B.A.LLB 4th Semester
Geeta Institute of Law, Karhans, Panipat
B.A.LLB 4th Semester
Geeta Institute of Law, Karhans, Panipat
This paper talks about the concept of uniform civil code and its legal dimensions in the legal perspective. As part IV of the Constitution of India contains the Directive Principles of State Policy. In spite of the fact that these principles are non-enforceable yet are crucial in the administration of the nation. One such principle is given under Article 44 of the Constitution which makes an obligation on the state to establish a uniform civil code. This paper tries to evaluate that whether we need a uniform civil code or not, and whether uniform civil code should be implemented, what are the pros and the cons of implementing uniform civil code in a Secular country like India. As India being such a diverse nation in which people are governed by their own personal laws as it will be a difficult task to provide justice to different people under uniform law.
Last but not the least, this paper concludes with the further recommendations and conclusion.
Key Words-: Uniform Civil Code, Administration, Judiciary, Personal Laws, Directive Principles, Constitution, Secularism.
India is a country which follows the ‘Secularism’ as it was added in our constitution by the 42nd Amendment in 1976 and it was also added in our preamble. The term ‘secular’ means that state will not be a follower of any particular religion and also not dominate people on the basis of the religion that they follow. According to this people are free to follow which ever religion they are willing to follow. The same is said in our constitution and being provided as a fundamental right to the citizens under the Article 25 and 26. Thus India is a country of multi-religious and multi-languages. So it is a diverse nation with a number of people having their own traditions, customs, rituals, customs and religion which are governed by their own personal laws. There are number of codes for different communities such as-
- Hindus are governed by their personal laws like- Hindu Marriage Act, Hindu Succession Act, Hindu Maintenance and Adoption Act, Hindu Guardianship Act and etc.
- Muslims are governed by their laws like- Shariat Application Act, 1937 which generally deals with marriage, succession, inheritance and charities among Muslims.
- Anand Marriage Act, 1909 for the Sikhs.
- Indian Christian Marriage Act, 1872 for the Christian peoples.
- Jains, Sikhs, Buddhists are also governed by Hindu Marriage Act, 1956 which deals with marriage, divorce, maintenance.
The problem here arise that different personal laws have different types of problems in their personal laws and there is no uniformity among them and in many laws women’s are being deprived from the rights and they don’t provide them the rights. To ensure these shortcomings all personal laws will be replaced by a single Uniform code for their citizens, irrespective to their religion. But it is strongly opposed because it is considered to violate Article 25 of the constitution.
The concept of Uniform Civil Code has introduced so that there should be a common civil code for every citizen throughout the territory of India by states. Uniform Civil Code includes civil laws related to the marriage, divorce, adoption and inheritance of property. The main aim of the Uniform Civil Code is to make unity among different people from different religion and to promote justice, equality and national integrity.
HISTORICAL BACKGROUND OF UCC
The idea of uniform civil code was introduce in the national political debate held in1940, In this meeting the demand for the uniform civil code was first came out by the National Planning Committee appointed by the congress party at that time. And by the sub-committee for the ‘women’s role in planned economy’ was specially directed to study the role that women will play in future independent India. The demand for uniform civil code was firstly put forward by the women activists in the beginning of the twentieth century with the objective to provide women’s with their rights, equality and secularism. Till the Independence of India in 1947 few of the reforms were passed to improve the condition at that time but not fully they were provide with the rights the provision of equality was provided but not totally they were treated equal to men’s in the society.
Though the demand of Uniform Civil Code was made by the Prime Minister Jawaharlal Nehru, with his supporters and some of the women activists but they had to finally compromise of it being added to the Directive Principles because of heavy majority of the opposition. The directive to enact a Uniform Civil Code in the constitution was result to the efforts of Minoo Masani a member of sub-committee on Fundamental rights, he moved on 28th March 1947 that state should be made responsible to enact Uniform Civil Code in order to break down the barriers between the various communities on the basis of religion.
But under Article 44 of the Constitution of India, is that the state is under the constitutional obligation to make the best possible efforts towards the establishment of the one uniform code for all persons, but if these provisions comes under the direct conflict with provisions in part III of the Constitution of India, then the judiciary of India has been given regulatory powers, and also vide power to expound the provisions and bring into practice the basic philosophy underlying the provisions.
UNIFORM CIVIL CODE AND PERSONAL LAWS
As we all know about the fact that India is still a male dominated society, where women are often seen as subordinate and inferior to men. And this process famously known as the ‘Patriarchal system’ Thus patriarchy is a social system in which men hold primary power, predominate in the roles of political leadership, moral authority, special privilege and control of the property. They also hold power in the domain of the family, as fatherly figures. The women are considered to be inferior to the men in most of the case their suggestion or discussion on any matter doesn’t give too much of the importance. Like in the matters of matrimony, succession, adoption or inheritance Hindu women did not enjoy the same rights as compared to the Hindu men in the society.
There are some of the facts which tell us about how the personal laws have negatively affected the life of women in some of the religions practiced in India:
Parsi personal law:-
- If a Parsi woman marries someone who isn’t a Parsi, than their children are not accepted as part of the Parsi community. However this does not apply to a Parsi man marrying outside the Parsi community.
- A non-Parsi woman who is married to or is the widow of a Parsi man cannot inherit on his death though their children can inherit.
Hindu personal law:-
- If a married woman dies without having any children, her property, under the Hindu Succession Act, is inherited by the heirs of her husband and not her own.
- Section 6(a) of the Hindu Minority and Guardianship Act gives the father the status of the natural guardian in the case of a legitimate child. The need for equality of rights of natural guardianship between both parents is ignored.
- Hindu men are also allowed to practice bigamy under certain conditions in Goa, although Goa claims to be the only State to have a Uniform Civil Code in place.
Muslim personal law:-
- The practice of Talaq-e-bidat (triple talaq) allows for a Muslim man to divorce his wife instantly by uttering the word talaq three times in one sitting, a Muslim woman must follow a legal procedure after obtaining her husband’s consent to be able to get a divorce.
- Allows for a Muslim man to have multiple wives.
- The practice of Nikah Halala determines that a Muslim woman is not allowed to remarry the husband who has divorced her unless she first marries another man and consummates that marriage.
ROLE OF JUDICIARY
The Supreme Court of India has always been the supporter of the uniform civil code. As they had declared in the legendary case i.e. Mohd. Ahmed Khan v. Shah Bano (hereinafter referred as Shah Bano case), that once again brought the issue of UCC on the preface. In this much celebrated case the Supreme Court brought a divorced Muslim woman within the cover of section 125 of the Code of Criminal Procedure, 1973 and declared that she was entitled for maintenance even after the completion of her iddat period. Although Supreme Court had assumed the role of a social reformer in many other previous cases, Shah Bano case usurped a landmark position in the history of debates on religion, secularism and the rights of women. If we carefully side-step the political drama that later unfolded, we would be able to trace the problems the courts of our country have been facing due to the separate conflicting laws.
As pointed out in the Constitutional Assembly debates, there already exist a number of uniform laws in our country. The courts were taken by surprise in situations where such uniform laws came at loggerheads with the various personal laws, as was the case in Shah Bano. With articles 14, 15 on one hand and article 25 on the other, the courts found themselves in a fix so as to decide to give precedence to which fundamental right. The Supreme Court’s use of a uniform law to provide remedy to Shah Bano proved to be a much easier path to protect the basic rights of women. Had the Supreme Court taken recourse to the specific personal laws, it might have found itself embroiled in debates to theology thus neglecting the plight of the women The court stated that:
Section 125 was enacted in order to provide a quick and summary remedy to a Class of persons who are unable to maintain themselves what difference would it then make as to what is the religion professed by the neglected wife, which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion True, that they do not supplant the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the constitution, their applicability is restricted to a defined category of religious groups or classes. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligations to the society to prevent vagancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. (Emphasis Supplied).
Shah Bano case highlights the need for a uniform law which addresses the core need of a woman in distress. It tries to state that it is the suffering of the woman that should be at the core of any gender justice law. The refusal of the husband to maintain his wife after conveniently giving her a divorce is the issue which the law should address rather than addressing what the specific religion has laid down for that woman.
State of Bombay vs. Narasuappa Mali In this case the legislative provisions modifying the old Hindu law were challenged on the ground of being violative of Articles 14, 15 and 25 of the Constitution, the Bombay High Court held that the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 was intra vires to the Constitution, as it violated Article 25 and permitted classification on religion grounds only, forbidden by Articles 14 and 15.
C.J. Chagla considered that: “Article 14 does not lay down any legislation that the state may embark upon must necessarily be of and all embracing character. The state may rightly decide to bring about social reform by stages, and the stages may be territorial or they may be community wise, and that the discrimination may be by the Act between Hindus and Muslims does not offend the equality provisions of the constitution.”
In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and Others AIR 1995 SC 1531 the Apex Court while delivering the judgment directed the Government to implement the directive of Article 44 and to file affidavit indicating the steps taken in the matter and held that
“Successive governments have been wholly remiss in their duty of implementing the Constitutional mandate under Article 44, Therefore the Supreme Court requested the Government of India, through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and endeavour to secure for its citizens a uniform civil code throughout the territory of India.”
Lily Thomas etc. v. Union of India and others AIR 2000 SC 1650 and held that the desirability of Uniform Civil Code can hardly be doubted. But it can concretize only when social climate is properly built up by the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change for the betterment of the nation at large.
PROS AND CONS OF IMPLEMENTING UCC
India as a secular state–:
As in our preamble it is clearly written that India is a sovereign, socialist, and the secular state. Even after the decades of Independence different personal laws are in existence of different religion. What we have now in India is selective secularism which means that in some part of the country we are secular and in some part we are not. A uniform civil code means that all the citizens will be to followed the same laws whether Hindu, Muslim, Christian, Sikh, etc. And it sound fair also. It does not mean that it will limit the people to follow their religion but it means that it will treat the people the same that actual secularism means.
By the implementation of the uniform civil code it will abolish the discrimination that is done in our nation on the basis of gender like we have seen that different religion has different laws which are doing discrimination on the gender basis. So by the implementation of the uniform civil code such type of practices will be abolished.
Provide equal status to all citizens-:
A secular democratic republic country should have common civil and the personal laws for its citizens irrespective of their religion, class, caste, gender, etc.
To support the national integration-:
All the citizens in India are equal before the court of law as in the criminal laws and other civil laws but except in the personal laws of the citizens of different religion. By the implementation of the uniform civil code all citizens will share the same set of the personal laws and will come under the one roof.
Practical difficulty in implementation-:
It is difficult to implement a uniform civil code because of the diverse population in the country. A cultural difference due to the state to state and community to community is the hindrance of implementing the uniform civil code.
Threat to communal harmony-:
The misunderstanding among the minorities that it is coming across their religion and it hurt their sentiments. It is a big threat to the communal harmony in the nation and it will destroy the peace. So first is to authorities have to win the trust of the people before implementing.
Infringement of personal laws-:
The Muslim community is not in favor of implementing the uniform civil code as they said that it gravely violate their personal laws and thus result in the irreversible damage to their religion and the laws.
Sensitive and difficult task-:
UCC in its true spirit must be created by borrowing from various personal laws, making gradual changes in each, issuing judicial pronouncements, assuring gender equality and adopting expensive interpretation on marriage, maintenance, adoption and succession. Otherwise it will lead to communal violence.
Our Constitution guarantees freedom of conscience and free profession, practice and propagation of religion and freedom to manage religious affairs by Article 25 and 26. Article 44 also does not say that all personal laws should be repealed and that the proposed uniform civil code be imposed on all citizens. As rightly assured the Constituent Assembly by Dr. Ambedkar, that the citizens would be required to declare voluntarily that they would be governed by such code when enacted and not imposed on all citizens.
However, a section of people misinterpret this Article and urge the government to abolish the Muslim personal law and enact a uniform civil code, thus, this has caused threat to the national unity or integration. Not much progress has been made towards achieving the ideal of a uniform civil code; the only tangible step taken in this direction has been the codification and secularization of Hindu law. The codification of Muslim law still remains a sensitive matter.
The very object of inserting Article 44 has already been achieved by the Special Marriage Act, 1954 and the Hindu code, which is applied to the majority of Indians. Those having any objection to their personal law can register their marriages under the Special Marriage Act and enjoy its benefits with regard to matters connected with marriage; and of Indian Succession Act, 1925 regarding succession to property. There is no justification for denying this protection to the personal laws of those to whom the Hindu Succession Act, 1956, is not applicable, by the Legislature. Article 44 of the Constitution has lost all its significance and become redundant. It is necessary that law should be separated from religion. With the enactment of a uniform civil code, secularism will be heightened; the differences between various religious groups will disappear and India will emerge as a much more cohesive and integrated nation.
 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, practice and propagate religion.
 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.
 Supra note 3.
 Fazlunbi v. Khader Ali, 1980 SCR (3) 1127
 The Constitution of India, 1950 art 14: Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
 The Constitution of India, 1950 art 15 (1): The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
 The Constitution of India, 1950, art 25 (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, practice and propagate religion.
 Supra note 10.
 The Constitution of India, 1950 art 44: The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.