Uniform Civil Code

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Context:

Recently, the Ministry of Law and Justice said in response to a PIL filed in 2019 that the implementation of the Uniform Civil Code (UCC), a directive principle under the Constitution (Article 44), is a matter of public policy and that no direction in this regard can be issued by the Court.

About Uniform Civil Code:

• Uniform Civil Code is a proposal in India to formulate and implement secular personal laws of citizens which apply on all citizens equally regardless of their religion. Currently, personal laws of various communities are governed by their religious scriptures.
• It is an important issue regarding secularism in Indian politics and continues to remain disputed by India’s Muslim groups and other conservative religious groups and sects in defence of sharia and religious customs.
• Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
• Meanwhile, article 25-28 of Indian constitution guarantee religious freedom to Indian citizens and allows religious groups to maintain their own affairs, article 44 of the constitution expects the Indian state to apply directive principles and common law for all Indian citizens while formulating national policies.
• Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.
  • Indian state of Goa was separated from British India due to colonial rule in the erstwhile Portuguese Goa and Damaon, retained a common family law known as the Goa civil code and thus being only state in India with a uniform civil code till date.
  • Following India’s independence, Hindu code bills were introduced which largely codified and reformed personal laws in various sects among Indian religions like Buddhists, Hindus, Jains and Sikhs while exempted Christians, Jewish people, Muslims and Parsis, being identified as distinct communities from Hindus.
• UCC emerged as a crucial topic of interest in Indian politics following the Shah Bano case in 1985.
  • The debate arose when the question of making certain laws applicable to all citizens without abridging the fundamental right to practice religious functions. The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law, permitting unilateral divorce, polygamy and putting it among the legally applying the Sharia law.

History

British India (1858–1947)

The debate for a uniform civil code dates back to the colonial period in India. Prior to the British rule, under the East India Company (1757-1858), they tried to reform local social and religious customs. Lord William Bentinck, the Governor-General of India, tried to suppress sati, the prescribed death of a widow on her husband’s funeral pyre, and passed the Bengal Sati Regulation, 1829. This was later extended outside Bengal to all English territories in India.

The Lex Loci Report of October 1840 emphasised the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification.

Legislative reforms

The law discriminated against women by depriving them of inheritance, remarriage and divorce. Their condition, especially that of Hindu widows and daughters, was poor due to this and other prevalent customs. The British and social reformers like Ishwar Chandra Vidyasagar were instrumental in outlawing such customs by getting reforms passed through legislative processes. Since the British feared opposition from orthodox community leaders, only the Indian Succession Act 1865, which was also one of the first laws to ensure women’s economic security, attempted to shift the personal laws to the realm of civil. The Indian Marriage Act 1864 had procedures and reforms solely for Christian marriages.

There were law reforms passed which were beneficial to women like the Hindu Widow Remarriage Act of 1856, Married Women’s Property Act of 1923 and the Hindu Inheritance (Removal of Disabilities) Act, 1928, which in a significant move, permitted a Hindu woman’s right to property.

The call for equal rights for women was only at its initial stages in India at that time and the reluctance of the British government further deterred the passing of such reforms. The All India Women’s Conference (AIWC) expressed its disappointment with the male-dominated legislature and Lakshmi Menon said in an AIWC conference in 1933, “If we are to seek divorce in court, we are to state that we are not Hindus, and are not guided by Hindu law. The members in the Legislative assembly who are men will not help us in bringing any drastic changes which will be of benefit to us.” The women’s organisations demanded a uniform civil code to replace the existing personal laws, basing it on the Karachi Congress resolution which guaranteed gender-equality.

The passing of the Hindu Women’s right to Property Act of 1937, also known as the Deshmukh bill, led to the formation of the B. N. Rau committee, which was set up to determine the necessity of common Hindu laws. The committee concluded that it was time of a uniform civil code, which would give equal rights to women keeping with the modern trends of society but their focus was primarily on reforming the Hindu law in accordance with the scriptures. The committee reviewed the 1937 Act and recommended a civil code of marriage and succession; it was set up again in 1944 and send its report to the Indian Parliament in 1947

The Special Marriage Act, which gave the Indian citizens an option of a civil marriage, was first enacted in 1872. It had a limited application because it required those involved to renounce their religion and was applicable mostly to non-Hindus. The later Special Marriage (Amendment) Act, 1923 permitted Hindus, Buddhists, Sikhs and Jains to marry either under their personal law or under the act without renouncing their religion as well as retaining their succession rights.

Post-colonial (1947–1985)

Hindu Code Bill and addition to the Directive Principles

The Indian Parliament discussed the report of the Hindu law committee during the 1948–1951 and 1951–1954 sessions. The first Prime Minister of the Indian republic, Jawaharlal Nehru, his supporters and women members wanted a uniform civil code to be implemented. As Law Minister, B. R. Ambedkar was in charge of presenting the details of this bill. It was found that the orthodox Hindu laws were pertaining only to a specific school and tradition because monogamy, divorce and the widow’s right to inherit property were present in the Shashtras. Ambedkar recommended the adoption of a uniform civil code. Ambedkar’s frequent attack on the Hindu laws and dislike for the upper castes made him unpopular in the parliament. He had done research on the religious texts and considered the Hindu society structure flawed. According to him, only law reforms could save it and the Code bill was this opportunity. He thus faced severe criticism from the opposition. Nehru later supported Ambedkar’s reforms but did not share his negative view on Hindu society

The Hindu bill itself received much criticism and the main provisions opposed were those concerning monogamy, divorce, abolition of coparcenaries (women inheriting a shared title) and inheritance to daughters. The first President of the country, Rajendra Prasad, opposed these reforms; others included the Congress party president Vallabhbhai Patel, a few senior members and the Hindu fundamentalists within Indian National Congress. The women members of the parliament, who previously supported this, in a significant political move reversed their position and backed the Hindu law reform; they feared allying with the fundamentalists would cause a further setback to their rights.

Thus, a lesser version of this bill was passed by the parliament in 1956, in the form of four separate acts, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act. It was decided to add the implementation of a uniform civil code in Article 44 of the Directive principles of the Constitution specifying, “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” This was opposed by women members like Rajkumari Amrit Kaur and Hansa Mehta. According to academic Paula Banerjee, this move was to make sure it would never be addressed. Aparna Mahanta writes, “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”.^[23]

Later years and Special Marriage Act

The Hindu code bill failed to control the prevalent gender discrimination. The law on divorce were framed giving both partners equal voice but majority of its implementation involved those initiated by men. Since the Act applied only to Hindus, women from the other communities remained subordinated.

For instance, Muslim women, under the Muslim Personal Law, could not inherit agricultural land. Nehru accepted that the bill was not complete and perfect, but was cautious about implementing drastic changes which could stir up specific communities. He agreed that it lacked any substantial reforms but felt it was an “outstanding achievement” of his time.He had a significant role in getting the Hindu Code bill passed and laid down women-equality as an ideal to be pursued in Indian politics, which was eventually accepted by the previous critics of the bill. 

The Special Marriage Act, 1954, provides a form of civil marriage to any citizen irrespective of religion, thus permitting any Indian to have their marriage outside the realm of any specific religious personal law. The law applied to all of India, except Jammu and Kashmir. In many respects, the act was almost identical to the Hindu Marriage Act of 1955, which gives some idea as to how secularized the law regarding Hindus had become. The Special Marriage Act allowed Muslims to marry under it and thereby retain the protections, generally beneficial to Muslim women, that could not be found in the personal law. Under this act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Muslim Personal Law. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down in the civil law.

Why India needs Uniform Civil Code? (Pros)

• Nature of India– A secular republic like India needs a common law for all citizens rather than differentiated rules based on religious practices.
• Gender Parity – The rights of women are generally restricted under religious law, be it Hindu or Muslim. Triple talaq, priority given to men in terms of succession and inheritance are some examples.
• Uphold rights – Many practices governed by religious tradition are contrary to the fundamental rights guaranteed in the Indian constitution.
• Judicial orders – Courts have also opined that the government should move towards a Uniform Civil Code. For example – the Shah Bano case.
• Constitutional mandate – The constitution has a provision for the Uniform Civil Code in Article 44 as a Directive Principle of State Policy (DPSP) which mentions that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. But DPSP cannot be enforced by the court. However, the legislature can enforce UCC by enacting a law.
• National Integration – UCC would make the dream of “One Nation, One Law” come true. India believes in one nation and hence no community shall claim separate religious laws. In this way, it’ll promote national integration.
• Young people’ aspirations – 55% of India’s population is comprised of people below 25% years of age. Their social attitudes and aspirations are based on universal principles of humanity, equality, and modernity. In order to realize their full potential for nation-building, their attitudes and aspirations should be respected.

Why is it not feasible in India? (Cons)

• Practical difficulties – India is a country with diversity in religion, ethnicity, castes, etc. Hence it is practically not feasible to come up with uniform rules for personal issues like marriage due to the cultural diversity. It is also difficult to convince every community to replace their age-old traditions with a new law.
• Violation of religious freedom – UCC is considered by religious minorities as an encroachment on their rights to religious freedom. They fear that their traditional religious practices will be replaced by the rules and diktats of majority religious communities.
• The state should not interfere in personal matters – The constitution provides for the right to freedom of religion of one’s choice. UCC would violate that right.
• 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 expansive interpretations on marriage, maintenance, adoption, and succession. These are daunting tasks on human resource-wise. Moreover, the government should be sensitive and unbiased at each stage while dealing with the majority and minority communities. Otherwise, it might lead to communal violence.
• Time is not suitable yet – There are already controversies over the beef ban, saffronization of school and college curriculum, love jihad, etc. At this time, the introduction of UCC would only make things worse as it would make Muslims more insecure and vulnerable to get attracted towards fundamentalist and extremist ideologies.

Significance of UCC

• Uniform Principles: Common Code would enable uniform principles to be applied in respect of aspects such as marriage, divorce, succession etc. so that settled principles, safeguards and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws.
• Promotion of secularism: One set of laws to govern the personal matters of all citizens irrespective of religion is the cornerstone of true secularism. It would help end gender discrimination on religious grounds and strengthens the secular fabric of the nation.
• Protection of Vulnerable & Women’s Rights: It will protect the vulnerable sections of society. Women have been denied via personal laws in the name of socio cultural-religious traditions. Therefore UCC could bring all communities together to ensure Women the Right to a dignified life and control over their life as well as body.
• Reduced Discord: if and when the whole population will start following the same laws, chances are there that it would bring more peace in the living and reduce riots. Hence, Religious harmony will be created for peaceful living in the country
• Prevents religion-based discrimination: Personal laws differentiate between people on grounds of religion. A unified law having the same provisions regarding marital affairs would provide justice to those who feel discriminated against.
• Ending unjust customs and traditions: A rational common and unified personal law will help eradicate many evil, unjust and irrational customs and traditions prevalent across the communities. For example, Law against Manual scavenging. It might have been a custom in the past but in a mature democracy like India, this custom cannot be justified.
• Eases Administration: UCC would make it easy to administer the huge population base of India.

Cases related to UCC:

• Shah Bano Case

Mohammad Ahmed Khan v. Shah Bano Begum mainly known as Shah Bano Case. In this case, in 1985, Shah Bano moved to Supreme Court for seeking maintenance under section 125 of the Code of Criminal Procedure when her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance. The Supreme Court gave the verdict in favour of Shah Bano by applying section 125 of the Indian Criminal Code and it is applied to all citizens irrespective of religion. Then Chief Justice, Y.V Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. And so, the court directed Parliament to frame a UCC.

On the other hand, Rajiv Gandhi Government was not satisfied from the court decision; instead of supporting it, the government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 to nullify the Supreme Court judgement in Shah Bano Case and let the Muslim Personal Law prevails in a divorce matter. In this act, it was mentioned that Muslim woman has right for maintenance only for three months after the divorce i.e. iddat and then shifted her maintenance to her relatives or Wakf Board.

• Daniel Latifi Case:-

Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to equality under Articles 14& 15 as well as the right to life under Article 21. The Supreme Court while holding the law as constitutional, harmonised it with section 125 of CrPC and held that the amount received by a wife during iddat period should be large enough to maintain her during iddat as well as provide for her future. Thus under the law of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is remarried.

• Sarla Mudgal Case

This is the second instance in which the Supreme Court again directed the government under Article 44. In this case Sarla Mudgal v Union of India, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam can solemnize the second marriage. The Supreme Court held that adopting Islam for a second marriage is an abuse of Personal laws. Further said that Hindu marriage can be dissolved under Hindu Marriage Act, 1955 i.e. mere by converting itself into Islam and marry again does not dissolve the marriage under Hindu Marriage Law and thus will be an offense under Section 494[5] of the Indian Penal Code.

• John Vallamattom v. Union of India Case

The Priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the Indian Succession Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for the religious or charitable purpose by will. The bench comprising of Chief Justice of India V.V Khare, Justice S.B Sinha and Justice A.R. Lakshmanan struck down the Section declaring it to be unconstitutional. Further, Khare stated that 

“Article 44 provides that the State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India. It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies”.

Challenges

Constitutional challenges

• The right to religious freedom clashes with the right to equality.
• Article 25 establishes a person’s fundamental right to religion.
• Article 26(b) protects each religious denomination’s or section’s ability to “conduct its own business in religious matters.
• ” The right to preserve distinctive culture is defined in Article 29.
• These rights are incompatible with the equality before the law guaranteed by articles 14 and 15.
• Furthermore, under Article 25, an individual’s religious freedom is subject to “public order, health, and morals.”
• According to a report released by India’s Law Commission in 2018, the Uniform Civil Code is “not necessary nor desirable at this time” in the country. According to the Commission, secularism cannot be incompatible with the country’s diversity.

Social-political challenges

• Minorities fear that the majority’s culture will be pushed on them in the name of uniformity.
• Given India’s immense cultural diversity, getting all of these people together will be a huge challenge.
• The patriarchal worldview of Indian society makes the application of the Uniform Civil Code difficult.
• This may be seen in the fact that, despite the fact that the Hindu code bill has been in existence since the mid-1950s, Hindu women only inherit a fraction of the land to which they are entitled.

Conclusion

• The guiding principles of the Constitution itself visualize diversity and have tried to promote uniformity among peoples of different denominations. 
• A uniform law, although highly desirable but may be counterproductive to the unity and integrity of the nation. 
• Hence, only those elements of customs and traditions should be brought into a unified law that causes injustice to individuals. 
• There are some good and equitable provisions in personal laws, which are worth incorporating in the unified law. 
• At the same time, good customs and traditions should be protected to preserve the indigenous culture associated with it. It will help India protect its strength i.e. unity in diversity.
• In a democracy and rule of law, a gradual progressive change and order must be brought about. 

Law Commission’s recommendations

• The commission stresses initiatives to reconcile the country’s diversity with universal arguments on human rights.
• It recommended codification of all personal laws
  • So that the prejudices and stereotypes in all religions can be brought to light.
  • They can eventually be tested against the anvil of the fundamental rights in the constitution.
  • It could help arrive at certain universal principles.
  • These may facilitate prioritizing equality instead of the imposition of UCC.
• Uniform Civil Code would only discourage many from using the law altogether. This is especially true considering the fact that matters related to marriage and divorce can be settled extra-judicially as well. Thus the commission suggested certain amendments in the personal laws related to marriage and divorce.
  • Fixing the marriageable age of boys and girls at 18 years so that they can marry as equals.
  • Making adultery a ground for divorce for men and women.
  • Simplifying the divorce procedure.
  • It suggested making polygamy a criminal offense and applying it to all communities.

Click here to read about special marriage act

Source: Indian Express

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