A CONTEMPORARY STUDY ON THE UNIFORM CIVIL CODE BY - KOMAL N. PATEL & DR. RUVENDRA VYAS
A CONTEMPORARY STUDY ON THE UNIFORM
CIVIL CODE
AUTHORED BY - *KOMAL N. PATEL &
*DR. RUVENDRA VYAS
GOKULGLOBAL UNIVERSITY (DEPARTMENT OF
LAW)
Abstract:
This article mainly
discussion about the thought of the Uniform Civil Code and its legal extent. In
this article, the vital spirit of the Uniform Civil Code is examining and what
does it mean and its legal perception and theories. This paper commences with
the beginning to the UCC in which it describes the thought of the UCC and also
argue on its source or wherever it has derived from. It extra argues the
require or require for the UCC under this division itself, that whether the UCC
should be realize or not and what are the expert and convict of the similar. As
we additional progress towards the move toward of the research paper, this
paper speaks about the connection of the UCC with the Secularism and argue how
the achievement of the UCC may guide to the dissolution of the nation and how
this will guide to the stop working of the silence and settlement between the
public.
After that it additional
chat about the UCC and the constitutional guarantees. This paper also talks
about the judgements and the receiver of the Indian magistrates towards the
Uniform Civil Code. Last but not the least, this paper concludes with clear-cut
locate of suggestion and winding up.
The researcher has
followed secondary data collection. This is a doctrinal study. The investigator
has also consumed comments, volume, article, commentary, observations, remarks
and other writings to include a variety of observation of the whole host of
jurists, with the intent of current a holistic analysis. The researcher has
made broad apply Case Laws’ in paper, thus like to identify a tendency in the
legal announcement.
Keywords: Uniform Civil Code, Personal Laws, Secularism, Constitution, Judiciary
INTRODUCTION:
-
India is a earth in which
a variety of religion are followed like Hinduism, Islam, Buddhism, Jainism,
Zoroastrianism, Christianity, Sikhism, etc., to name a not many. India follows
secularism. It is preserve in our Constitution and was included in the preamble
after the 42nd Amendment in 1976. The term „secular? means that the State will
not follow any particular religion and neither will the people be discriminated
because the religion’s that they tag on. This means that the people will be
given the freedom to follow any religion. This is also protecting in our
Constitution as a fundamental right under Article 253 and 264. In India, this
word is particularly main because it is important to memo that the division of India
and Pakistan itself happened because of religion. Religion has without end been
used as a attach by the supporting body and has been a basis of divergence
since ages. The difference in Israel is also because of religion. In India,
dissimilar individual laws manage dissimilar religion. For case in point, the
Hindus, Sikhs, Jains and Buddhists are administrating by the Hindu Marriage Act
of 1956 in cases connecting to wedding, separation, preservation, etc. The
Christians are administrating by the laws connecting to Christianity and
Muslims by the Islamic Law. These are three large sect of individual laws in
India - Hindu Law, Christian Laws and Islamic Law.[1]
At the present the
trouble exists in the fact that there are difference and discrepancy within the
personal laws. There is no regularity. Also, there has been instances where the
personal laws denied the rights of women or did not even give them rights. To
counter these weakness, the UCC can be act out. The UCC that means a uniform
personal law for all citizens of the country. This policy will change the
presented spiritual individual act in India and have a uniform law that will
furnish to all the citizens, irrespective of their religion. This has been imagining
by the makers of our Constitution under Article 44. But it has been powerfully
opposite because it is regard as volatile of Article 25 of the Constitution.
This paper plan to approach the concept of UCC in a more practical and
pragmatic way to ensure that it can be properly implemented in India and to see
if it is even suitable for a country like India. Its Legal width are reserved
in brains.
The Uniform Civil Code (UCC) is a concept that has long
been debated and discussed in the Indian socio-legal landscape. At its core, a UCC seeks to provide a uniform set
of laws governing personal matters like marriage, divorce, inheritance, and
property for all citizens, irrespective of their religious beliefs or community
affiliations. In essence, it calls for the unification of personal laws that
currently vary among different religious communities in India, including
Hindus, Muslims, Christians, and others.
The relevance of the UCC in India stems from the
country’s unique diversity, both in terms of religion and culture. India is a
secular nation that upholds the principles of equality and justice for all its
citizens, regardless of their faith or background. However, this diversity has
led to the existence of distinct personal laws for various religious groups,
often resulting in disparities in legal rights, particularly concerning family
matters.
The debate surrounding the UCC is multifaceted and touches
upon various aspects of Indian society. It encompasses issues related to gender
equality, individual rights, religious freedom, and social justice. Advocates argue that Aditya Bharat Manubarwala
strongly advocated in favour of the Centre in their proposal of UCC that a UCC would harmonise conflicting personal laws, eliminate gender
biases inherent in some of these laws, and promote a more equitable and just
legal framework.
On the other hand, opponents contend that implementing a UCC could infringe upon religious freedom and cultural practices,
potentially alienating minority communities. They argue that personal laws are
deeply rooted in religious traditions and should be preserved as part of the
unique fabric of Indian society.
The relevance of the UCC in India cannot be overstated. It represents an ongoing constitutional and societal debate that seeks to strike a balance between uniformity and diversity, between individual rights and community rights, and between tradition and modernity. This critical analysis of the constitutional aspects surrounding the UCC will delve deeper into these complexities, exploring the historical context, constitutional framework, legal and ethical implications, political and social factors, comparative perspectives, case studies, and the challenges and prospects associated with this important issue in India.
Historical
Context of the Uniform Civil Code (UCC) Debate in India and Key Milestones
The debate surrounding the Uniform Civil Code (UCC) in India is deeply rooted in
the country’s historical, cultural, and political landscape. Understanding its
historical context and key milestones is crucial to comprehending the
complexity of this ongoing discussion.
Ancient
and Medieval India
In ancient and medieval India,
personal laws were primarily governed by customary practices and religious
texts specific to various communities. Hindu personal laws were influenced by
texts like Manuscript, while Muslim personal laws were derived from the Quran
and Hadith. Different communities have their own distinct sets of rules and
practices. [2]
Colonial Era (19th and early 20th centuries)
Research Methodology:
The researcher has
followed secondary data collection. This is a doctrinal study. The investigator
has also operated remarks, volume, article, explanation, interpretation,
clarification and additional writings to include the different analysis of the
crowd of jurists, among the purpose of current a holistic analysis. The
investigator has complete broad use of Case Laws in this article, thus like to
distinguish a tendency in the legal declaration.
Research Question:
Whether the UCC should be
a blend of personal laws or be a new law?
Review of Literature:
The interdependence
between law and religion avoid the Indian state from change the religious
personal laws, and thus, this go on to rotate down legal equal opportunity to
Indian women.
(Parashar) Secularism has
been integral to India’s democracy, but at present, its make use and
restrictions are being argue. aware examination on the indecision of secularism
in future has been given. (Agnes) Uniform civil code of India is a word that
refers to the idea of an overarching common act rules in India. The argue at
this point is if the Uniform Civil Code administrate every one public,
irrespective of their holy fervour, does it succeed the correctly of people to
be administrate under dissimilar individual act support on their religion or
customs? (Chaudhary) A list on the UCC was set up in the Indian assembly. however,
it not at all happen to a work due to oppositions. single of the foundation on
which the doubt was increase was that Islam does not be aware of taking on,
plus so, it would be volatile of Article 25 of the Constitution which supply
the correctly to perform and confess any spiritual obsession. yet skill. 25
shield merely such perform which are necessary and vital division of some
spiritual proviso. The tradition of acceptance was prevailing still in
pre-Islamic Arabia. Article 38(2) plainly tell so as to the State should endeavour
to lessen some discrimination. therefore, an identical Law will merely endeavour
to get rid of the irregular position of a kid accept by a Hindu and a kid
accept by a nonHindu. (Sharma) This volume explore the interchange among the
matter of act, customs, with spiritual assurance in glow of the a variety of
intra-community with inter-community argument.
Objectives:
1. To identify with the useful troubles
in the achievement of uniform common rules.
2. To learn if the UCC is volatile of
Ar. 25 of the Indian Constitution.
UCC AND THE
INDIVIDUAL LAWS:
A women are regard as
substandard in mainly of the personal topic as balance to men, in particular
when it come to the argument of the subject of the marriage or the succession,
adoption or even the heritage. Under the Hindu Law particularly, in the year
1955 and 1996, A Hindu woman didn’t benefit from the same civil rights beside
with the Hindu male be it something or any matter. prior to 1955 polygamy was
up to date among the Hindus. The Hindu women couldn’t hold some assets as its complete holder
excepting in case of Sridham. She had
only incomplete land which was approved going on top of the legal last full
heirs of the male owner called revisionary on her loss. She personal a limited
interest, in the sense that whenever an issue came up for the desertion of the
property and mortgaging or selling the property, she could’nt do it on her individual. while it approaches
to the issue of acceptance a Hindu women didn’t have the correctly to accept a
kid on top of her individual. She could’nt be ordinary keeper of her kids
through the living of her partner. These examples are illustrative sufficient
to demonstrate the patriarchal character of the Indian culture. still although
the Hindu act former codified, positive unfair supplies at rest be present
still nowadays. For illustration a Hindu female is not a coparcener in Hindu coparceners
apart since in a little states similar to Andhra Pradesh, Maharashtra,
Karnataka and Tamil Nadu. therefore, she is not permitted to the allocate into
the coparcenary. therefore, it is nothingness to the truth so as to the
codification of private act of Hindus hasn’t be successful totally in eliminate
the gender dissimilarity.
while it appears to talk
about the Muslim Law, in the Pre Islamic Arabia, the women benefit from a
trivial status because since then it has been a patriarchy since after that.
The women since then were consider secondary to men. The initiation of Islam
has contributed much while it approaches toward the corrosion of the Muslim
women and the acceleration of their troubles. The Holy Quran provide equivalent
human rights to men and women and places women in a reputable situation.
yet, there are assured
phase in Islam that submit the position of Muslim women particularly the wives
timid and poorer. In Islam, a man is allowable to get married four times while
the women cannot and if they do they are treat as unchaste and impure. Women
are not even known the right to divorce their husbands, while principally the
manner of divorcing the wife by the husband by pronounce triple Talaq is highly
unfair. This is inspite of the message given in the Holy Quran. This has been
held invalid and illegal, newly in the Allahabad High court judgement.
Yet in the topic of
succession, a Muslim woman is discriminated against the allegation of assured
Muslim scholars that the Islam in this stare is more progressive and
open-minded. The lawful situation is that when two scholars or residuary of
opposed sex but of the same degree inherit the property of the departed, the
Muslim male obtain twice the distribute of the womanly[3].
UCC AND THE
INDIAN CONSTITUTION:
The major trouble deceit
in the fact that if the makers of Constitution had planned for a identical
Civil code to be compulsory in India, after that they should not have placed it
under Article 44 of the Constitution as a division of the Directive Principles
of the State Policy. The Directive Principles of State Policy contained in the
Part IV (Art. 36 - 51), as the name suggests are mere directions to the State.
They need not be mandatorily followed and are not enforceable by the Court.
They are simply activist responsibility on the State which will assist in good
governance.
The Preamble of the
Indian Constitution evidently states that India is a Secular, Democratic,
Republic. This means that there is no State spiritual conviction. A secular state
shall not discriminate beside anybody on the earth of religion. A religion is
only concerned with relation of man with God. It means that religion should not
be obstruct with the everyday life of an person. The procedure of
secularisation is intimately linked with the goal of uniform Civil Code like a
cause and effect. In the case of S.R. Bommai v. Union of India8 , as per the
Justice Jeevan Reddy, it was held that religion is the topic of human being
trust and cannot be mixed with secular activities and can be keeping up by the
State by perform a law. In India, there subsist a idea of activist secularism
as well-known from the principle of secularism received by the U.S and the
European States i.e. there is a wall of separation between the religion and the
state.
UCC in Goa:
Goa is the single state
in India that has uniform civil code anyway of religion, sexual category,
caste. Goa has a familiar people law. Thus Goa is the merely Indian state that
has a UCC. In Goa Hindu, Muslim, Christians everyone are jump with the equal
law connected to wedding, separation, series. while the Goa grow to be the
division of union land in 1961 by the good value of the Goa Daman and Diu
management act 1962 the assembly official the Portuguese civil code of 1867 to Goa
and shall be modify with rescind by the skilful assembly.
Special Marriage Act, 1954:
This variety of marriage
act provide a civil marriage of two humans being of dissimilar gender
irrespective of their religious conviction. This law succeeds in Indian to have
their wedding external the traditions of their private act. This law is applying
in all above the India except for Jammu and Kashmir because they have given the
special position under article 370. His law is approximately matching to the
Hindu wedding act 1955 this law provide plan of how the law is secularized
towards the Hindus. The special marriage acts all Muslim group of people to get
married under it. Under this act polygamy was unlawful and the method of
succession would be managing by Indian succession act yet the method of
separated is also governed by this law. however, for divorce there are careful
provisions that are followed in Goa. Muslim community people that have register
their marriage in Goa cannot take more than one wife according to this act and
throughout the wedding time era all the assets and riches be the owner of by
the pair every partner have right in the property the divide half –half of the
assets and if partner expire the partly divide of the assets be there leave to
the additional. And the other partly goods was separated between the kids in
the similar quotient.
CONCLUSION
& SUGGESTIONS:
The UCC is not very soon an
issue of gender justice, it is also a question of how a nation provide
accommodation its own diversity. In India, liberty of religion subsists with
additional human rights like equal opportunity and non-discrimination. Instead
of getting in indiscriminately or send-off traditions entirely to themselves,
India's open-minded multiculturalism strike a stability. It has been more set
to change common observe, while offer protection to defenceless persons in
different crowd.
Is there a superior mode
for India to consult this? The general analysis is that the Western democracies
are a template for liberalism. But how do the US and France conceptualise law
and religious freedom, the stability among greater part and marginal crowd
rights? What do Canada and the UK do? But the trouble is that India cannot have
the Western Countries as a model as the circumstances are not parallel. mainly
of the western nation, in spite of claim to be secular, tend to show a
prejudice towards Christianity and the center East Countries clearly go behind
Islamic Law. Even as we move further for a Uniform Civil Code, we should know
that law cannot subsist too far separately from societal rule. with no social
support, or state ability to apply our own doctrine, we hazard close to people
into looking for alternative community justice, like sharia courts or khap
panchayats. A common civil code will have to be watchful in its selection. Then
there remainder the question of whether it should be mandatory, wipe out all
private law, or whether it should permit Indians the choice of choose to live
under their own spiritual umbrellas, if they desire. whichever way, it is time
that we draw our morals and dissimilarity, in the pursuit of a dream common
civil code. In the seven decades since the Constitution was pass, there has
been no genuine attempt to even start such a conversation.
It is also clear that UCC
is not violative of Ar. 25 and 26 of the Constitution. It should rather be a
new law and not the blend of personal laws. The problem in blending personal
laws is that there is every chance for a bias to arise. The Parliament should
introduce a new code similar to the Special wedding Act of 1954 which does not
extend any favours or bias towards any religion.
REFERENCES
Books:
- Agnes, Flavia. “The Supreme
Court, the Media, and the UCC Debate in India.” The Crisis of Secularism
in India, 2006, pp. 294–315.
- Chavan, Nandini, and Qutub Jehan
Kidwai. Personal Law Reforms and Gender Empowerment: A Debate on Uniform
Civil Code. Hope India Publications, 2006.
- Dhagamwar, Vasudha, and Indian
Law Institute. Towards the Uniform Civil Code. 1989.
- Kumar, Ajai. Uniform Civil Code:
Challenges and Constraints. 2012.
- Parashar, Archana. Women and
Family Law Reform in India: UCC and
Gender Equality. 1992
6. Ratnaparkhi, M. S. Uniform Civil
Code: An Ignored Constitutional Imperative. Atlantic Publishers & Dist,
1997.
7. Shetreet, Shimon, and Hiram E.
Chodosh. Uniform Civil Code for India: Proposed Blueprint for Scholarly
Discourse. Oxford University Press, 2015.
Journals:
1. Choudhary, Vaibhav. “A Proposal for
Uniform Civil Code for Law of Succession in India.” SSRN Electronic Journal,
2010.
2. Hazarika, Raya. “Should India Have a
Uniform Civil Code?” SSRN Electronic Journal, 2010.
3. Sharma, Sharda Girijesh. “Uniform
Civil Code and Adoption Laws in India.” SSRN International Journal of Pure and
Applied Mathematics Special Issue 4692 Electronic Journal, 2008.
4. Dr. Lakshmi T and Rajeshkumar S “In
Vitro Evaluation of Anticariogenic Activity of Acacia Catechu against Selected
Microbes” IRJMST, March 2018.
5. Trishala A, Lakshmi T and Rajeshkumar
S, “Physicochemical profile of Acacia catechu bark extract –An in vitro study”
IRJMST, April 2018
Case Laws:
1.
Mohd
Ahmed Khan v. Shah Bano Begum
2.
S.
R. Bommai v. Union of India
3.
Shayara
Banu v. Union of India & Ors.
4.
Sarla
Mudgal v. Union of India
5.
John
Vallamattom v. Union of India
6.
Acharya
Jagdishwaranand Avadhut v. Commissioner of Police, Calcutta
7.
Lily
Thomas, Etc. Etc. vs Union of India & Ors.
8.
Agnes
Alias Kunjumol vs Regeena Thomas
9.
Ahmedabad
Women Action Group... vs Union of India
The State of Bombay vs Narasu Appa Mali