BY:-Arun Shekhar Jawla

Abstract

The preamble in The Indian Constitutions mentions India as “Socialist, Secular, Democratic, Republic”.

It means diversity is the core of India, but having diversity in law is just unfair.

Article 14 mentions that every individual is in the same stand when we talk about the law of the land, but for a very long time, there has been a considerable gap between legislating and implementing them. The recent judgment on triple talaq suggests that the issues that Muslim women faced were as old as one can remember, and the actions that were required to be taken were not taken on time.

In everyone’s mind- India is the rule of the land, then why are there different rules for different religious communities? Approx. 140 crore people live in India. We accept so much diversity, then why not a single rule for all these people too tied them up together to unite everybody in a true sense. Most of the Fundamental Rights are available to everyone, not just citizens of the country but are also for any person inhabiting the territory of India.

Meaning of The Uniform Civil Code

The Uniform Civil Code is one of the most controversial issues of independent India. The Uniform Civil Code essentially refers to a set of common laws that governs personal matters such as Marriage, Divorce, Inheritance and Adoption of all individual living in the country irrespective of their religion. Sometimes, it can also be referred to as UCC. It seeks to replace personal laws based on the scriptures and customs of every religion in India with a standard set of rules governing every citizen of the country.

Presently, India is governed by personal laws which regulate these different aspects of a different religion. These personal laws are contrary to each other in a different set of circumstances. UCC is meant to resolve these inconsistencies of personal laws by formulating universal laws for every religion. At least Hindu, Christians, Parsi have codified laws, the same can’t be said in Muslim laws. They follow the religious texts, customs and traditions of their Prophet. Some aspects of their religion are expressly recognized through statutes such as the Dissolution of Muslim Marriage Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986, The Muslim Personal Law (Shariat) Application Act, 1937.

Beginning of the Uniform Civil Code

Jawahar Lal Nehru [Prime Minister], one of the famous personality of the 20^th century, was an adamant supporter of the Uniform Civil Code. He wanted to bring this uniform code ever since India got its independence. But Nehru faced tremendous opposition against him from both sides, even from within his party. He had to settle with Hindu Code in its place. In 1956, the Indian Parliament passed Hindu Code Bill with significant opposition. The struggle to bring UCC into life has been very long. Demand for UCC was first put forward by women activists at the beginning of the twentieth century. Its objective was to bring equality, secularism and improvement of women’s rights in society.

In 1985, The Judgement of Shah Bano Case^[i] shocked the whole country. It created such chaos, panic and caused tremors that were even felt in the Parliament. In this case, it was held by the SC that Shah Bano, a Muslim woman, should get maintenance from her ex-spouse even after the iddat period under Section 125 of CrPC. The court said that CrPC takes priority over any personal laws. The court believed that these personal laws were first framed before independence, mainly for creating division between Hindu and Muslim people. It was fear of community leaders and that refrained the Britishers from further interfering in the personal matters of Muslim people. It was this landmark case which first started the fight for UCC in India.

The demand for a uniform civil code was the objective of women’s rights, equality, and secularism. Till independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows.

What does the Indian constitution say about Uniform Civil Code?

Though demand for a uniform civil code was made in the constituent assembly by Prime Minister Jawahar Lal Nehru and his supporters and women activists, it was rejected by most of the assembly, but he kept on his demand. Finally, they had to accept the compromise of it being added to the Directive Principles because of heavy opposition from his supporters.

Article 44^[ii] of the Indian Constitution states that “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” However, it must be kept in mind that Article 37 ^[iii]mentions that Directive Principles of The State Policy are not enforceable by any court of law. Albeit, at the same time, they are fundamental in the country’s governance, and it shall be the State’s duty to apply these principles in making laws.

• The issue of the Uniform Civil Code has been raised in SC on numerous occasion, and it is mainly to highlight the unresponsive attitude of the executive and the legislature in the execution of such directive of the Supreme Court.

How has Supreme Court has handled the issue of UCC?

Supreme Court has always dwelt on the issue of the uniform civil code in most of its judgement regarding it. In most cases, SC has favoured common law for all its citizens and asked Parliament to ensure the implementation of UCC. It has also remained careful of its limits under the constitution as it has been refrained from issuing any affirmatory directives to the government regarding this matter as it is the right of Parliament to make laws.

In Shah Bano Case, the court has said, “It is a matter of regret that Article 44 has remained a dead letter… The common civil code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is for the State, which is charged with the duty of securing a uniform civil code and it has legislative competence to do so.”

In Sarla Mudgal Case (1995)^[iv], the Supreme Court again highlighted the need for Uniform Civil Code. The case was regarding the matter of Bigamy and its disputes with marriage within different personal laws. The court underlined that “until UCC was enacted for all the citizens of the country, there will be always a loophole because different faiths had different beliefs, and naturally due to different beliefs and practices of communities, there will be a conflict” SC also advised the PM to look into the matter and try to implement it throughout India as it is working in Goa perfectly.

In John Vallamattom Case (2003)^[v]–

The Supreme court stated that a UCC would “help the cause of national integration by removing all contradictions based on ideologies”.

However, in 2015, the top court was divided and unclear regarding this subject matter once again. In Oct. 2015, the SC renewed its discussion over the implementation of the UCC. The government was notified on this full-blown division over the matter and  the central government was asked for its plan regarding UCC.

In December 2015, however, another bench in the Supreme Court turned down a PIL for a UCC, saying that its the SC’s observations that enacting of UCC would be only possible in the “realm of hope and expectations” and directive to take action in this matter can’t be issued to the government.

In 2019, the SC again expressed its dissatisfaction over lack of action by central government over UCC, said: “Whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard.”

Latest Developments

It would be wrong to ignore the opposition views regarding the UCC. Religious activist groups are the most dedicated and active in opposition to UCC. They believe that they are safeguarding the traditions from parasitic laws such as UCC. Then comes the fundamentalists, who believe that UCC will be the end of personal laws and a deadly blow to the diversity in India.

The author’s opinion that these people who are opposing the UCC hides under the garb of culture and customs. All they want or interested in is maintaining the status quo to continue the class traditions of patriarchal dogma and remain in the position of power. They want to control people in the name of religion and enjoy a political position by exploiting people and emotional blackmail.

How has the present government dealt with UCC?

Even today’s BJP-led government has promised to bring UCC in its manifesto^[vi]. Implementation of UCC has been one long struggle from the time of Bhartiya Jana Sanga (1951). BJP considers the introduction of UCC to be the core of their ideological issues.

Narendra Modi has acknowledged during an interview (in Urdu weekly ‘Nai Duniya’ published in May 2014) that his government will make efforts to implement UCC and clarify that bringing common law doesn’t mean thrusting Hindu laws on all citizens. In the parliamentary debate of July 2014- Yogi Adityanath raised the question regarding the implementation of Article 44 of the constitution.  Ravi Shankar Prasad, Union law minister, replied that “a wide consultation of stakeholders would be required for further steps in this regard.”^[vii]

In June 2016, 21^st Law Commission was asked to examine all matter regarding implementing the UCC. The final report was submitted by the law commission on the issue of UCC in August 2018 in its consultation paper on “Reform of Family Law, 2018^[viii].“

The report stated that UCC- “neither necessary nor desirable at this stage” and further recommended to amend and codify the existing different personal laws and solve discrimination and inequality issues. This paper was the last report ever submitted by the 21^st Law Commission.

Indeed, the perspective appears to represent a nice balance between two distinct opinions. The recommendation will undoubtedly protect the dignity and diversity of our religions while also modifying their more repressive aspects to reflect the changing status quo. The problem with this strategy is that it takes years to pass and implement these amendments and reforms.^[ix]

Need of Uniform Civil Code

• 1. Promotion of Secularism– In India, we are living under the garb of selective secularism, which means that in some areas, we are secular and in others, we ignore. We need a uniform civil code that all citizens of India have to follow the same laws no matter what religion they belong to. It applies the same to everyone, whether they are Hindus or Muslims or Christians or Sikhs. That sounds fair and secular to me. It also needs to be kept in mind that UCC doesn’t mean limitation on particular religion and relaxation on another; it just means that every person will be treated the same.If India wants to become a real secular country, we need real secularism in the Uniform Civil Code.

• 2. Equality before the law– Presently, India’s laws based on particular religions mean that while Muslims are allowed to commit Bigamy in India, a Hindu or a Christian, or a Parsi will be prosecuted for doing the same because our personal doesn’t allow for it. It doesn’t sound like equality but more like nepotism to me. Laws regarding marriage, inheritance, family, land etc., should be the same for all Indians throughout the country. Uniform Civil Code is the only way to ensure that all Indians are treated the same and not based on religious merits.

• 3. Upliftment of Rights to the Women- India is a Patriarchal society. The government is trying so hard to fill up the gap between men and women; still, it is lagging. A uniform civil code will help in the upliftment and improving the condition of women throughout the country. By allowing old personal laws to continue, we condemn all Indian women to oppression, mistreatment and misogynistic life.

UCC will ensure a change in society by equal rights and opportunities and elimination of inequality and injustices. Age-old traditions and laws will have no place in today’s society, where women are to be treated fairly and given equal rights in marriage, inheritance, adoption, maintenance, etc. 

• 4. Step towards becoming Developed Nation- India is a developing nation. For India to become a developed nation, it needs to take some tough decision and have more secular policies. The Uniform Civil code is the bedrock of all developed country. It shows that the nation has moved far beyond caste and religious politics, and in fact, it is a modern progressive nation. However, India is neither modern nor traditional in today’s world.

We are socially and culturally degrading and in urgent need of change. A uniform civil code is a perfect solution that one can ask for. It will help society move forward and help India in achieving its goal of becoming a developed nation.

A uniform civil code is a way to show the world that we are a nation of unity and solidarity. It will help individuals belonging to different religions and denominations grow and develop into a more sophisticated society. For all this to be possible, we need religious ideologies to merge and culminate into a common law and unity as its principles will adhere to secularism’s true spirit. Our forefather of the constitution also saw this dream, but it remains unrealised after more than 70 years of independence.

Having a uniform civil code is to treat every individual equally and have fair and predictable laws to protect everyone as the same. Having a uniform civil code would mean placing a set of rules that would govern the personal matters of all people of India irrespective of their religion, which is the foundation of secularism. This will end gross gender discrimination and parity on religious grounds, strengthen society’s secular fabric, and promote unity and equality. The UCC will contain uniform laws that will apply to everyone based on social justice and gender equality in family matters.

India has set before itself the ideal of a secular society, and in that context, achievement of a uniform civil code becomes all the more desirable; such a code will do away with diversity in matrimonial laws, simplify the Indian legal system and make Indian society more homogeneous. It will create a national identity and will help in containing fissiparous tendencies in the country.

Merits of Uniform Civil Code

Let’s see what would be the benefits of UCC is enacted and enforced

• It would work as an accelerant towards national integration.
• It will end the overlapping and loopholes in the personal law.
• It will promote the national spirit, brotherhood and a true sense of unity.
• India would emerge as a superpower on the global stage, and we will finally defeat the dividing and communal forces.
• Judiciary will have a lesser burden than earlier because there will be fewer cases due to overlapping personal laws.

The drawback for Uniform Civil Code

Question will be raised such as:

• Who gives the government the authority to interfere in the religious matter of one religion?
• UCC is mentioned under the Directive Principle of the State Policy, which is neither enforceable non-justiciable in any court of law.
• The right to free profession, practice and propagation of religion is a fundamental right that would be violated if UCC comes into existence.

1. India’s diversity is unique and huge- It’s not a child’s play when it comes to the matter of religious faith. People of India are fanatics and tough to convenience. People are nurtured and conditioned around their religion. Hence, it becomes a cumbersome task to implement the Uniform Civil Code due to our nation’s vast diversity.

Not just religious difference but also cultural differences which differs from state-to-state/ community-to-community. It would be next to impossible to unify personal law without strong opposition or hindrance.

2. Against the principle of non-interference- Article 25-28: Right to Freedom of Religion is a fundamental rights provided under India’s constitution, which provides for the right to freedom of religion of individual’s choice. If such uniform laws are codified, then the scope of the freedom of religion will be diminished

3. Issue of Acceptance- The people from different communities are not willing to adopt the secular laws separated from personal laws. So, it is not fair to impose the traditions of one group upon other groups. The focus should be on other less contentious issues that Indian society is facing.

4. Who will be the deciding authority?- People from different religion will find it hard to obey a command or order issued. It has been seen earlier during the introduction Hindu code. Courts will have to jump into the middle of this ruckus. It has to be done through a court decree; then, only people might find the courage to follow such laws.

• Even though there are so many gaps and loopholes in the present laws, a significant fraction is still governed by the same policies through general laws. Such as the Prohibition of Child Marriage Act 2006, POCSO Act, etc
  

The international scenario on Uniform Civil Code

Israel, Japan, France and Russia are developed today because of their unity and brotherhood, which we Indian are yet to achieve. Mostly, all developed countries have uniform civil code or uniform laws regarding family matters. Western nations have secular laws that apply uniformly, equally, and without discrimination based on religion, gender, caste, or place of birth to all its citizens. Even Islamic countries have a uniformity in their laws. Shariah Law is applied to all its citizens. Even the people of other religions are expected to follow the same laws, rules, or guidelines as the Prophet mentions.

Conclusion:

Finally, I would like to conclude that citizens of various religions and denominations follow different estate and matrimonial laws, which isn’t just an absolute disgrace to the nation’s unity. Still, also it makes one imagine whether we are a sovereign, secular,  democratic country, where people live at the whims and fancies of mullahs, bishops, and pandits.

I am a firm believer in the crusade to adopt the UCC and to harmonize personal laws. I support it not out of any personal bias but because it is a pressing necessity. It is past time for India to have a unified legal framework for marriage, divorce, succession, inheritance, and maintenance. For a country where secularism is highly valued, a uniform civil code is necessary.

Reference

---

[i] https://www.hindustantimes.com/india-news/has-the-supreme-court-set-the-ball-rolling-for-a-uniform-civil-code-101615802810671.html

[ii] https://www.drishtiias.com/daily-updates/daily-news-editorials/uniform-civil-code-1

[iii] https://lawrato.com/indian-kanoon/constitution-of-india/article-37

[iv] https://lawlex.org/lex-bulletin/case-summary-sarla-mudgal-president-kalyani-and-ors-vs-union-of-india-uoi-and-ors/20973

[v] https://www.lawyerservices.in/John-Vallamattom-and-Another-Versus-Union-of-India-2003-07-21

[vi] https://timesofindia.indiatimes.com/realtime/BJP_Election_2019_english.pdf

[vii] https://indianexpress.com/article/india/india-others/centre-hints-its-willing-to-bring-in-uniform-civil-code/

[viii] https://lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf

[ix] https://blog.ipleaders.in/one-nation-one-rule-uniform-civil-code/#Legally_codified_provision_of_the_Uniform_Civil_Code

Case Refereed

Mohd. Ahmed Khan v. Shah Bano Begum And Ors AIR 1985 (1) SCALE 767

Sarla Mudgal, President, Kalyani and Ors. Vs. Union of India (UOI) and Ors. AIR 1995 SC 1531

John Vallamattom v Union of India, (2003) 6 SCC 611

Book Refereed

Dr. J. N. Pandey, Constitutional Law of India, Pg.492-495 (56^th Edition- 2019)

M Laxmikanth, Indian Polity, Ch-8 (6^th Edition-2004)