Constitutional validity of Uniform civil code

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Introduction

 India is land of diversity with 6 main religions existing and around 19,500 languages spoken. It is famously said that, “culture of India changes after every half kilometer.” Every religion has its own set of customs and rituals which is followed. In Hindus, normally it is not allowed to eat non veg food during Ganesh Chaturthi whereas in Christians, it is allowed to consume meat and alcohol during Christmas. The above statements are made to differentiate between the different norms followed during two different festivals. Despite of so much diversity the women have to suffer a lot to live a life with dignity and respect irrespective of the religion they belong. They are becoming victims in the hands of society socially, politically, economically and morally. There are a number of cases related to violation of rights of women which are recorded but not much is done by the administration to curb the number of cases. The constitution of India guarantee fundamental rights which is mentioned in part 3 and is available to citizens of India irrespective of caste, class, creed, religion, gender etc and enforceable in the court of law in case of violation of any right. The constitution of India directs the parliament to not enact any law which is in contravention to the fundamental rights and in discrimination on the mentioned grounds. The parliament has the power to amend any part of the constitution of India except the basic structure. Justice Sikri held that along with supremacy of constitution, republican and democratic form of government, separation of powers, federal character of constitution, secular character of the constitution is also a part of basic structure of the constitution held in this case. [1]Secularism means equal respect to all the religions in India with respect to practice and propagation of their religion in the case of. Every religion has a freedom to manage his/her as per article 26 of the constitution of India which means practicing the religion but it has to be subject to public order, health and morality. Every religion has the freedom to make laws with respect to marriage, divorce, adoption, guardianship etc these laws are known as personal laws of religion[2]. Option is available to citizens either to bound by the personal laws for each religion or to opt for secular laws which is available to all the citizens irrespective of caste or religion for instance a male Hindu can adopt a child either by the provision of Hindu adoption and maintenance act 1956 or by the provisions of guardians and wards act 1872. There is no hard and fast rule as such that he/she has to bound by the religious law only or secular law only. Uniform civil code is mentioned under article 44 of the Indian constitution which states that “every state shall endeavor to its citizen uniform civil code throughout the territory of India” this means that it is the duty of state to ensure there be equal laws for all citizens through out the country. It is important to note that uniform civil code is a part of directive principles of state policy in the Indian constitution which means that the state has to take into consideration while implementing any law or while formulating any policy. Unlike fundamental rights, directive principles is not enforceable in the court in case of its violation because these are just directions which the state has to keep in mind.

Impact of uniform civil code

 India under British rule has witnessed many amendments made by British in laws of India such as Indian penal code, contract act etc. the main motive behind implementing laws was to end discrimination in punishment while depriving away all the religious, cultural aspects. It was seen that law related to contact was very similar in comparison to law of contract which existed in England. This is because the law itself was formulated by Britishers in India and that is the reason why law of contract and many other laws were similar to law of contract in England. The laws related to every religion in India was not amended or formulated by the Britishers this is because there were many religions in India so each and every religion has its own religious norms in matter related to marriage, divorce, succession, adoption, guardianship etc and in England there was primarily Christianity which existed so that’s why the British couldn’t amend the personal laws of India. They were strongly in agreement of such above mentioned matters should be governed as per the laws of each religion. Article 44 of the constitution of India was added with an intention that when our country will be ready to accept it and the social acceptance of UCC could be made. It doesn’t look like that our country is ready to accept UCC because there are different religion in India having their personal laws which is very different from each other. On one hand there is only one marriage permitted in Hindu law subject to death and divorce of the husband/wife but in Muslim law more than one marriage is allowed so implementation of uniform civil code will definitely bring unrest among the people of various religions because then there will be only one uniform law applicable on different religions. The first situation of where Uniform civil code was in question in which Mohamed Ahmed khan, in the form on triple talaq gave talaq to shah bano begum after talaq till the period of Iddat he was entitled to provide maintenance and not after that. The adverse impact of this provision was that husband can defeat the claim of the wife for maintenance by pronouncing triple talaq to her.[3] In order to remove this anomalous situation, parliament introduced a new criminal procedure 1973 in which under section 125 of the criminal procedure code it was stated that the wife could seek maintenance until she gets remarried to another person and is unable to maintain herself. There was a huge opposition from the Muslim members in the parliament as well outside the parliament because according to them there is an intervention in their personal laws by the government which is unacceptable for them. In order to control the huge opposition section 127 was included which provided for cancellation of order of maintenance on payment of sum which under any customary or personal law applicable to the parties was payable on such divorce.

In the above case, we can clearly see that there was a conflict between personal laws and secular case because as soon as there was intervention with the religious law we saw huge opposition from public. In this case, if we keep the aspect of religion aside the main aspect is violation of rights of women as she became the victim as section 127 will deny her maintenance on the payment of sum during divorce. According to me, there shouldn’t be any interference in personal laws but if it is in conflict with violation of rights of women then it has been struck down by the authorities. There was another instance when the personal laws came in conflict with human rights and then the judiciary to a brave step to struck it down. In Muslim personal law, there are two types of talaq namely talaq-i-sunnat and talaq-i-biddat. In talaq-i-biddat, the talaq can be given by husband to wife in triple declaration of talaq during period of purity either in one sentence or in three. The other form is a single irrevocable pronouncement of divorce made in the period of Tuhur or even otherwise. This form of talaq is prohibited in Shias. Many Islamic countries have also banned this form of talaq Shayra bano was married to Rizwan ahmed. In 2016, he divorced her through the form of triple talaq. She filed a writ petition before the supreme court of India pleading to hold practice of talaq e biddat as unconstitutional as it is against article 14,15,21,25 of the Indian constitution. The majority judgment held that triple talaq is unconstitutional under article 14 of Indian constitution read will article 13(1). an action that is arbitrary must also involve negation of equality and determined as triple talaq provides that the material tie can be broken capriciously without any attempt at reconciliation so as to save it” this arbitrariness violates article 14.[4] Implementation of uniform civil code will lead to gender justice and integrity of nation because then the laws for all the religions will be same and every one will be treated equally especially women. In Parsi law, a widow wife can adopt a child on the fourth day of her husband’s death for purpose of performing of certain religious ceremonies. Whereas in Hindu law, the widow wife can adopt a child by following all the requirements mentioned in section 5 to 7 of the Hindu adoption and maintenance act 1956. The form of adoption is totally different in the above two religions whereas in the concept of adoption is secular and the purpose of the same is to get an heir who can carry the adopter’s name[5]

Constitutional assembly debates on uniform civil code

 In order to understand the essence and thinking of any constitutional provision we refer to the constitutional assembly debates while the provision was debated in the assembly. This helps us to understand the thinking of the members of parliament and reason behind implementing or not implementing a particular law. Similarly, the debate on uniform civil code was one of the most heated one. The entire debate was divided into ideologies firstly members who affirmed the utilization of legal power to alter the religious customs and promote equal respect for all religion and unity among people of all religions and secondly constitution should not interfere with the essence of nation and should not put restrictions on the religion. These are some arguments which were put forward by members of parliament while uniform civil code was in debate:

  • Mr KM Munshi believed that there should be some limitations on religion in order to bring togetherness and integration the basis of civic national identity.
  • Mr Kazi Karimuddin believed that the laws related to Muslims are an integral part of Muslim law and he has not seen a single individual who is demanding for an alteration in the personal laws of Muslims and in case, if there is an individual then that person is not a Muslim. In case, the protection of the rights of minorities has to be taken into consideration then it should not be case that people have no religion and if minorities believe in such a way then personal laws deserve protection.
  • Mr Hasrat Mohani believed that anyone has no right to intervene with the religious laws. Specifically, Muslim law. There are 3 main aspects of personal laws is namely, religion, language which have not been created by parliament. Laws related to divorce, marriage, and inheritance have been in picture due to quran as its mentioned there. If anyone tries to intervene with personal laws then its consequence will be very fatal. People belonging to Muslim religion will not accept any intervention in their religious laws and they will have to face opposition.
  • Mr Naziruddin Ahmad believes that the approval from the community of people has to obtained who will be affected by the implementation of uniform civil code. Further he went on to say that there will be a time in the future when there will be uniformity in the personal laws of every religion but this time has not come. The authority which is in the hands of the state to make uniformity in personal laws is before time. Power shouldn’t be in the hands of the state with respect to personal laws.
  • Dr Bhimrao Ambedkar believed that the state has no duty to interfere with the religious laws. There is no need to be aggressive on the fact that state has the power and they will utilize this power which is in contravention to the personal laws of every religion including Muslims.
  • Sir B N Rau, the constitutional advisor to the constitution of India believed that uniform civil code is a part of directive principles which is just direction to the state to make laws and directive principles have least educative power.

[6]

Impact of uniform civil code on fundamental rights

Fundamental rights are very important part of the Indian constitution because this provision protects the civil rights of the citizens of India. If there is any violation of any fundamental rights then that person whose right is violated can approach the courts. Equality before law and equal protection before law, freedom of speech and expression, religious and cultural freedom, freedom to form assembly, practice religion and right of constitutional remedies in the form of writs. This means that everyone is equal in the eyes of law be it king or a slave. Our country has mainly six religions and also secularism was added in the constitution through 42nd amendment 1976. There is freedom to propagate religion mentioned from article 25 to 28 which provides freedom to practice and profess religion. Due to the freedom to practice and profess religion the personal laws such as Hindu marriage act 1955, Hindu succession act 1956, Hindu adoption and maintenance act etc. the word if custom permits is really a significant term because on one side law’s support is seen to be significant but on the other hand it is permitting people to follow their own customary practices by adding the term if custom permits. This brings us to a conclusion that any provision of the law will be side lined if it is against the customary practice of any religion. Article 14 prohibits class legislation but reasonable classification is allowed but it paved the way for making personal laws as per one’s whims and fancies under the grab of cultural freedoms given under Art.25-28. It draws a conflicting opinion that under one guaranteed freedom, we are allowed to frame and regulate our personal laws at the same time leading to conflicts to the other fundamental right guaranteed in Articles 14-15. Therefore it is a high time to judge what is reasonable classification? I strongly feel that under the grip of religious culture and customs framing personal law in such a manner keeping the female gender to suppression and torture is clear cut violation of our fundamental right as guaranteed under Article 14 and again keeping those laws beyond judicial review is abhorrent.


Every religion or community may be at liberty to preserve their most essential integral part of their custom. But it should not extend to complete area covering it under propagation of their religion by encroaching upon with one’s fundamental rights. Article 25 though provides fundamental freedom to practice and propagate one’s religion however that should not go against the concepts of equality and dignity which are fundamental rights and the courts do have the power to adjudicate practices which are against the fundamental rights or not. the marriage with second wife will not automatically end the ties with first wife just by mere conversion from one religion to another emphasized on the enforcement of uniform civil code in India and it also emphasized an instance when laws of different religions were in contravention to one another. Under Hindu law marriage there should not be more than one marriage at a time and in Muslim laws more than one marriage is allowed. In Hindu marriage act 1955, if the person marries more than once at the same time he will be held liable under section 494 of the Indian penal code 1860 which is bigamy means more than one marriage at same time whereas it will not attract the punishment when it comes to Muslim law because as the custom of Muslim law allows more than one marriage. Under Hindu law adoption is recognized but this is not case in Muslim law.[7]

Conclusion

 In the end i would like to conclude by saying that the time has arrived where we will have to bring uniformity in personal laws without thinking about religious discrimination. Women have suffered a lot due to non-uniformity in personal laws as we have seen in shah bano case and also shayra bano case and the judiciary did a commendable job to give priority to the rights of women and I feel that human rights should be given a high priority as compared to any religious norm. uniform civil code is just a part of directory principle provided in the constitution. Time has come to make this directory principle into legislative law but keeping in mind the religious laws of every religion and then making a common code which will be favorable to almost everyone and there shouldn’t be bias for any religion. One country one uniform legislation will be more effective as compared to one country multiple legislations.


[1] Keshavanand Bharti Vs State of kerela and ano 4 SCC 225; AIR 1973 SC 1461

[2] State of Rajasthan And Ors. v. Vijay Shanti Educational Trust, RLW 2003 (4)

[3] Mohd. Ahmed Khan v. Shah Bano Begum [1985 SCALE 767 = 1985 SCR 844 = 1985 SCC 556 = AIR 1985 SC 945]

[4] Shayra Bano vs union of india and Ors 2017 9 SCC

[5] Bal gangadhar tilak vs shriniwas pandit (1915) 17 BOMLR 527

[6] What did the constituent assembly say on the uniform civil code available at https://www.theleaflet.in/what-did-the-constituent-assembly-say-on-the-uniform-civil-code/ (Visited on 18th July 2021)

[7] Sarla Mudgal vs Union of India 1995 SC 1531

Author: Rachit Singh

Editor: Kanishka VaishSenior Editor, LexLife India.

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