been glorified as well as criticized. As critics consider it to be in vain and strongly contradict all the merits of the code but it can be observed and appreciated how the countries like USA which is a home to entirely different races – white , black and even brown have adopted Civil Code and how it has yielded results and there are no such conflicts or chaos that have arisen .Even in Goa all the different cultures have adopted the code and they are not facing any kind of discrepancy . And it has surely helped the Judiciary to slack the burden as confusion created because of overlapping of laws has been reduced.

As for India immeasurable diversity is the reality but heterogeneity in law cannot be seen as prudent and is even not desirable . Its high time that India adopts Uniform Civil Code so that there is uniformity in laws , and the scope of arbitrariness could be narrowed down. Justice YV Chandrachud once remarked how Uniform Civil Code will help in strengthening the national cause of integration by removing conflicts[12] . It will aid to end the internal war in the country. But India cannot implement Uniform Civil Code in one go otherwise it would result in havoc because of resentment due to fear of the minorities. The piecemeal strategy could be adopted like introducing the changes in certain aspects first like marriage, adoption etc. rather bringing a drastic change at once. Even the awareness is to be created that Uniform Civil Code does not aim at the banishment of all religions except Hinduism but it focuses on picking best from all the religions and then embrace it.

Thus, to conclude the importance of Uniform Civil Code for India, here are the words of Dr B.R. 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 inequities, discriminations and other things which conflict with one fundamental rights”[13]. This statement explicitly speaks of his commitment towards having Uniform Civil Code and how it can bring fundamental change in personal dimension of India. He was the staunch supporter of uniform Civil Code and how it could prove to be a symbol of progressive nation that nation bas moved ahead of caste and religion by supporting orthodox nature and bloom as the exhibit of power.[14]

Author: Pranjali Aggarwal


[1] Uniform Civil Code: Need of the Hour available at https://seclpp.wordpress.com/2019/07/23/uniform-civil-code-need-of-the-hour last visited on 7 April, 2021

[2] Uniform Civil Code: Need of an Hour or not available at https://calr.in/uniform-civil-code-need-of-an-hour-or-not/ last visited on 10 April,2021

[3] Part III – Politics of Uniform Civil Code available at https://www.constitutionofindia.net/ last visited on 11 April,2021

[4] 1985 AIR 945.

[5] 2001 SC SCC 740

[6] 1995 AIR 1531.

[7] Shayra Bano vs Union Of India Writ Petition © No 118 of 2016.

[8] Implementation of Uniform Civil Code does not mean imposition of Hindu Code on all citizens of the country”(The Economic times, 6 May 2014)< https://economictimes.indiatimes.com/news/politics-and-nation/implementation-of-uniform-civil-code-does-not-mean-imposition-of-hindu-code-on-all-citizens-of-the-country-narendra-modi/articleshow/34741160.cms> accessed on 10 April,2021

[9] Uniform Civil Code: Boon to our Societies : Merits available at http://www.legalserviceindia.com/legal/article-1720-uniform-civil-code-boon-to-our-society-merits.html Last visited on 13 April,2021

[10] Uniform Civil Code in Goa available at http://www.legalservicesindia.com/article/2157/Uniform-Civil-Code-in-Goa.html last visited on 13 April,2021

[11] Varun Chakraborty, International Journal of Scientific and Engineer Research, Volume 9 Issue 1, January 2018 and A Kumar, ‘ Uniform Civil Code: Challenges and Constraints’ , Satyam Law International ( October 12,2012)

[12] Ibid

[13] Ibid

[14] Relevance of Uniform Civil Code in contemporary India available at https://www.google.com/amp/lawtimesjournal.in/relevance-of-uniform-civil-code-in-contemporary-india/%3famp last visited on 15 April,2021

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