About Uniform civil code:
- UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
- Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
- Article 44 is one of the Directive Principles of State Policy (DPSP).
- DPSP as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
Uniform Civil Code Debate
Historical perspective – The debate for a uniform civil code dates back to the colonial period in India.
- Pre-Independence (colonial era)
- The Lex Loci Report of October 1840- It stressed the importance and necessity of uniformity in the codification of Indian law, relating to crimes, evidence and contract. But, it also recommended that personal laws of Hindus and Muslims should be kept outside such codification.
- The Queen’s 1859 Proclamation- It promised absolute non-interference in religious matters.
So while criminal laws were codified and became common for the whole country, personal laws continue to be governed by separate codes for different communities.
- Post-Colonial era (1947-1985)
- During the drafting of the constitution, prominent leaders like Jawaharlal Nehru and Dr B.R Ambedkar pushed for a uniform civil code. However, they included the UCC in the Directive Principles of State Policy (DPSP, Article 44) mainly due to opposition from religious fundamentalists and a lack of awareness among the masses during the time.
Some of the reforms of this period were:-
The Hindu code bill -The bill was drafted by Dr.B R Ambedkar to reform Hindu laws, which legalized divorce, opposed polygamy, gave rights of inheritance to daughters. Amidst intense opposition of the code, a diluted version was passed via four different laws.
Succession Act-The Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act on September 9, 2005
The Hindu Marriage Act
Minority and Guardianship Act
Adoptions and Maintenance Act
Special Marriage Act:
- It was enacted in 1954 which provided for civil marriages outside of any religious personal law.
- Judicial interventions:
Shah Bano case (1985):-
A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law.
The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. Further, It recommended that a uniform civil code be set up.
Facts about the case:
- Under Muslim personal law, maintenance was to be paid only till the period of iddat. (three lunar months-roughly 90 days ).
- Section 125 of CrPC (criminal procedure code) that applied to all citizens, provided for maintenance of the wife.
Impact – After this historic decision, nationwide discussions, meetings and agitations were held. The then government under pressure passed The Muslim Women’s (Right to protection on divorce ) Act (MWA) in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.
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:-
In this case, the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnise a second marriage. The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955. Conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code(IPC).
John Vallamattom Case:-
In this case, a priest from Kerala, John Vallamattom challenged the Constitutional validity of Section 118 of the Indian Succession Act, which is applicable for non-Hindus in India. Mr Vallamatton contended that Section 118 of the act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will. The bench struck down the section as unconstitutional.
The Constitution of India on the Uniform Civil Code
Part IV, Article 44 of the Constitution states that “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”.
However, Article 37 of the Constitution itself makes it clear the DPSP “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”. This indicates that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory.
Other constitutional provisions relating to religious freedom and secularism are:
- Article 15- No discrimination on grounds of religion, race, caste, sex or place of birth.
- Article 25- Freedom of conscience and free profession, practice and propagation of religion, subject to reasonable restrictions on the grounds of public order, health and mortality.
- Article 25 (2)-provides for regulating secular activities associated with religious practices, social welfare and reform.
- Article 26- Right to establish and administer religious institutions.
- Article 27- Prohibits the state from levying a tax, proceeds of which are used for the benefit of a particular religion.
- Article 28- deals with the issue of religious instruction in educational institutions.
The 42nd Constitutional Amendment Act inserted the word ‘secularism’ in the preamble. In the S.R.Bommai vs Union of India case, the Supreme Court held secularism as a basic feature of the constitution.
Goa Civil Code
Goa is the only Indian state to have a UCC in the form of common family law. The Portuguese Civil Code that remains in force even today was introduced in the 19th century in Goa and wasn’t replaced after its liberation.
- The Uniform Civil Code in Goa is a progressive law that allows equal division of income and property between husband and wife and also between children (regardless of gender).
- Every birth, marriage and death have to be compulsorily registered. For divorce, there are several provisions.
- Muslims who have their marriages registered in Goa cannot practice polygamy or divorce through triple talaq.
- During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple.
- Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member.
- The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.
However, the code has certain drawbacks and is not strictly a uniform code. For example, Hindu men have the right to bigamy under specific circumstances mentioned in Codes of Usages and Customs of Gentile Hindus of Goa (if the wife fails to deliver a child by the age of 25, or if she fails to deliver a male child by the age of 30). For other communities, the law prohibits polygamy.
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.
The Way Forward for UCC: Gradual Change
India has a unique blend of codified personal laws of Hindus, Muslims, Christians, Parsis. There exists no uniform family-related law in a single statute book for all Indians which is acceptable to all religious communities who co-exist in India. However, a majority of them believe that UCC is definitely desirable and would go a long way in strengthening and consolidating the Indian nationhood. The differences of opinion are on its timing and the manner in which it should be realized.
Instead of using it as an emotive issue to gain political advantage, political and intellectual leaders should try to evolve a consensus. The question is not of minority protection, or even of national unity, it is simply one of treating each human person with dignity, something which personal laws have so far failed to do.
Source: Indian Express