Uniform Civil Code: The Need of Hour

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Abstract

Part IV of the Indian constitution talks about Directive Principles of state policy, which although are not enforceable in a court of law but the government must take them into consideration while making laws. One such DPSP is the disputed Article 44 of the Indian Constitution which states that “the state shall endeavor to secure a uniform civil code for its citizen throughout the territory of India. Over the year, the Supreme Court of India and various High Courts has emphasized the need of UCC and directed the Government to work in this regard. India being a secular country, there are various challenges in the implementation of UCC. Article 25 of the Indian Constitution talks about the freedom of religion; however, this includes only the essential practices. Therefore, the Government can take into consideration the essential practices of various religions and make a uniform law for its citizen irrespective of religion, caste, gender etc. The paper tries to achieve the need of UCC, its effect, challenges. The paper discusses the arguments and cross arguments made in this regard. The paper also tries to balance the right of freedom to religion and UCC.

The objective of the paper

Article 44 of the Constitution of India states that “the state shall endeavor to secure to its citizens a uniform civil code”. The aim of the paper is to find the feasibility of a UCC in a secular country. The main aim of UCC is to bring unity among the citizens coming from various religious backgrounds. The paper discusses in detail the argument put in favor and against the UCC. The paper aims to establish a balance between Freedom of Religion and UCC. The paper deals with the effect of UCC in a secular country.

Introduction

India is a diverse country with distinctive religious practices, each religion having its own philosophies and concept of marriage, adoption, inheritance and others which are protected by the Constitution of India. India being a secular country has no religion of its own and it treats each religion equally. Secularism is the basic structure of our constitution which means that the state is neutral on religious affairs. The state should treat all religions equally.[1]

The Indian Constitution talks about Directive Principle of State policy which are although unenforceable, but the state must take into consideration these principles while making the law of the land. Article 44, for example, is an enabling principle which reads “The state shall endeavor to secure for the citizens uniform civil code throughout the territory of India”.[2]To promote integrity of the nation and to maintain national solidarity among its citizen, the code shall be applicable to every citizen irrespective of caste, creed, sex, place of birth. There are certain laws in India, which are not uniformly applicable like laws related to marriage, inheritance, adoption where different laws are available for Hindus and Muslims regarded as Personal Laws.

Article 44 imposes a positive obligation on the state to implement a UCC throughout India’s territory. However, even after 75 years of independence, it is still only a piece of paper. This study discusses and analyses the socio-legal issues of India’s Uniform Civil Code in light of recent rulings.

Article 44 refers to uniformity in laws governing civil matter marriage, divorce, adoption, succession, and inheritance are only a few examples. India, as a secular republic, should have uniform laws that apply to all citizens, regardless of religion or other considerations. And, in order to achieve the vision of gender justice articulated by our founding fathers in the Indian Constitution, there must be uniformity, as most religious personal laws discriminate against women.

A variety of Hindu statutes now govern Hindus, including the Hindu Marriage Act, Succession Act, and Hindu Adoption and Maintenance Act. Muslims adhere to the Muslim Personal Law Application Act. The Indian Christian Marriage Act governs Christian marriages and related concerns. Citizens of other faiths are subject to different laws. The state is mandated by the Uniform Civil Court to replace each religion’s own rules with a permanent set of norms that govern all Indian people equally.[3]

The provisions relating to inheritance, marriage is governed by the personal law of Hindu, Muslim, Christian which causes injustice to each and every community. For example, it might happen that the Hindu law confirms equal right of inheritance to women while the Muslim women are not entitled to have inheritance under their personal law. This is a gross injustice to Muslim woman because she is a Muslim and a gross violation of article 15 of the Constitution of India.

“Any provision of any law in force that contravenes any of the provisions of the basic right will to that extent be void,” states Article 13 of the Indian Constitution.[4] The Uniform Civil Code can eliminate the inconsistencies generated by Hindu, Muslim, and Christian personal laws. No secular society may reject the application of a Uniform Civil Code for all people, regardless of any prejudice across India’s territory, according to Kuldeep’s decision in SarlaMudgal President Kalyani and othrs. v Union of India.[5]

During British rule, the personnel laws of various communities were first created in order to avoid opposition from diverse communities. Mr. Jawaharlal Nehru, his supporters, and women activists desired a Uniform Civil Code, but it could not be implemented due to opposition, so they had to settle for adding it to the Directive Principle of State Policy.[6]  While this topic was being debated in the constituent assembly, the Muslim leader predicted that their particular law would be superseded by the common Civil Code.[7]

It was pointed out, however, that the Uniform Civil Code would block Article 25’s fundamental right to freedom of religion, and that it would amount to a symbiotic relationship with the minority. As a result, the Uniform Civil Code was accepted to be included in Article 44 of the constitution’s directive principle, which states: “The state shall endeavor to obtain for citizens a Uniform Civil Code throughout the territory of India.” The debate is still ongoing, and it will continue unless the next ruling party demonstrates a strong political will.

Judicial Development

In a series of cases, the Supreme Court and several High Courts have stressed the importance of creating a Uniform Civil Code that applies to all Indians.

In Jorden Dieng desh v S. S. Choptra, the Supreme Court found that the law controlling judicial separation, divorce, and nullity of marriage is far from the concept of unity and integrity. The court stated that the time has come for the legislature to step in and interfere in the UCC issue to establish a uniform marriage and divorce law. The Supreme Court recommended Parliament to pass the Uniform Civil Code in the case of Mohd. Ahmed Khan vs. Shah Bano Begum.

Following the announcement of triple talaq, a Muslim lady filed a claim for maintenance from her husband under section 125 of the Code of Civil Procedure. In this ruling, the Supreme Court stated that Muslim women have the right to receive maintenance from their husbands, and that otherwise, the constitutional obligation of Article 44 is meaningless.[8]

In Lily Thomas vs Union of India,[9] the Supreme Court held that there is no doubt on the need of a Uniform Civil Code in our country.

In the case of Yunusbhai Usmanbhai Shaikh v State of Gujarat, the High Court decided in September 2015[10] to end Muslim polygamy, which was described as a horrible patriarchal vision of society. Prakash vs. Phulavati was decided by the Supreme Court[11] polygamy and triple talaq are two Muslim personal law practices that have been judged to be harmful to public morals and ordered the examination of these existence.[12]

The supreme court in a latest reminder for implementation of Uniform Civil Code on October 12 2015, observed the confusion prevalent in the country is due to personal law governing different religious practices and ask the center whether it is inclined towards implementation of Uniform Civil Code in the country.[13]

The Uniform Civil Code will include general laws that will apply to all citizens and will be based on gender equality. Its provision will be fair and equitable so that every member of the society has a feeling of equality as prescribed in our Indian constitution.

Recently the Delhi High Court in Satprakash Meena vs Alka Meena[14] observed that “In modern Indian society which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating and batted for the need of Uniform Civil Code.”[15]

Uniform Civil Code in Goa

S A Bobde, the former Chief Justice of India, has commended Goa’s Uniform Civil Code. Goa is the first Indian state to have enacted a Uniform Civil Code, which applies to all people regardless of religion, caste, gender, or personal laws. The Portuguese Civil Code of 1867 was allowed to remain in effect when Goa became a Union Territory in 1961.

All religions in Goa are required to obey the same laws concerning marriage, inheritance, divorce, and succession. Every birth, marriage, and death must be registered in Goa. The property and money possessed and accumulated by each spouse during the course of a marriage is held jointly by both spouses. Religious ceremonies are frequently undertaken by the parties at their leisure days or months following the civil marriage. The Goa Civil Code is notable for the fact that each spouse is entitled to half of the property in the event of divorce, and in the event of death, the surviving spouse is entitled to half of the property ownership.[16]

However, the Goa Civil Code has a certain drawback for example Muslim cannot practice polygamy, who have their marriage registered in Goa however Hindu men under specific circumstances mentioned in the Customs of Hindus of Goa, have the right to bigamy.

OBSERVATIONS

Argument put in favor of Uniform Civil Code is that it will integrate India and bring every citizen irrespective of his caste, religion, tribe under one common code. Uniform Civil Code with will change the thousands of year-old values of personal law which has constituted an alternate judicial system.

The Uniform Civil Code will assist society in moving forward in social development and will assist India in moving away from caste and religious politics, allowing it to achieve its objective of being a truly developed nation. UCC will also aid in the improvement of women’s conditions in India, as religious personal rules are more sexist in nature, subjecting women to mistreatment. UCC will result in true secularism since it will not restrict people in our country from practising their religion; instead, everyone will be treated equally and all citizens of India would have the right to follow the same laws, regardless of faith. The codification of the various personal law will reduce the existing confusion in the legal system and enable a structured administration of law by the judiciary.

One of the arguments in opposition to the enactment of Uniform Civil Code is that it influences the freedom of religion of the minorities. The question of how a behavior like triple talaq can be deemed religious activity even when it is not sanctioned by the religious book is a valid one. In Turkey and Tanisha, having more than one wife is severely illegal, while in Pakistan and Bangladesh, it is strictly limited.[17] In Egypt, Sudan, Indonesia, and Malaysia, the practise of triple talaq has been outlawed.[18]If the Muslim country can reform Muslim Personal law, then why are the Indian Muslim living under the laws passed in 1930.

Another argument put forward is whether it is possible to reconcile the personal laws of various communities. While it is true that all religious customs and practices of distinct communities cannot be reconciled, it is conceivable to harmonize the secular aspects of those religions, since they will engage in secular activities and fall within the state’s regulatory authority.

One of the hurdles that comes in implementation of the UCC is a feeling of losing religious identity by the minority. But such an apprehension is false as the freedom of religion, conscience, and propagation and practice of religion are all guaranteed by the Constitution. [19] It also guarantees to the minority the right to conserve the language and culture[20] and also the right to establish and administer educational institution.[21]

Balancing UCC and Freedom to Religion

Part III of the Indian Constitution declares that fundamental rights are not absolute, and article 25 declares that the right to religious freedom is no exception. Article 25 protects religious freedom, conscience freedom, and the freedom to profess, practice, and spread religion. It is, however, “subject to other provisions of this part,” notably the right to equality. As a result, while religious liberty includes the right to be governed by personal law, it excludes the right to deny people equality or personal liberty. As a result, the personal law is not immune to the sovereign involvement of the legislature.

In the recent case of Nikhil Soni versus Union of India, the court highlighted that a practice can be religious but not vital and integral to the faith. Only those religious practice that are a vital and integral element of our religion are protected by Article 25 of the constitution. Practice such as superstitious, sati, child marriage, prohibition against widow remarriage, caste discrimination may be barred or regulated as this are not secular activities.[22]

Therefore, once it is held that practices which do not form the essentials of religion but only a secular activity, by enacting Article 44 of the constitution, the legislature would be able to create a consistent regulation governing such a secular activity. As a result, a Uniform Civil Code will fall squarely within the scope of the constitutional provision and will not infringe on the right to religious liberty.

Effect of Uniform Civil Code

India requires a Uniform Civil Code for two key reasons. As the secular country, India wants uniform norms for all of its residents, rather than religiously motivated legislation. This was a major point of contention throughout the constitution’s construction, with a compromise answer being a directive principle that states, “States shall seek to guarantee for citizens a uniform civil code throughout the territory of.”

The necessity for gender fairness is the second motivation for the implementation of the Uniform Civil Code. Women’s rights are limited in Hindu and Muslim personal laws. The classic example of this is the practice of triple talaq. The government must strive hard to earn the trust of various religious groups, particularly minorities, and make common cause with social reformers rather than religious conservatives as it moves toward a single Civil Code.

Former Chief Justice of India Justice Gajendragadkar has stated that the failure to implement Article 44 constitutes a major failure of Indian democracy, and that the sooner we take appropriate action in this regard, the better, and that a common Civil Code is a must in the process of evolving a new secular social order.[23]

Conclusion

Despite the various challenges the government need to find a way for the development of Uniform Civil Code. The need of Uniform Civil Code is tremendous in the 21st century. From national unity, secularism to gender justice; Uniform Civil Code is necessary as the personal laws and plurality of laws is extended to the national integrity and solidarity. India’s whole population must be governed by a single set of laws. Countries like that Germany, France, Canada, Japan, Turkey and Portugal are some where Uniform Civil Code have been functioning successfully.

India is a secular country where all the person belonging to different religion leave together. Instead of conservative religious leaders, we need to build trust and launch an awareness campaign led by social reformers. UCC should not be implemented at once otherwise it will create a chaos like the liquid ban in Bihar. We should make adjustments one at a time, one issue at a time and raise awareness about them, such as marriage, succession, adoption and inheritance. No religion allows discrimination and therefore personal law based on religious scripture which gives discriminatory treatment should not be allowed to exist.


[1] Acharya Jadiswaranad Avadhut v. Commissioner of Police, Calcutta AIR (1984)4 SCC 522.

[2] The Constitution of India, Preamble

[3] Wikipedia Uniform Civil Code, 19th May 2017.

[4] The Indian Constitution.

[5] SarlaMudgal President Kalyani and othrs. v Union of India AIR 1995 SC 1531.

[6] Uniform Civil Code, available at: https://en.wikipedia.org/wiki/Uniform_Civil_Code(Last Modified- 22nd August 2021)

[7] H. R. Khanna Making of Indian Constitution.

[8] AIR 1985 SC 945

[9] AIR  2000 SC 1650.

[10] 2015 3GLR 2512

[11] (11) SCALE 643

[12] Editorial “Uniform Civil Code is a Necessity” The Hindustan Times, 19 Nov 2015.

[13] Editorial, “UCC Need to be Pushed” Indian Express, 13 October 2015.

[14] C.R.P.1/2021 and CM APPL. 332/2021

[15] Sanjeev Sirohi Lawyersclub 13th July 2021.

[16] Goa Succession Act 2012.

[17] Durga Das Basu, Commentary on Indian Constitution (LexiNexis 8 December 2017)

[18] Raya Hazarik, Should India have a UCC 25 October 2010.

[19] The Constitution of India, art 25(1)

[20] The Constitution of India, art 29(1)

[21] The Constitution of India, art 29(2).

[22] Editorial, “Who’s afraid of a UCC” The Hindu, 13 August 2003.

[23] Gajendragadkar, Securalism and The Constitution of India 126(1972)

Author: Aaryan Dwivedi, Gujarat National Law University, Gandhinagar Gujarat

Editor: Kanishka VaishSenior Editor, LexLife India

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