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UNIFORM CIVIL CODE: ONE NATION ONE LAW

Uniform Civil Code: The feeling of oneness?

INTRODUCTION:

Uniform Civil Code is basically the proposal for codification of various personal laws prevailing in India. Other Civil and Criminal laws such Indian penal Code, Indian evidence act, 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 1956 for Hindus and Sunni-Shariyat laws for Muslims. Thus, uniform civil code aims to uniformly codify these personal laws for every citizen irrespective of their religions or communities.

What does the provision of Uniform Civil Code say in Constitution of India?

Constitution of India provides in Article 441
“ 44. Uniform civil code for the citizens- The State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India.”
According to Constitution Of India,
It is the duty of the state to ensure implementation of uniform civil code as a part of their
directive principles policy to protect 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, by passing laws.2

India and Uniform Civil Code

Lex-Loci Report of October 1840:

This controversy regarding unification of laws dates back to British India, the colonial period. In 1840’s Lex-Loci report, British emphasised on importance and necessity of codification of laws like laws relating to crimes, evidences, 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 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, Married women’s property act of 1923 etc. The special marriage act was also enacted in 1872 giving citizens a choice of a 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 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-shares, 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 favoured Uniform Civil Code, which would give equal rights to women in the modern times of society and gave its report in 1947 to Indian Parliament.

Post Independence (1947):

Nation got independence in 1947. The report given by Sir B.N. Rau 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 Hindu 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 a huge criticism. Hence, lesser version of Hindu code bill was implemented in the form of four separate acts, i.e, Hindu marriage act3, Hindu succession act4, Hindu minority and guardianship act5, Hindu adoptions and maintenance act6.

UCC and uniformity

ROLE OF JUDICIARY WITH REGARDS TO UNIFORM CIVIL CODE:

  1. Mohammad Ahmed Khan v. Shah Bano Case7
    This was the first time in India, when the supreme court tried to implement 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 Muslims personal laws. Shah Bano filed the case claiming maintenance under section 125 of code of criminal procedure8 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 a confidence that he had completed all his obligations under islamic laws. But, the Supreme Court ruled in favour of the wife, allowing her
    maintenance under the section 125 of 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 law which have conflicting ideologies”. Soon after this decision, there were nationwide agitations, meetings and discussions. 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 uniform civil code will mean to apply hindu laws to every Indian uniformly. Hence, Rajiv Gandhi government overturned the decision of Shah Bano case by way of Muslim Women (Right to Protection on Divorce) Act, 1986 , which made section 125 of criminal9 procedure code inapplicable to Muslim women. Explanation given for implementing this act 10 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 1980s.

2. Sarla Mudgal v. UOI11
In this particular case, a Hindu husband married according to customs and practices of Hindu marriage act, 1955, got converted into islamic religion, to marry another Muslim women as Muslim personal laws allowed polygamy. But, the court held that a Hindu marriage solemnised under hindu laws can only be dissolved under certain provisions given by hindu marriage act12 1955, and if he marries again even within islam community, he could be prosecuted for bigamy under section 494 of Indian Penal Code13 . The supreme court directed the Prime Minister of India, to take a fresh look on Article 44. Justice Kuldip Singh held that since 1950, a no. of governments had come and gone but they14 had failed to implement constitutional mandate under article 44 of the constitution.15 Consequently, the problem has arised 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.

3. John Vallamattom v. Union of India Case16
The supreme court gave another reminder to the government of India for 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 Indian succession act , saying that the Act was discriminatory against the Christians as it17 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 section18 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 endeavour 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. A common civil code will help the cause of national integration by removing the contradictions based on
ideologies”19. 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 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.

What does the Constitution say about it?

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 recognised religion of the state. It treats all religions equally. State is concerned with relations between man and man, not with relations of man with God.
Under Constitution of India, Articles 25 to 28 guarantees Right to freedom of Religion in India20. 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.21 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 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 IMPLEMENTATION OF UNIFORM CIVIL CODE:

The biggest example can of UCC for India can be seen in Goa, called as Goa Family Law22. It is based on 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’23

• 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 37024, the next big step by Modi’s Government25 could be the implementation of Uniform Civil Code, which is already the need of the hour.

NEED FOR UNIFORM CIVIL CODE 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 women26. Following are the key-points which are achievable through 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 the 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 all27. 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 law which have conflicting ideologies”28. Chief Justice Khare stated that, “ A common civil code will help the cause of national
integration by removing the contradictions based on ideologies”29
● 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 of 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.

Do we need it?

CONCLUSION:

Hence, from the above given all arguments and statements, It can be inferred that 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.

Reference:

  1. Of India, Article 44- Uniform Civil Code
  2. Bengal sati regulation act, 1829
  3. Hindu marriage act, 1955 (25 of 1955)
  4. Hindu succession act, 1956 (30 of 1956)
  5. Hindu minority and guardianship act, 1956 (32 of 1956)
  6. Hindu adoptions and maintenance act, 1956 (78 of 1956)
  7. AIR 1985 SC 945; 1985 SCR (3) 844
  8. The Code of Criminal Procedure, 1973, Section 125: Order for Maintenance of Wives, Children and parents.
  9. The Muslim Women (Protection of Rights on Divorce) Act, 1986 was a landmark legislation passed by the Parliament of India in 1986 to allegedly protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands.
  10. Supra note 8
  11. AIR 1995 SC 153
  12. Hindu marriage act, 1955, section 13- ‘Divorce’
  13. The Indian Penal Code, (45 of 1860), Section 494: Marrying again during the lifetime of husband or wife.
  14. Supra note 11
  15. Supra note 1
  16. John Vallamatton v. Union Of India, AIR 2003 SC 2902
  17. The Indian Succession Act, 1925, Section 118: Bequest to Religious or Charitable Uses.
  18. Supra note 17
  19. Supra note 16
  20. The Constitution of India, Part – III (Fundamental Rights), Articles 25 – 28: Right to Freedom of Religion
  21. Acharya Jagdishwaranand v. Commissioner of Police, AIR 1984 SC 512: 1984 SCR (1) 447
  22. http://goaprintingpress.gov.in/downloads/1819/1819-29-SI-OG-0.pdf
  23. Practice of divorce permitted in Muslim personal laws
  24. Constitution of india, Article 370- Temporary provisions with respect to the State of jammu and kashmir
  25. https://images.indianexpress.com/2019/04/bjp-election-2019-english.pdf
  26. https://www.indialegallive.com/top-news-of-the-day/news/scope-of-development-of-uniform-civil-code-in-india/
  27. https://www.clearias.com/uniform-civil-code-ucc/
  28. Supra note 7
  29. Supra note 16

Written by: Anshika Singla

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Is Uniform Civil Code a step towards unity?

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