UNIFORMITY IN DIVERSITY: AN ANALYSIS OF IMPLEMENTATION OF UNIFORM CIVIL CODE IN INDIA By: Mehuli Mishra
UNIFORMITY IN DIVERSITY: AN
ANALYSIS OF IMPLEMENTATION OF UNIFORM CIVIL CODE IN INDIA
Authored By: Mehuli Mishra
The recent row of implementation of Uniform Civil Code has gathered
varied forms of protests and opinions from politicians and intellectuals alike.
Various political parties and individual leaders raised their concerns towards
such a decision, stressing on the point that something constructive and
beneficial of this policy should come to the knowledge of the country before
such a policy gets implemented. Many political parties slammed such an
initiative as a means of gaining votes, while others hailed this as a means to
achieve the long-desired aim of abolition of untouchability. The 90-year-old
Nobel Laureate, Mr. Amartya Sen opined that this issue is not new, but
difficult.
Although Article 44 was included as an alternative, to be implemented
only when conditions and circumstances permit to do so, this has always stood
as a challenge to the smooth functioning of the nation, in communal
perspective. The newly constituted Government in 2019 stressed on the
implementation of Uniform Civil Code as one of its agenda in their tenure, and
look at the controversy arising out of it. With a bonafide intention of
protecting the minorities, will the Uniform Civil Code at all succeed in
bringing uniformity among all the sections of the society and take a step towards
the holistic development of nation in the true sense of the word still remains
a question for many. In this article, emphasis will be laid on what the Uniform
Civil Code aims at, why it remains a controversy and the role to be played by
it in the social and economic development of the nation at large.
INTRODUCTION
The cultural diversity of the nation
stands as an x factor for the uniqueness of the nation. Each and every region
of the country has a different story to tell. India has a different stand out when
it comes to speaking about its holistic diversity. History bears testimony to
the fact that India has been the melting pot of various religions, cultures and
has served as the origin for many.
People following different religion
have their own sets of customs and rituals when it comes to marriage and other
important events defining a person’s future in the long run. These customary
practices eventually took form of personal laws that became binding on the
particular followers. In such a backdrop, the Constitution was enacted, which contains
basic set of rules. It began to serve and still serves as the grund norm for other
laws applicable to the citizens. The basic human rights that should be given to
each and every citizen were recognized in Part III of the Constitution, which
could be enforced in a court of law. The principles which a state needs to keep
in mind for making laws has been enshrined as Directive Principles of State
Policy (Part IV of the Constitution). Although not enforceable, these
principles have to be kept in mind by the State while formulating laws. One of
these principles is providing security to the citizens of India in terms of a
Uniform Civil Code throughout the territory of India.
Although this principle deserves a heart-warming
welcome from the leaders and the mass alike, an initiation of it has always
received widespread controversies and debates all around. Many political
leaders link this with a shroud, under the garb of which the political leaders
are on the verge of enriching their vote bank. This article will highlight the
issues and the future ahead; how the Uniform Civil Code is going to leave an
impact on the citizens of India in the long run.
UNIFORM CIVIL CODE ITS WHEREABOUTS AND CHALLENGES
The Uniform Civil Code is a proposal
in India to have a check on the implementation of personal laws on citizens irrespective
of their religion, gender, and sexual orientation. In a personal sense personal
laws of various communities are governed by their religious scriptures. The
recent furore regarding implementation of a uniform civil code across the
nation (the petition being put forward by the ruling party as a part of their
agenda in their tenure) is an important issue regarding secularism in Indian
politics. It continues to remain disputed by Muslims, other conservative
religious groups and sects in defence of and religious customs (for instance
Sharia in case of Muslims). Personal laws, as distinguished from public law, cover
marriage, divorce, inheritance, adoption and maintenance. On one hand, where
Article 25 -28 of the Constitution guarantees religious freedom to Indian
citizens and allows religious groups to maintain their own affairs, Article 44
of the constitution stands in sharp contrast to it, expecting the Indian state
to apply directive principles of Uniform Civil Code and common law for all
Indian citizens throughout the territory of India while formulating national
policies.
UCC came into limelight in the Indian
political scenario after the historic Shah
Bano case in 1985. The issue of making certain laws applicable to all
citizens without abridging the fundamental right to practice religious
functions was put forward in light of such issue. Focus was mainly on the
Muslim Personal Law. The Muslim Personal Law is partially based on the Sharia
law, which in turn permits divorce in an unilateral manner, polygamy and giving
it a legal recognition on applying the Sharia law. UCC was once in November
2019 which was followed by another one in March 2020. However, both of these
efforts were in vain, since they were withdrawn even before it was being
introduced in Parliament.
Before we proceed further with the
discussion, a brief insight into the legal aspect of the Uniform Civil Code (Article 44 of the Constitution) is
required for better understanding.
UNIFORM CIVIL CODE IN THE CONSTITUTION:
ARTICLE 44
Article 44 of the Constitution of
India reads as under:
“Uniform civil code for the citizens:
The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.”
This article aims to address the
discrimination against vulnerable groups and harmonise diverse cultural groups
across the country. Dr. B R Ambedkar, while formulating the Constitution contended
that a implementing an Uniform Civil Code is desirable and a credible approach;
however it should remain voluntary for the moment, Perhaps this has been the
reason of adding Article 35 of the draft Constitution as a part of the
Directive Principles of the State Policy in part IV of the Constitution of
India in the form of Article 44. The main intention behind this incorporation
was that this would be implemented when the nation would be ready to accept it
and the social acceptance to the UCC could be made. Dr. Ambedkar, in his speech
in the Constituent Assembly said, "No one need be apprehensive that if the
State has the power, the State will immediately proceed to execute…that power
in a manner may be found to be objectionable by the Muslims or by the
Christians or by any other community. I think it would be a mad government if
it did so."
The history of the Uniform Civil Code
dates back to the colonial period in
India. The East India Company made an attempt to reform the social and
religious customs prevalent in the society at that time. In an instance, Lord
William Bentinck, the then Governor-General of India, tried to suppress sati,
the prescribed death of a widow on her husband's funeral pyre. He went on to pass
the Bengal Sati Regulation, 1829 which was later extended to other English
territories across India.
The importance of uniformity in
codification of law related to crimes, evidences and contract was felt in India
as per the Lex Loci Report of October, 1840. However, the personal laws
pertaining to Hindus, Muslims, and followers of other religions were set aside.
In the post-colonial era i.e.; after Independence, the Hindu Law Committee
Report was discussed at full length. The first Prime Minister of the Indian
republic, Jawaharlal Nehru, his supporters and women members felt the need of a
Uniform Civil Code to be implemented for the benefit of its citizens. The Hindu
Code Bill (which contained provisions for monogamy, divorce and right of
daughters to inherit property). This Bill itself got a lot of criticism; among
the critics were the first President of the country, Rajendra Prasad, Sardar
Vallabhbhai Patel, and other noteworthy persons in Indian politics. The Bill
was held to be "anti-Hindu" and "anti-Indian". It was at
that time that they demanded a Uniform Civil Code. After a lot of twists and
turns, this political turmoil finally met its end by approval of a lesser
version of the Bill, and enactment of four separate acts in place of a single
codified version of Hindu Laws; namely the Hindu
Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act.
Unfortunately, this was not the end.
Several Muslim members objected to this provision, apprehending that their
personal law may be targeted next. Their objections were nullified saying that
the uniformity has been already been achieved by the nation and that the
legislature would never amend any personal law against the wishes of the
citizens. (Mention should be made of the pre-existing statute of Special Marriage Act of 1954, which
provided for civil marriages between individuals irrespective of religion,
which was completely outside the realm of the religious wing of the personal
laws followed.)
NEED FOR A UNIFORM CIVIL CODE IN INDIA
The Constituent Assembly Debates
around the UCC and the erstwhile article 35 had a lot of dissent towards it.
The issue of dominance by the majority communities was the main bone of
contention It is quite an established point of view that the need for Uniform
Civil Code was felt right from the time when the Constitution began to be
framed. The makers of the Constitution decided to keep it as a standby, which
would be implemented once the political, and social scenario in India permits
to do so. Thus Article 35 of the Draft Constitution took the form of Article 44
of the Constitution, which asked the State to shoulder the responsibility of
implementing a Uniform Civil Code throughout the territory of India.
Dr B.R. Ambedkar, in one of its speeches in the Constituent Assembly, said that there is
no urgency in implementing the Uniform Civil Code at that moment, but it should
be implemented when circumstances permit to do so. According to him, the
impossibility of a common civil code throughout a vast territory like India is
a complete misnomer. Except that of the laws related to inheritance and
succession, all other areas of civil laws were covered by codified laws (for
e.g.: Negotiable Instruments Act, Sale of Goods Act, etc. to name a few) which
are applicable all over the territory of India (uniform in nature).
Noted politician and writer K.M. Munshi took a very rigid view in
negating the claims of the Code promoting dominance of the majority over the
minorities. According to him, the Code recognizes the civil rights of the
parties with respect to inheritance and succession. As a result, there is no
connection between the Code and the religious sentiments of the majority and
minority alike.
The Law Commission, in 2018, stated that implementing the Uniform Civil Code was not the
need of the hour, and the society need not be mended by complete replacement of
personal laws; a simple amendment will suffice. However, the 22nd
Law Commission recently stated that the time for bringing uniformity in the
civil society has come; and that efforts should be made to bring a consensus
among the citizens themselves. As a step towards it, it would engage in
consultations and discussions with the general public and the religious
institutions as well.
In addition to the contentions given
time and again by the politicians and eminent personalities alike, the judiciary has also played an
important role in highlighting the need for a Uniform Civil Code throughout the
territory of India. Some of the notable cases are as follows:
1.
Mohd. Ahmad Khan v. Shah Bano Begum (1985)
2 SCC 556[1]
In this landmark case the facts were
that Mohd. Ahmad Khan, the petitioner, divorced his wife Shah Bano Begum, by
pronouncing talaq thrice (triple talaq). The main issue revolved around Section
125 of CrPC, and the question was raised as to whether the section overrides the
personal law pertaining to divorce and maintenance; and that whether any
conflict exists between the Muslim Law pertaining to recovery of maintenance of
a divorced wife and between Section 125 CrPC. It was one of the landmark cases
that raised a dire need of promoting uniformity in matters of divorce and
maintenance; predominantly under the hold of personal law. The judgement
initiated the proposal for implementation of a Uniform Civil Code, as it would
end all the unnecessary conflict between the personal laws and the codified
laws that are applicable all over India. The Parliament was asked to take
effective steps for this purpose; as it would facilitate national harmony and
equality before law in the long run. The Government refrained from addressing
this issue. One of the aftereffects of this judgement was the enactment of the
Muslim Women’s Protection of Rights on Divorce Act in 1986.
2.
Sarla Mudgal, (Smt.) President,
Kalyani, and others versus Union of India and others (1995) 3 SCC 635[2]
This was the case where the Supreme
Court made a sincere urge to the Government to implement a Uniform Civil Code
all over the territory of India. According to Justice Kuldip Singh, the Hindu
Code Bill, despite facing a lot of criticisms and going through a lot of
controversies; has been able to bring about nearly 80% of Indians into one
single system so far as laws relating to marriage, divorce and maintenance is
concerned. The time (taking into reference the fact that Pandit Jawaharlal
Nehru at the time of implementing the Hindu Code Bill claimed that the time is
not ripe enough to introduce and implement a unified system of law in the form
of Uniform Civil Code at that time) has come to introduce Uniform Civil Code
for all citizens all over the territory of India. As evident from the facts of
the case, the problem of various Hindu converting to Islam only because of the
fact that The Hindu Marriage Act, 1955 allows for marriage for once and the law
related to Muslim marriages allows a man to have four wives (as mentioned in
the facts of the case), can be resolved efficiently if all the citizens
(irrespective of religion, gender, caste) can be brought under one roof of a
codified form of law. The Hon’ble judge also took into account the historical
backdrop which led to the incorporation of the Uniform Civil Code and how the people
(including the ones that came to India after partition) thought uniformity as a
pre conceived notion for the lawmakers in India.
A similar view regarding the Uniform
Civil Code was followed in the case of Lily
Thomas v Union of India (2000) 6 SCC 224[3].
In this case, the Supreme Court laid emphasis on the need of a Uniform Civil
Code in matters of succession.
3.
Shayara Bano v Union of India (2017)
9 SCC 1[4]
Popularly known as the triple talaq
case, the court was successful in doing away with the concept of talaq-e-biddat.
The five judge-Constitutional bench opined that the practice of instant talaq
is against the fundamental right to equality, and that it has nothing to do
with the fundamental right to religion. Other Islamic countries in the world
have abolished the practice of Talaq-e-biddat; neither has it been mentioned in
any of the religious texts to give it a recognition from the legal point of
view. The court also supported the view of a single codified system in matters
related to marriage and divorce, by taking the example of how the codification
of the Hindu Laws have helped to deal with the ambiguity of the laws applicable
amongst Hindus themselves, in different regions of India. The need for
implementing Uniform Civil Code in India gained ground for yet another
time.
4.
Kesavananda Bharati v State of Kerala
(1973) 4 SCC 225[5]
Although this case is famous for the
implementation of the basic structure doctrine, the court delved deep into the
issue of whether any of the Fundamental Rights under Part III of the
Constitution can be quashed on account of framing policies and laws under
Article 44 of the Constitution. The Court held that it is not possible for the
judiciary and the courts alone to bring the Government under compulsion for
taking steps to realize this goal.
5.
Jose Paulo Coutinho vs. Maria Luiza
Valentina Pereira & Others (2019) 20 SCC 85[6]
Taking into consideration the state
of Goa which already follows a civil code of their own, the Supreme Court ruled
that for Goans living outside Goa, they will be still governed by the
Portuguese Civil Code and not by the Indian Succession Act. It also took the
reference of the Goa Civil Code to emphasize the need of a Uniform Civil Code,
which has become a sort of necessity to be implemented at the earliest.
VIEWS ON UNIFORM CIVIL CODE:
Arguments in favour of it:
National Integration and Secularism:
UCC would help in promoting national
integration and hold the secular character of the nation by creating a common
identity and sense of belonging among all citizens. It would also reduce the mutual
and bigoted conflicts that arise due to the existence different personal laws. It
would uphold the constitutional values of equality, fraternity and dignity for
all.
It promotes Gender Justice and
Equality:
UCC would ensure gender justice and
equality by removing the discrimination and oppression faced by women under
various personal laws. It would grant equal rights and status to women in
matters of marriage, divorce, inheritance, adoption, maintenance, etc. It would
also empower women to challenge the patriarchal and regressive practices that
violate their fundamental rights. An example of Promotion of Gender Equality
through codification of personal laws can be taken as the2005 amendment to the
Hindu Succession Act, 1956 which made the daughters equal inheritance rights
with the sons, granting them coparcenary rights on an equal footing.
Simplification and Rationalisation of
the Legal System:
In an attempt to promote equality and
uniformity, the Uniform Civil Code will aid in making the legal system simple
and comprehensive for the common people to understand. The various anomalies in
civil and criminal laws prevalent in the personal laws can be done away with to
a great extent, if all these laws are simplified and codified to a single
system, in line with the basic human rights (fundamental Rights of the citizens
as enshrined in the Constitution). This has been reassured time and again that
these laws will not interfere with the religious practices of the people, so
far as they do not infringe the basic human rights of the citizens.
People in support of UCC often take
the reference of various judicial decisions and the existing principle of the
Goa, which goes by the Portuguese Civil Code. If a single state can be
successful in the successful implementation, the acceptance for the rest of the
country will not be taxing enough.
Arguments against it:
Religious and Cultural Diversity:
India is a diverse country with a
rich tapestry of religions, cultures, and traditions. A uniform civil code
could be seen as a threat to this diversity, as it would require the
abandonment of personal laws that are specific to particular religious or
cultural communities. The homogeneity brought by the laws will spoil the
diversity of the various religious practices and their significance will not be
recognized; thereby posing a threat to the multicultural nature of the Indian
soil.
Violation of the Right to Freedom of
Religion:
The freedom to practise and preach
one’s religion is a fundamental right under the Indian Constitution (Article
25-28). According to some, a uniform civil code would violate this right, as
individuals will be bound to follow laws perhaps not in accordance with their
religious beliefs and practices.
Furthermore, it is also argued that a
Uniform Civil Code is not feasible as the codified civil and criminal laws
prevalent in the country vary from one state to another as well. Last, but not
the least, some of them firmly believe that the Uniform Civil Code sis just an
excuse to bring the majority in a dominant footing; making the Uniform Civil Code
inclined towards the majority (Hindus).
Challenges:
Although the need of the hour, an
implementation of the Uniform Civil Code is likely to meet a lot of challenges
in the near future. Some of them are given below:
In constitutional perspective, the right to equality as mentioned
under Article 14 and the right to practise and profess one’s religion are
somehow at loggerheads. Care needs to be taken of the fact that both of them
are enforceable and their infringement cannot be afforded at any cost. As a
result, framing laws in a harmonious manner is really difficult, more so when
there are probable chances of the secular nature and the ethnic diversity of
the nation to be compromised.
It has already been mentioned about
the insecurity of the minorities so far as the implementation of the Uniform
Civil Code is concerned. Thus, it is going to be a tedious task for the
lawmakers and a challenge as well, to bring all the religious sects to a
consensus for the greater good.
Besides, the chances for
misinterpreting the bonafide intention behind implementing the Uniform Civil
Code are many; with the fear of the policy getting a political colour as well.
Hence care should be taken while materializing the thought of uniformity in its
true sense, free from the shackles of misunderstandings, misinterpretations and
political abuse.
CONCLUSION: THE WAY AHEAD
This entire discussion has always
been destined to be kept aside by leaders of the nation for a considerable
amount of time, not until the furore started afresh with the 22nd
Law Commission Report bringing forth this issue yet again and initiating a
fresh controversy all over the nation. The public notice dated 14th
June, 2023 highlights the main areas of focus, where public opinions will be
taken from the people as well as the religious institutions all over the world.
It is to be kept in mind that the execution is not as easy as it has been to
pen down in the notice, the law makers will have to get through a tough reality
check. Hence care should be taken while taking steps towards reaching one of
the much awaited milestones in Indian History-promoting uniformity among the
citizens. Nationwide surveys should be conducted and the people should be made
aware of the positive impact of uniformity once the Code is implemented. As the
saying goes that “Rome was not built in a day”; so do I believe that all good
things take time to be made. Going through a lot of debates, controversies, and
unrests is what unfortunately awaits for the lawmakers, who made it an effort
to carry out the long pending task. This also invites a conscious effort from
our side as well. We should keep in mind that humanity is above all religion.
Every citizen is entitled to his basic rights and they cannot be infringed by anyone.
In a nutshell, Implementation of a
Uniform Civil Code can be a trend setter and an example for other nations to
adopt, as it would exhibit a perfect balance of humanity and progressive
society while sticking to the roots and deeply adhering to the religious and
cultural diversity, something which we take pride in as Indians. As an Indian,
we can expect the Uniform Civil Code to be the epitome of fairness and equality
while respecting the religious and cultural sentiments of each and every citizen.
Only then can we take a step towards development in the long run.
REFERENCES:
2.
“Uniform Civil Code: Arguments for and against –
Explained, point wise” available at https://blog.forumias.com (Last seen
on 31.07.2023)
3.
Mayank Singh; “Significance of the Uniform Civil Code
(UCC) in India, coupled with addressing the related Supreme Court cases”.
Published on Feb15, 2023 Available at https://www.manupatra.com (Last seen
on 30.07.2023)
4.
What's Uniform Civil Code (UCC)? What does
Constitution say & why it's such a controversial topic in India? Available
at https://m.economictimes.com (Last seen
on 27. 07.2023)
5.
What is Uniform Civil Code Available at https://www.business-standard.com (Last seen
on 29.07.2023)
6.
Mohd. Ahmad Khan v. Shah Bano Begum (1985) 2 SCC 556
7.
Sarla Mudgal, (Smt.) President, Kalyani, and others
versus Union of India and others (1995) 3 SCC 635
8.
Lily Thomas v Union of India (2000) 6 SCC 224
9.
Shayara Bano v Union of India (2017) 9 SCC 1
10.
Kesavananda Bharati v State of Kerala (1973) 4 SCC 225
11.
Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira
& Others (2019) 20 SCC 85
12.
Preeti Pant; “Uniform Civil Code: Recent Developments
and their background”; available at https://www.legalserviceindia.com (Last seen
on 30.07.2023)
[1] Mohd. Ahmad Khan v. Shah Bano Begum
(1985) 2 SCC 556
[2] Sarla Mudgal, (Smt.) President,
Kalyani, and others versus Union of India and others (1995) 3 SCC 635
[3] Lily Thomas v Union of India
(2000) 6 SCC 224
[4] Shayara Bano v Union of India
(2017) 9 SCC 1
[5] Kesavananda Bharati v State of
Kerala (1973) 4 SCC 225
[6] Jose Paulo Coutinho vs. Maria
Luiza Valentina Pereira & Others (2019) 20 SCC 85