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Uniform Civil Code

Uniform Civil Code in India: An Utmost Need?

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What is the Uniform Civil Code?

Uniform Civil Code is basically the proposal for the codification of various personal laws prevailing in India. Other Civil and Criminal laws such as the Indian Penal Code, Indian evidence act, the law of contract, etc are uniformly codified and are implemented on each and every citizen fairly and evenly. 

However, personal laws like laws regarding marriage, divorce, succession, adoption are regulated by specific religious communities, i.e, Hindu marriage act 1955 for Hindus and Sunni-shariyat laws for Muslims.

Thus, the unification of personal laws means uniformly codify these personal laws for every citizen irrespective of their religions or communities.

Under Constitution of India

The Constitution of India provides in Article 441
44. Uniform civil code for the citizens- The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”

According to the Constitution Of India, it is the duty of the state to ensure the implementation of a uniform civil code as a part of their directive principles policy to protect the basic constitutional and fundamental rights of the citizens.


Background-

India has always been a multi-religious and multilingual country, yet with a distinction presenting unity in diversity. However, India also has an interesting history of religious tensions and conflicts besides a peculiar characteristic of harmony. 

Under the rule of East India Company also, Governor Generals like Lord William Bentick also tried to suppress certain customs performed by some specific religious communities like Hinduism at that time believed in the practice of Sati’, the prescribed death of the widow on her husband’s funeral pyre, bypassing laws.

Lex-Loci Report of October 1840

This controversy regarding the unification of laws dates back to British India, the colonial period. In the 1840’s Lex-Loci report, the British emphasized on the importance and necessity of codification of laws like laws relating to crimes, evidence, contracts, etc. But they decided to exclude the scope of personal laws in this report as they understood that these laws are governed by specific religious communities, their customs, and their religious beliefs. These laws were applied in civil courts while dealing with people of the same religion, and the state would interfere only in exceptional cases.

Some Legislative Reforms during the Colonial Period

In various personal laws, women were deprived of certain basic rights and thus, their condition, especially the condition of Hindu widows or daughters was very low. Hence, Britishers and other social reformers tried to reform these Hindu laws by legislative processes like passing the acts like Hindu widow remarriage act of 1856, the Married women’s property act of 1923, etc.

The special marriage act was also enacted in 1872 giving citizens a choice of civil marriage, however, it was applicable to only those who renounced their religion or were non-Hindus. But later, it was implemented with an amendment called Special Marriage (amendment) act, 1923 which allowed Hindus, Buddhists, Sikhs, and Jains to marry either under their personal laws or under the civil act without renouncing the religion.

Next, an important step by Britishers was the Hindu women’s right to property act,1937, which tried to assure women’s rights, it ceased the practice of deceased husband’s passing on his co-sharers, instead, the act gave similar rights to widows which the husband had when he was alive.

The legislation caused actively growing debates between men and women at that time. Hence, there was a committee formed in 1941 called ‘The Hindu Law Committee’ to look into extensive legislation covering all laws for Hindus. It was reinstituted in 1944 under the chairmanship of Sir B.N. Rau. Committee favored the Uniform Civil Code, which would give equal rights to women in the modern times of society and gave its report in 1947 to the Indian Parliament. 

Post Independence (1947) 

The nation got independence in 1947. The report given by Sir B.N. Rau’s committee was discussed and reviewed in 1952. It stated that India should have a Uniform Civil Code in the form of a Hindu code Bill, which dealt with all specific Hindus laws, i.e, marriage, divorce, succession, adoption, etc. As a law minister, B.R. Ambedkar was responsible to present the details of the bill, he himself recommended the uniform civil code but due to his various attacks on Hindu laws made him unlikely and Hindu code bill received huge criticism.

Hence, a lesser version of the Hindu code bill was implemented in the form of four separate acts, i.e, Hindu marriage act2, Hindu succession act3, Hindu minority, and guardianship act4, Hindu adoptions, and maintenance act5

Role Of Judiciary

Mohammad Ahmed Khan v. Shah Bano Case6

This was the first time in India when the supreme court tried to implement a uniform civil code in India. In the given case, there was a woman, 73 years old, who sought maintenance from her husband when he divorced her after 40 years of their marriage by way of ‘triple talaq’, a practice of unilateral divorce in Muslim personal laws.

Shah Bano filed the case claiming maintenance under section 125 of the code of criminal procedure7, which applied to every citizen irrespective of their religion. Initially, she was granted maintenance from the local court, however, her husband, being a lawyer himself challenged the decision and took it to the Supreme Court, in confidence that he had completed all his obligations under Islamic laws. But, the Supreme Court ruled in favor of the wife, allowing her maintenance under section 125 of the code of criminal procedure. Further, the chief justice, Y.V. Chandrachud, observed that “A common civil code will help the cause of national integration by removing disparate loyalties to the law which have conflicting ideologies”. 

Soon after this decision, there were nationwide agitations, meetings, and discussions. The government of Rajiv Gandhi lost the local elections due to their endorsement of the supreme court’s decision. The orthodox Muslim community felt like they need to preserve their culture and religion as according to them, applying a uniform civil code will mean applying Hindu laws to every Indian uniformly.

Hence, the Rajiv Gandhi government overturned the decision of the Shah Bano case by way of the Muslim Women (Right to Protection on Divorce) Act, 1986, which made section 125 of the criminal procedure code inapplicable to Muslim women. The explanation given for implementing this act was that the supreme court had merely given the idea of uniform law, which does not make it bound for the government to interfere in personal laws. This drastic reversal of the Muslim women law heavily hampered the women’s movement in the 1980s.

Sarla Mudgal v. UOI8

In this particular case, a Hindu husband married according to customs and practices of the Hindu marriage act, 1955, got converted into Islamic religion, to marry another Muslim woman as Muslim personal laws allowed polygamy. But, the court held that a Hindu marriage solemnized under Hindu laws can only be dissolved under certain provisions given by the Hindu marriage act, 1955, and if he marries again even within the Islam community, he could be prosecuted for bigamy under section 494 of Indian Penal Code9

The Supreme Court directed the Prime Minister of India, to take a fresh look at Article 44. Justice Kuldip Singh held that since 1950, a no. of governments had come and gone but they had failed to implement a constitutional mandate under Article 44 of the constitution. Consequently, the problem has arisen that many Hindus were converting their religion into Islam as it permits four wives instead of one, allowed under Hindu law. Hence, with the uniform law for all the religious communities, no person could escape from the provisions of the given law.

John Vallamattom v. Union of India Case10

The supreme court gave another reminder to the government of India for the implementation of a uniform civil code throughout the nation because disparities between different religious communities were creating discriminations among the people of the country.

In the given case, a priest from Kerala filed a writ petition challenging the constitutional validity of section 118 of the Indian succession act11, saying that the Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will. The bench including Chief Justice of India V.N. Khare declared the section to be unconstitutional and struck it down.  

Chief Justice Khare stated that “We would like to State that Article 44 provides that the State shall endeavor to secure for all citizens a uniform civil code throughout the territory of India It is a matter of great regret 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. Common civil code will help the cause of national integration by removing the contradictions based on ideologies”

Thus, from the above instances, it can easily be inferred that the supreme court has directed on many occasions to the government of India to implement a uniform civil code mentioned in article 44 of the constitution of India, yet, it is still just a directive principle of state policy with no actual or strict implementation. 

Constitution and Uniform Civil Code

The preamble of the constitution declares India to be a Sovereign, Socialist, Secular, Democratic Republic. 

The term ‘Secularism’ means a state which has no religion of its own as recognized religion of the state. It treats all religions equally. The state is concerned with relations between man and man, not with relations of man with God.

Under the Constitution of India, Articles 25 to 28 guarantees the right to freedom of religion in India12. Article 25 provides for ‘Freedom of conscience and free profession, practice and propagation of religion’ but this right is subjected to public order, morality and health and to the other provisions of part III (Fundamental Rights) of the Constitution of India. The protection of Articles 25 and 26 is not limited to matters of doctrine of belief. It extends to acts done in pursuance of religion and, therefore, contains a guarantee for ritual and observations, ceremonies and modes of worship, which are the integral parts of religion.13

It could be added that Uniform Civil Code is not an opposition to ‘secularism’ or violative of articles 25 to 28. It just provides that laws regarding marriage, divorce, adoption etc.should be the same and uniform for every religious community of a nation. Uniform civil code only aims to increase national integration and better uniformity in-laws and their implementation.

Recent developments in the implementation of UCC

The biggest example of UCC for India can be seen in Goa, called Goa Family Law14. It is based on the Portuguese Civil Code 1867, enacted in Goa in 1870.

The Goa UCC model includes-

  • Compulsory registration of every birth, death, and marriage in Goa
  • Strict provisions regarding divorces
  • Muslims residing in Goa cannot practice polygamy or ‘triple talaq’15
  • Equal division of property amongst the couple in case of divorce and if one dies, the ownership is retained by the other one. ​

During the month of August 2018, the Law Commission submitted a report “Reform of Family Law”. The report presents us with the diversity of Indian culture and how the weaker sections of the society must not be “dis-privileged” in the process.

Also, after the ban on ‘Triple talaq’ and subduing the status of Jammu and Kashmir under article 37014, the next big step by Modi’s Government15 could be the implementation of the Uniform Civil Code, which is already the need of the hour.

Need for UCC in India

The Government of India strongly needs to implement UCC in India for making it a progressive and integrated nation. There have been a number of petitions regarding the urgent need to the Uniform Civil Code in order to promote national integration as well as gender justice, equality & dignity of women.18

Following are the key-points which are achievable through the implementation of UCC in India-

Equal status to all citizens

Uniform Civil code implies that a uniformly balanced law should prevail in India which will be free from any biases of religion, caste, race, community, etc. It will definitely promote equality and secularism among citizens.

Promoting Gender equality and justice

Almost every personal law in India is preferential towards men than women. All these laws are discriminatory for women as they mostly have lesser rights in successions or inheritances etc. Therefore, a uniform civil code applicable to every citizen irrespective of their sex will help in achieving gender quality.

National integration

All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are the same for all19. We can also observe that various judicial persons have also observed in their decisions that UCC will help in national integration in India.

Y.V. Chandrachud observed that “A common civil code will help the cause of national integration by removing disparate loyalties to the law which have conflicting ideologies”. Chief Justice Khare stated that “A common civil code will help the cause of national integration by removing the contradictions based on ideologies”

Turn down discriminatory personal laws

Existing personal laws are mainly based on the upper-class patriarchal imaginations of the society in all religions. The demand for UCC is normally made by aggrieved women as a substitute for existing personal laws as patriarchal orthodox people still deem the reforms in personal laws will destroy their sanctity and oppose it profusely.

Conclusion

Hence, from the above given all arguments and statements, It can be inferred that the Uniform Civil code is such a need for a widely diverse nation like India. However, I firmly think that its practical implementation could be totally voluntary initially, so as to make people comfortable with the idea as the personal laws of the different communities are in practice since always. Also, each community should be convinced that UCC is to bring reforms not suppress them and it will never intend to interfere with the rights, rituals, ceremonies or religious beliefs of a community. 

End-Notes

  1. Constitution Of India, Article 44- Uniform Civil Code
  2. Hindu marriage act, 1955 (25 of 1955)
  3. Hindu succession act, 1956 (30 of 1956)
  4.  Hindu minority and guardianship act, 1956 (32 of 1956)
  5. Hindu adoptions and maintenance act, 1956 (78 of 1956)
  6.  AIR 1985 SC 945; 1985 SCR (3) 844
  7.  The Code of Criminal Procedure, 1973, Section 125: Order for Maintenance of Wives, Children, and parents. 
  8. AIR 1995 SC 153
  9. The Indian Penal Code, (45 of 1860), Section 494: Marrying again during the lifetime of husband or wife.
  10.  John Vallamatton v. Union Of India, AIR 2003 SC 2902
  11. The Indian Succession Act, 1925, Section 118: Bequest to Religious or Charitable Uses.
  12. The Constitution of India, Part – III (Fundamental Rights), Articles 25 – 28: Right to Freedom of Religion
  13. Acharya Jagdishwaranand v. Commissioner of Police, AIR 1984 SC 512: 1984 SCR (1) 447
  14.  http://goaprintingpress.gov.in/downloads/1819/1819-29-SI-OG-0.pdf
  15. The practice of divorce permitted in Muslim personal laws
  16.  Constitution of India, Article 370- Temporary provisions with respect to the State of Jammu and Kashmir
  17.  Manifesto 2019 – English Final.cdr
  18. Scope of Development of Uniform Civil Code in India
  19. Uniform Civil Code (UCC): Pros and Cons in a nutshell – Clear IAS
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Anshika Singla

Student, Punjabi University, Patiala

Anshika Singla is a researcher, writer and always a learner. She is from Punjab. She is immensely interested in Constitutional law and Criminal law. She believes that a perfectly written article can change perspectives of people. For any clarifications, suggestions and feedback, contact her at anshikasingla513@gmail.com

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