Author:- Vishal Patidar
India is a land where several religions such as Hinduism, Islam, Buddhism, Jainism, Zoroastrianism, Christianity, Sikhism, and other faiths are practiced. India is a secular nation. It is mentioned in our Constitution and was added to the preamble after the passage of the 42nd Amendment in 1976. The word “secular” means that the government does not have an official religion of the state and that citizens will not be discriminated against because of their religious beliefs. All the citizens enjoy the freedom to follow any religion. This right is provided by the constitution of the country under Article 25 to Article 28. Being a multi-religion country, various personal laws govern these religions.
The bone of contention is that every religion having its law brings certain differences and discrepancies in the respective personal laws. There are a lot of religious practices in the respective religions which are so repressive that they defy the provision of the constitution of the country. Many personal laws even deny certain rights to the followers of that religion. To address all of these issues concerning personal laws, our leaders always make one recommendation when bringing the UCC, which refers to the codification of similar personal laws for every religion in the country. The framers of the constitution have also provided a scope for the UCC when they mentioned in Article 44 of the constitution that “The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. Let us now examine the viability of bringing the UCC through this paper.
The Need for a Uniform Civil Code
The need for a Uniform Civil Code is justified for a variety of reasons. Almost every country in the world has a civil code that applies to all of its residents. The fundamental concept behind the development of a UCC is to eliminate religious discrimination. Even though it is the twenty-first century, there is still a need to offer equal status to all residents, foster gender equality, collect the thoughts of the youth, have national integration, and so on. The uniform civil code is required to apply and facilitate all of these issues.
We are all very much aware that women’s rights are restricted mainly by religious law, whether Hindu or Muslim. A classic example was the practice of triple talaq. When it comes to succession and inheritance, men are often given priority. Normally, men are seen as the shareholders and rulers of their families, communities, and societies. Women, on the other hand, are never allowed to stand up for themselves, and as a result, they are constantly dominated. The adoption of a uniform civil code would eliminate the distinction between men and women.
Secondly, in India, 55 per cent of the population is under the age of 25. A society in which half of the population is under the age of 25 requires modernization and individuality. The universal and evergreen principles of equality, mankind, and modernity must shape social attitudes and ambitions in society. The youth are still resistant to new and contemporary ideas as well as conservative solutions, but all they want is the one chance they have. Youth’s views on identifying with any religion must be given equal weight so that they can fully participate in the nation’s construction. Another reason is that the codification of the UCC will result in a more efficient legal system. This will eliminate the current confusion concerning various personal laws of different religions and will ensure the easy and effective working of the judiciary. As it is rightly said by the Apex court in the Shah Bano Case that Justice for all is a much more desirable means of conducting justice than justice on a case-by-case basis.
Constitution and the Uniform Civil Code
The primary issue is that if the framers of the Constitution wanted to implement the Uniform Civil Code in India, they should not have put it under Article 44 of the Constitution. Part IV (Art. 36-51) contains Directive Principles of State Policy, which are simply directives to the government. They are not compulsory to be pursued and aren’t enforceable in court. They are simply positive objectives on the part of the government that would aid in good governance.
The Indian Constitution’s Articles 25 and 26 grant religious freedom and the freedom to administer religious affairs, both of which are enforceable constitutional rights. “This means there is no official religion. A secular state must not discriminate against someone based on their religious beliefs. The secularisation process is intrinsically tied to the goal of a UCC in the same way as to cause and effect. According to Justice Jeevan Reddy, in the case of S.R. Bommai v. Union of India, “religion is a matter of personal faith that cannot be mixed with secular activities and can be governed by the state through legislation. In India, there is a principle of positive secularism, which differs from the doctrine of secularism embraced by the United States and European countries, in which the state and religion are separated by a wall.”
Article 44, which is not justiciable in the court, states, “the state shall make every effort to ensure that India has a uniform civil code.” The UCC is a process or legislation that regulates individuals in a uniform manner that does not discriminate based on religion or faith. As a new concept develops and becomes more widely known, several of the questions and critiques emerge. An important issue that emerged during the unification of personal laws was what the ingredients of the UCC would be. Because each religion’s laws contain distinct provisions, their unity would cause not only dissatisfaction but also animosity among the public. As a result, the Uniform Civil Code will need to introduce legislation that strikes a balance between the protection of basic rights and the religious principles of the country’s various communities. Marriage, divorce, and maintenance are examples of secular issues that can be regulated by legislation.
Arguments Against the Uniform Civil Code
Although the Uniform Civil Code is seen as a solution to a series of problems for the country at the same time, there are many justifications and points of view in opposition to the adoption of a Uniform Civil Code. A few among them are: –
Freedom of Religion vs. Uniform Civil Code: – The adoption of the UCC is opposed by the country’s minorities, who consider Article 25 as a defence. Article 25 of the Constitution guarantees religious freedom, which is a fundamental right. An individual is free to practice and spread his or her religion under this article. Religious practices that are prevalent in community laws continue to be practised. These communities claim that Article 25’s right to freedom of faith requires them to manage personal laws according to the laws of their culture. There is a lack of understanding among people that secular activities are separate from Article 25 and divorce, adoption, and succession are all legal issues that cannot be dealt with by religion. For better applicability of constitutional laws, these problems may be differentiated by religion.
Insecurity Amongst Minority: The presence of insecurities in the minds of India’s minority community is a major challenge in enforcing the UCC. The minority is afraid of having majoritarian personal laws imposed on them. The belief in UCC is that minorities should be subjected to majority rule. In certain cases, minorities’ vulnerability is evident. The threat of criminalizing triple talaq has caused widespread anger in the Muslim world.
Choosing between good and bad: – The most important question which is posed by people is what role does the government play in determining which laws need to be reformed and which laws are perfectly compatible with UCC’s skeleton? They are asking The current government needs to devise a code that is appropriate to all cultures to completely enforce a workable UCC, but this is an ambitious task that should be left to the imagination. All the religions are adamantly opposed to any interference with their laws, no matter how minor, and the government intends to abolish it entirely. The introduction of UCC would aim to bring about a long-overdue improvement and put an end to a great deal of uncertainty. But, due to some of the drawbacks it provides, it has proved difficult to implement. The country needs time to get well versed with the idea of the UCC so that it can achieve the desired result.
Role of Judiciary
The Indian Judiciary has always shown its inclination towards the codification of a Uniform Civil Code. The debate for a uniform civil code came before the Supreme Court in the case of Mohammad Ahmed Khan vs. Shah Bano Begum. This was the first case where the court directed the parliament to formulate a Common Code. It was a case involving a Muslim spouse’s obligation to support his separated wife after the iddat period if she is unable to support herself, and the Supreme Court ruled that Section 125 Cr. P. C, which imposes such responsibility on all husbands, is secular and applies to all faiths. The court in its judgment also categorically stated that it is unfortunate that article 44 of the Indian Constitution has remained as a dead letter. The state which has the legislative competence to bring about a Uniform Civil Code has not made any effort to do so. The court in its judgment also mentions that it is a difficult task to bring the people of various religious faiths to an equal footing, but there has to be a beginning to achieve a goal, otherwise, there would be no meaning of the Constitution.
This was again restated in the case of Jorden Diebgdeh vs. S.S. Chopra. The court held that there has to be legislative intervention made to formulate a Uniform Code for Marriage as well as for divorce.
Ten years later, in the case of Sarala Mudgal vs. Union of India, the Supreme Court once again advocated for the enactment of UCC. The Apex Court ruled in this case that a Hindu man converting to the Muslim faith solely for the intention of performing bigamy violates Indian Penal Code Section 494. The court has ruled such marriages to be bigamous and invalid. The court further said that the incident of a man converting to Islam for the sake of getting married for the second time even when they are already married cannot be stopped until there is a proper Uniform Civil Code implemented across the country.
A slight shift in the judicial trend had to be seen after the case of Sarala Mudgal. In the case of Pannalal Bansilal vs. State of Andhra Pradesh, the court stated that while the Uniform Civil Code is highly desirable, it may not be a wise move to implement it all at once because it may have ramifications for the country’s integrity and unity. The court further stated that in a country like India, the act of making uniform law should be done slowly and not at once. The court further suggested that the Law Commission should be given the task of having a consultation with the minority commission to examine the issues and try to formulate comprehensive legislation. In recent years, the courts have worked to eliminate gender discriminatory practices that are disguised as religious practices through judicial activism. This can be seen in the recent case of Shayara Bano vs. Union of India where the Supreme Court directed to examine the practices such as the triple talaq which was practised in the Muslim personal law and termed them as opposing to public morals.
Law Commission Report on Uniform Civil Court
Recently, the law commission of India has made its observation concerning the Uniform Civil Code and submitted a report about the possibilities and viability of its implementation. The commission in its observation said that in a robust democracy, diversity does not necessarily mean discrimination. Rather, we should try to bring uniformity in the personal laws and make sure that no wrong treatment should be done through personal laws. The discriminatory practice in a particular religion cannot hide behind the faith to gain legitimacy.
The commission provided some suggestions for further actions that can be taken to address the current discrepancies. The commission emphasizes the importance of balancing the country’s diversity with universal human rights arguments. Firstly, the law commission talked about the codification of the personal laws of a different religion. They believed that it would help to bring to light the stereotypes and prejudices of all religions. They can be judged based on fundamental rights in the Constitution. The codification of personal laws will bring us to specific universal principles. They further suggested the criminalization of polygamy and this should be applied to every community. This creates a basis for gender discrimination as the only male member is allowed to have multiple wives. After the report of the law commission, it seems that the uniform civil code will have to wait for some more time to be implemented.
Once, India’s first female Chief Justice of the High Court, Justice Leila Seth, said, “If we can’t give them all the rights in one go, let us progress little by little, but let us not be stagnant. We should try to move towards gender-just laws and a uniform civil code.”
It is correct to infer that a secular India requires a uniform Civil Code, but it is not appropriate to impose any Uniform Civil Code on a population that is resistant to change. The majority of people are not willing to set aside religious traditions in favour of secular rules. Also, there is a lack of understanding of the Uniform Civil Code among the general public, particularly among minorities. True, they have no idea what the code means or how extensive it is. They believe that if the law is passed, they will be forced to follow the majority’s religious practices, and thereby will lose their identity.
To successfully implement the Uniform Civil Code, we must ensure improvement in literacy level and awareness on various socio-political issues and increased religious and social mobility. The final goal of reforming the Uniform Civil Code should be to ensure gender equality, national unity, and honesty, as well as justice for men and women. While introducing the UCC around the nation, we must keep in mind that the issues of minority religious communities, such as insecurity and total loss of identity within Indian society, must be addressed. It’s because a Uniform Civil Code can’t be enacted effectively unless and until it has the support and acceptance of all related stakeholders and communities. The government has a great responsibility to fit into the expectations of every religious community. At the same time, there must be an effort made to sensitize the people of the country about the Uniform Civil Code only then must the Code be implemented.
Vishal Patidar is a first-year law student at Narsee Monjee Institute of Management Studies (NMIMS) Navi Mumbai campus,
currently pursuing a BA.LL. B (Hons).