UNIFORM CIVIL CODE: THE NECESSITY AND THE ABSURDITY BY - VIPIN KUMAR
UNIFORM
CIVIL CODE: THE NECESSITY AND THE ABSURDITY
AUTHORED BY
- VIPIN KUMAR
RESEARCH
SCHOLAR
NETAJI
SUBHAS UNIVERSITY
ABSTRACT
Uniform Civil Code (UCC)
is also known as “One Nation- One Law” is defined under Article
44 of the Indian Constitution. The question as to whether after 74 years of the
Constitution India is ripe sufficient to have a uniform civil code has been
raised yet again. It talks about the challenges that the nation is currently
confronting as well as various persons are treated depending on their personal
laws. India is a multilingual, multi-religious nation that is divided in
various ways yet united together by a sense of nationalism. Nowadays, every
individual is subject to their own personal laws concerning marriage,
succession, divorce, and other matters.
The term
"secular" is used in the preamble of the Constitution to ensure
citizens' freedom of religion and to state that the state is secular and
shouldn't have any involvement in personal religious matters. The Indian
secularism mandates that the State treat its citizens in accordance with the
principles of "Sarva Dharm Sambhava" and refrain from
identifying with any one religion. It has been argued by some experts that have
maintained that Indian society is not sufficiently developed socially to make
use of the "Uniform civil code." The researcher has noted that this
is because India is a large country with a variety of cultures, religions, and
other factors. It is possible to argue that the enforcement of “Uniform Civil
Code” would violate numerous religious customs and cultures by unnecessarily
imposing State legislation.
If UCC is implemented,
bringing the tribes together will be a significant task. The tribal group that
still makes up a large portion of India wants to be ruled according to their
customs and traditions and was granted freedom to do so. Secular procedural
laws and other piece of legislation are exception in this regard
Keywords - Personal laws, State Policy, Marriage, Divorce,
Inheritance, Gender Equality
INTRODUCTION
In basic terms, a
“Uniform Civil Code” implies consolidating all "personal laws" into a
single set of secular legislation
addressing these issues, which will be applicable to all Indian citizens
despite the society to which they may belong. The specifics of this Uniform
Civil Code are still being worked out, but it is anticipated to incorporate the
most progressive and contemporary components of all current personal laws with
oldest and most primitive ones.
Uniform Civil Code is
given the fourth part of the constitution of India. Uniform Civil Code is given
under Article 44 of the constitution of India. Article 44 states that “The
State shall endeavor to secure for the citizens a Uniform Civil Code throughout
the territory of India.”[1]
Article 37 of the constitution of India states that “ Directive Principles of
State Policy shall not be enforceable by any court”[2] of
law. Irrespective of that Directive Principles of State Policy play an
important role in the governance of the country”. This demonstrates that while
the UCC should be implemented in a specific manner, as stated by our
constitution, implementing so is not necessary. Thus, there is a continuing
debate about India's need for a UCC.
During the lengthy debate
on Uniform Civil Code in the Constitutional Assembly, some Muslim legislators opposed
the inclusion of it. Mr. B. Pocker Sahib Bahadur questioned the definition and
status of the word Uniform Civil Code. Muslims were concerned about the lack of
any specific legislation that could be interpreted as the norm because they did
not want majoritarian law to be imposed[3].
Unfortunately, the need for a strong national character of the country was
overshadowed by this unjustified worry. The Muslim members believed that a
citizen's stringent personal law should not be included under the term
"civil code." The entire purpose of this Article is that "an
attempt may be made to unify the personal law of the Country as and when the
Parliament thinks proper," or rather, when the majority in Parliament thinks
proper. This statement minimizes the members' concerns regarding the meaning of
the word UCC and the purpose of having such a provision in the Constitution. In
response to concerns from the minority community regarding the UCC's provisions
in the Constituent Assembly, Dr. B.R. Ambedkar, the chairman of the Drafting
Committee, stated that "it was intended to have a common Code which
provided for uniformity of law in matters of marriages, divorce, succession,
etc. irrespective of religion, community[4],"
etc. The Constitution was enacted for the entire country, and every section and
community must accept its provision and its directives, Justice M.C.
Chagla wrote in a passionate arguments for UCC. Article 44 is a
mandatory provision binding the government and it is necessary upon it to give
effect to its provision.[5]
Matrimonial and familial
relationships had historically been governed by the personal laws of the major
religious organizations, with the government maintaining a policy of not
interfering in such rules unless specific religious communities demanded a
change8. India is a religiously diverse country. India consists of various
religions such as Hindus, Buddhists, Jains, Christians, Muslims, Parsees, and
Sikhs. The fundamental quality of the Indian nation is its unity in diversity.
Every class or community has its own set of rules on wills, succession,
adoption, marriage and divorce, and babies and minors. Individuals have the
right to have their own personal laws implemented, rather than the laws that
would apply in their local area, and these laws accompany each person
throughout the States of India where they are a component of the national law. Within
a national jurisdiction, customary and personal laws are laws that are specific
to a certain group of people based on their culture or religion. They regulate
family ties with regard to succession, support, and marriage and divorce. India
is a secular nation where each community is free to enact its own laws.
It should be emphasized
that the establishment of Uniform Civil Code in part IV of the Indian
Constitution[6],
compared to any other enforceable part, was influenced by the previously
mentioned two paragraphs. Although the
Indian Constitution's founders recognized the value of a UCC, they were unable
to include it as a required clause. During its period of independence, the
Union of Indian States was a highly unpredictable union with a wide range of
cultures, religions, and customs under its powerful control. If the UCC had
been mandatory back then, it might have damaged the framework of Indian unity.
Secularism is a
fundamental and integral concept that is established in the preamble of the
Indian Constitution, which resembles democracy, socialism, unity, and the
integrity of the nation. The uniformity and regularity of a state's laws are
essential; enforcing different laws solely based on religious beliefs leads to
a discrepancy in this regard. People could argue that equality should only be
maintained between equals, yet religion cannot be the only factor used to
determine whether someone is equal or not. There is a need for uniformity in
personal laws when they violate fundamental human rights or conflict with
governmental objectives. Uniformity in this scenario refers to the ability of
granting all citizens similar rights with regard to fundamental human rights,
as protected by local laws and supported by international legal frameworks.
According to the Preamble
of the Constitution, India is a democratic, republican, and secular nation. Thus,
there isn't a state religion. A secular state is prohibited from treating
people differently based only on their faith, religion, caste etc. A religion
solely focuses on the relationship between God and humanity. It implies that a
person's daily life shouldn't be impacted by their religion. The objective of
maintaining a consistent civil law, such as cause and consequence, is closely
linked to the secularization process. That is to say, a person's religion
should only specify which God or thing he worships, not what laws apply to him.
In India, laws supposed to derive from the sovereign law of the
Constitution of our country rather than from religious interpretation. In S.R.
Bommai v. Union of India[7], Hon’ble
Justice, Jeevan Reddy noted that religion is a matter of personal belief
and cannot be amalgamated with religious activity. The State may control
religion by the enactment of laws.
Secularism in India is not comparable
to what is considered to be secular in United States of America and European
countries. The fact that United States of America and European nations
experienced the periods of renaissance, reformation, and enlightenment is one
of the reasons why such comparisons are seldom made. Therefore, in the West,
legislation prohibiting the state from interfering with religion may be passed.
In India, however, secularism keeps spiritual practice and personal faith
separated, creating a wall between religion and the state. The reason for this
is that, as India has not gone through these stages, it is the State's duty to
get involved in religious affairs in order to eliminate obstacles to State
The term secular is ambiguous and
takes on numerous meanings depending on the situation. In the same way that a
secular state cannot be a religious state, it is opposed to religion. Some
believe that a secular state is anti-religious in this situation. A state that
does not follow any religion in any way need not be anti-religious. It might be
a state that honors every religion.
Despite the fact that the
42nd Constitutional Amendment introduced the word "secular" to the
preamble, the Constitution has always been inspired with a secular spirit. The
fundamental right such as right to equality before the law[8]
and the freedom to profess one's religion are based on this fiercely secular
spirit.
Hindu personal law,
including that which relates to marriage, succession, and other matters, has a
sacramental basis, just as Islamic and Christian law does. It would not be
incorrect to observe that, despite the Constitution's insistence on the
creation of a "UCC" for the entirety of India[9],
some other communities have not abandoned their beliefs in support of national
unity and integration, including Sikhs, Buddhists, and Jains.
LEGISLATIVE EFFORTS MADE BY THE GOVERNMENT
Even still, it was
properly acknowledged in the Constituent Assembly that not all Hindus supported
UCC. However, in Indian consciousness, UCC has always been connected to Muslim
resistance. It was their belief that the laws of succession, inheritance, and
the like were fundamental to their religion. If such became true, Indian women
would never be granted the same rights as males as guaranteed by Article 14 of
the Constitution. Article 15(1) states that "no citizen shall be subjected
to discrimination by the State on the basis of religion, race, caste, sex, and
place of birth or any of them[10].”
Hindus are comparatively more interesting to accept modern
uniform civil code.
Various laws have been legislated from British era till date, the most recent
Amendment has been done
in the Hindu succession Act, with respect to the Coparcenary Property.
·
DURING BRITISH PERIOD:-
Indian Succession Act
1865, which was one of the first laws to ensure women’s financial security,
tried to move the personal laws to the domain of civil law. Reform for
Christian marriages was introduced by the Marriage Act of 1864. Laws such as
the Hindu Widow Remarriage Act of 1856, the Married Women's Property Act of
1923, and the Hindu Inheritance (Removal of Disability) Act of 1928 were
introduced with the intention of protecting women.
The first Special
Marriage Act was passed in 1872, granting Indian citizens another choice, a
civil marriage. Because it only applied to Hindus and required those engaged to
leave their religion, it had a limited scope. Hindus, Buddhists, Sikhs, and
Jains were allowed to marry in accordance with their own personal laws
according to the later Special Marriage (Amendment) Act, 1923.
AFTER BRITISH PERIOD:-
HINDU CODE BILL:-
This law was created to
establish a common civil code, as desired by Jawaharlal Nehru, the first prime
minister of the Indian republic, as well as his supporters and female members. The
Hindu bill itself drew greater criticism, with the primary points of contention
being those pertaining to divorce, monogamy, the taking away of women's rights
as coparcenaries, and succession to daughters.
The Hindu Code Bill was
unable to stop the widespread prejudice against women. The laws pertaining to
divorce granted equal rights to both parties; however, men are mostly
responsible for introducing these rules. The Act solely applied to Hindus,
therefore women from other communities continued to be under subordination. For
example, Muslim women were not allowed to inherit land used for agriculture
under Sharia Law. Although first Prime Minister Pandit Jawahar Lal Nehru
acknowledged that the bill was not perfect, he was hesitant to make significant
changes that may agitate particular communities. Although he acknowledged that
there were no significant changes, he nevertheless thought it was a
"outstanding achievement" for the time.
Any Indian citizen,
irrespective of their religion, is able to get into a civil marriage under the
Special Marriage Act of 1954, allowing Indians to marry outside of their
religion. All of India was subject to the law, with the exception of Jammu
& Kashmir. The act was almost identical to the Hindu Marriage Act of 1955 in
various respects.
Muslims were able to
marry under the Special Marriage Act 1954, and keep the
protections that were normally advantageous to Muslim women but were absent
from the personal law. This act prohibited polygamy and substituted the
relevant Muslim Personal Law with the Indian Succession Act, which would
control inheritance and succession.
Since the passage of
Hindu Code Bill's passage, there were two main groups to which Indian personal
laws applied: the general public and the Muslim community, whose rules were
exempt from modification. Until the Shah Bano case in 1985, there
were fewer instances of conflict between secular and religious authorities
concerning the common civil code. The 73-year-old Bano asked her husband,
Muhammad Ahmad Khan, for maintenance. After forty years of marriage, he had
granted her a unilateral divorce by Tripple Talaaq (saying
"I divorce you" three times) and refused regular maintenance; this
type of divorce was legal under Muslim personal law. In 1980, a local court
delivered a ruling granting her maintenance. Muhammad Ahmad Khan, a lawyer in
his individual right, appealed this ruling to the Supreme Court, claiming that
he was complying with all of his legal duties under Islamic law. Under the
Criminal Procedure Code's "maintenance of wives, children, and
parents" provision (Section 125), which applies to all citizens despite
their religion, the Supreme Court cleared her in 1985. It is also recommended
that a UCC be established. In addition to her situation, two other Muslim women
had already gotten support under the Criminal Procedure code between 1979 and
1980.
A Muslim parliamentarian
who is independent put forward a bill in the parliament to safeguard their
personal law. In 1986, the Muslim Women's (Protection of Rights on Divorce) Act
came into force, providing maintenance under Criminal Procedure Code Section
125, which did not apply to Muslim women.
ADVANTAGES OF UNIFORM CIVIL CODE
·
GIVE EVERY CITIZEN EQUAL STATUS
A uniform civil and
personal law must exist in a secular democratic republic to grant its citizens
equal status regardless of their gender, class, caste, place, race, religion
etc.
·
ENCOURAGEE GENDER PARITY
It is often known that
men are given top preference in almost all religions when it comes to
succession and inheritance, which leads to prejudice against women. As a
result, the Uniform Civil Code will encourage gender parity and equality for
men and women.
·
SUPPORT NATIONAL INTEGRATION
In a court of law, every
citizen of our country is given the same treatment regardless of whether they
are subject to criminal or other civil laws (personal laws excluded). As a
result, the Uniform Civil Code will give every people access to an equal set of
personal laws, ending the politicizing of issues related to discrimination,
concessions, or, inversely, extraordinary benefits appreciated by a particular
community based on their unique religious personal laws.
DISADVANTAGES OF UNIFORM CIVIL CODE
·
Concrete Challenges Related To India's Diversity
Establishing a unified
set of norms for personal matters, such as marriage, is challenging in India
because of the vast diversity of Indian culture, which includes religions,
sects, castes, race, place of birth etc.
·
The Uniform Civil Code Viewed as a violation of
religious freedom
The Uniform Civil Code
has been criticized by many communities, particularly the minority ones, as an
infringement on their right to freedom of religion. They claim that their
customs would be disregarded by the Uniform Civil Code, which will instead
impose laws mostly shaped by the majority religious communities.
·
Interference Of State In Personal Matter
The Indian Constitution's
Articles 25 to 28 provide the freedom of religion. However, the Uniform Civil
Code's implementation will narrow the extent of religious freedom.
·
Tough and Sensitive Work
Adopting implementation of
marriage, maintenance, adoption, and succession with the idea that one community
should ensure benefits from others, as well as issuing legal decisions that
ensure gender equality. All of these changes make the implementation of the
Uniform Civil Code a sensitive and difficult task. The government must handle
minority and majority groups with compassion and objectivity, as this is an
extremely difficult the task that could result in even more devastating
outcomes like riots and inter-communal violence.
·
Time not yet suitable for this reform:-
Despite the strong
resistance from the Muslim minority in India, there are conflicts over love
jihad, saffronization of educational institutions, and beef. As a result, the
community needs a sufficient period to be infused with confidence; otherwise,
they would grow increasingly insecure as well as susceptible to being drawn to
extreme ideas.
JUDICIAL INTERPRETATION WITH RESPECT TO UNIFORM CIVIL CODE AND SECULARISM
Despite more than 50
years since the Constitution was drafted, the UCC objective stated in Article
44 has not yet been accomplished. However, attempts in this area persisted, as
seen by the Supreme Court's judgment.
·
"It
is also a matter of concern that Article 44 of our Constitution has remained a
dead letter," the Supreme Court declared in Muhammad Ahmed Khan v.
Shah Bano Begum[11]
popularly known as the Shah Bano's case. Muslim women would be
entitled to maintenance if the amount they received as "dower"
under personal law was insufficient for their subsistence, despite section 127
of Cr.P.C. 1973, which states that if a woman has received an amount under
personal law, she would not be entitled to maintenance under section 125 of
Cr.P.C 1973 after divorce. Despite strong criticism from Muslim
fundamentalists, the ruling was regarded as a liberal reading of the law that
was necessary for gender equality. Later, the Muslim women's (Protection of
Rights on Divorce) Act, 1986 was passed by the Central Government in response
to pressure from Muslim fundamentalists. This act denied Muslim women the right
to maintenance under section 125 of the Criminal Procedure Code. It was
properly criticized by the activists as "certainly a regressive
step." That further demonstrated how women's rights are not given much
emphasis, especially in India, a secular state. This led to the strengthening
of religious institutional sovereignty above women's rights[12].
·
In
the landmark judgement of Sarla Mudgal and others v. Union of India and
others[13],
Kuldeep Singh, J. held that "Ongoing governments have been entirely
negligent in their duty of implementing the Constitutional mandate under Art.
44." He also directed the Government to implement the directive principles
of state policy given under Article 44 and to file an affidavit illustrating
the steps taken in the matter. As a result, the Supreme Court asked the Indian
government, acting through the Prime Minister of India, to revisit Article 44
of the Indian Constitution and work on securing a UCC for all Indian citizens.
·
Connection"
in a civilized society between religious and personal laws, and The Supreme
Court upheld the validity of Sections 3 and 4 of the Muslim Women (Protection
of rights on Divorce) Act, 1986, declaring that they did not violate Articles
14, 15, and 21 of the Indian Constitution in Danial Latifi and Others v.
Union of India[14].
The Muslim wife is not entitled to maintenance under section 125 of the
Cr.P.C. since, according to section 3 of the Muslim Women (Protection of rights
on Divorce) Act,1986, her Muslim husband is required to provide reasonable and
equitable provisions for the future of the divorced wife, including
maintenance. A divorced Muslim woman who is unable to maintain herself after
the iddat period may file a maintenance claim against her relatives or the Wakf
Board under section 4 of the Act.
·
Concerned
about the disparities in marriage laws across different religions, the Supreme
Court in John Vallamattom v. Union of India[15],
a Public Interest Litigation brought by a Christian Priest and other Christian
community members, contested the constitutionality of section 118 of the
Indian Succession Act, 1925, and struck it down as
a violation of article 14 of the Constitution. This historic ruling highlighted
the need for a uniform civil code by Parliament. A three-judge bench emphasized
that there was no "necessary regretted that Article 44 of the Constitution
which allowed the state to "Endeavour" to secure a UCC for its
citizens across India had not been impacted. The Court continued on to argue
that "Parliament must continue to intervene to frame a UCC for the
Country. By eliminating the ideological contradictions, a UCC can promote the
cause of national integration.
·
Shayra Bano v. Union of India[16], The Supreme Court banned the
Talak-ul-Biddat practice in a relatively recent ruling, merging six petitions
related to the case. In terms of their fundamental human rights and the
equality that the Indian Constitution guarantees, Muslim women have achieved.
However, the ruling cannot be strictly interpreted in favor of UCC. The reasons
why this particular kind of Talak has mostly been an optional and forbidden practice
according to the relevant Muslim holy texts. The bench did not address the
issue of a constitutionally specified infringement of a fundamental right
alone. In general, the response to the question of whether a personal
legislation can violate a citizen's fundamental right is none. In presence of
such court precedent, each personal law provision must be examined in detail,
and not just in relation to the relevant religious scripture but also in light
of the Constitution.
RECENT DEVELOPMENT
The Uniform Civil Code
(UCC) of Uttarakhand Bill, 2024 was passed by the Uttarakhand Legislative
Assembly with the intention of unifying the laws relating to marriage and
property inheritance. To become law, the Bill simply needs the President's
approval. The Bill's required registration of live-in relationships, which
criminalizes them if certain requirements are not satisfied, is a worrying
aspect. This action calls into question the state's authority to control
interpersonal relationships in addition to violating individual autonomy.
CONCLUSIONS
The implementation of
Uniform Civil Code is a difficult process but it is possible. Dr.
B.R. Ambedkar’s Council
propounded a central path which discussed that it is perfectly possible that
future Parliament may make a provision by way of making a beginning that the
Code shall apply only to those who make a declaration that they are prepared to
be bound by it, so that in the initial stage the application of the Code may be
purely voluntary.
The term
"secular" is used in the preamble of the Constitution, which also
states that as the state is secular, it is not allowed to intervene in matters
pertaining to an individual's religion. However, since religion is a matter of
personal faith that cannot be mixed with secular activities and can be
regulated by the State through the enactment of laws, as the Supreme Court has
already held in the case of S.R. Bommai v. Union of India, we can
state that individual rights do not affect the unity and integrity of India.
Individuals' fundamental
rights are violated by the Uniform Civil Code of Uttarakhand Bill, 2024,
which mandates the registration of live-in relationships and may even make them
illegal. The Bill disregards the distinctive characteristics of partnership by
eliminating the distinction between it and marriage. Couples are not only made
to feel less confident by this action, but their right to privacy and autonomy
is also infringed. A democratic society must prioritize the values of equality,
privacy, and autonomy over the enactment of arbitrary restrictions on
relationships.
Thus, it can be concluded
by stating that the UCC amounts to equal laws for all sections of society. All
the people of India must be governed by one set of laws. For National unity and
integrity, and for secularism, UCC is necessary.
REFRENCES
1.
Constituent
Assembly Debates, Vol. VIII, (1949)
2.
Constituent
Assembly Debates, Vol. VII, (1949)
3. Chagla, M.C. Plea for Uniform
Civil Code, Weekly Round Table, March 25, 1973
4. United Nations, report of the
Committee on the Elimination of Discrimination against Women, Supp. No. 38.
5. Destha Kiran, Uniform Civil Code In
Retrospect And Prospect 2 (Deep & Deep Publication New Delhi 2002) (1995).
6. 6 Jain M.P., Indian Constitution Law
904 (5th Ed., Wadhwa And Company
Nagpur New Delhi 2008) (196)
7. Kumar Virendar, Towards a Uniform
Civil Code: Judicial Vicissitudes [from Sarla Mudgal (1995) to Lily Thomas
(2000)] 42 Journal of Indian Law Institute 315 (2000).