Author: Aishwarya Sinha, Amity Law School, Patna
TITLE:
Introduction: In my perspective, of all the contemporary legal issues gaining grounds in India, enactment of Uniform civil code is of utmost importance. Uniform civil code is one of the most cherished constitutional goals of India outlined in Article 44 of Directive Principles of State Policy. Art.44 of our constitution states that “ The state shall Endeavour to secure for the citizens a Uniform civil code throughout the territory of India.” Uniform civil code is a common set of laws which aim to govern every citizen irrespective of their religious scriptures and customs, gender, cast, class and faith . As such, its guiding principle is to provide equal status to all citizens before the law in order to achieve National Integration in letter and spirit. Uniform civil code is inspired with the ideal of “One Nation One Code” and proposes to replace Personal Laws of communities based on religious scriptures and customs with one Code for all citizens..
Historical Backgrounds: The origin of the uniform Civil Code could be seen during the colonial India when British govt. submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to Crimes, Evidence and Contracts. The report specifically recommended that Personal Laws of Hindus and Muslims be kept outside of such codification. Thus, Uniformity in Law was achieved, to a greater extent, during the British Regime through enactment of Indian Penal Code, Criminal Procedure Code, Civil Procedure Code, Indian Contract Act, Transfer of Property Act, Evidence Act etc.
Uniform civil code has great potential to encourage National Integration and Unification for the diverse segment of Indian Society. Keeping in view this high objective of Uniform Codification, the framers of the Indian Constitution provided Uniform civil code through Article 44 under the Directive Principle of state policy as a future commitment to the nation. Though, it was incorporated in the constitution as a desirable aspect that would be enforced when the nation be ready to accept it and the social acceptance towards the uniform civil code could be arrived. This is why it was placed under the Part of Directive Principles of State Policy which are only inspirational goals of Central and State Governments and can not be enforceable through a Court of Law.
Present Status: In India , the criminal laws are uniform and equally applicable to all irrespective of their religious beliefs .Though , the civil laws in India are influenced by faith and religious texts and have turned into laws that apply to certain group of people based on their religion, caste, faith and belief. It is popularly known as personal laws .The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts .For Hindus , personal laws are applicable to legal issues related to inheritance, succession, , marriage and adoption , co-parenting, partition of family property, maintenance , guardianship , and charitable donations. For Muslims , personal laws apply to matters relating to inheritance, wills, succession , legacies , marriage, wakfs , dowry, guardianship , divorce, gifts and pre-emption influenced from Quran .
Presently, both Hindus and Muslims are guided by their own Personal Laws applicable to them in matters referred above.
Significance of Implementation: The key objective of uniform civil code is to provide protection to vulnerable sections of society including women and religious minorities. Uniform civil code will not only harmonize diverse cultural groups across the country but will also instill a deep sense of national unity and integration within the Indian masses .Once the uniform civil code is implemented, it will work to simplify laws that are existing at present on the basis of religious beliefs such as the Hindu code bill , shariat law and other . The code will promote uniformity and simplification of complex laws such as, law relating to marriage, inheritance , succession , adoptions etc. thereby making them one for all . Thus the same civil law will then applicable to all citizens irrespective of their faith, religions and gender .
Pros and Cons: As we know , there had been great confusion and chaos in India as regards to diversity in laws . Undoubtedly , the uniform civil code shall provide equal status to all citizens irrespective of their religion , class , caste and gender. It will promote gender equality and bring both men and women at par in social, economical and political field. Uniform civil code will immensely contribute to arise the feeling of nationalism and National Integration within the country. In fact, it can act as a catalyst to spread and strengthen National unity and Harmony and thereby provide help to a greater extent in nation building . Today, all Indians citizens are equal before the court of law in the matter of criminal laws and other civil laws but personal laws are not the same for all, even today. Thus, Uniform civil code seems to be imperative in our country in order to promote equality and national integration across the country .
Uniform civil code promotes the ideas of “One Nation One Code”. The codification and unification of various personal laws in the form of one for all will reduce existing confusion and enable smooth and efficient administration of law. Uniform civil court will also act to strengthen the concept of secular nation by treating all citizens on the same plane and thereby promoting their Indian identity before their religious affiliation. It is a hard truth that personal laws of certain religions treat men and women unequally. Uniform civil code would eliminate gender inequality and lead to a more gender sensitive society . The Uniform civil code shall strengthen the Indian legal system with a parity in laws throughout the Indian territory.
However it is not an easy task to come up with a common and uniform set of rules for all religious communities in India .Due to diversity in India , Uniform civil code seems to be a daunting task to be enacted and implemented throughout the Indian territory. People of minority deem it “Undue Influence Of Majority Over Minority.” Generally , following two objections are raised against the UCC:-
Infringement of the fundamental right to freedom of religion mentioned in Article 25, and
Its being tyrannical to the Minority.
These objections do not appear to be proper and correct. The first objection is totally misconceived as clause (2)of article 25 specially saves secular activities associated with religious practices from the guarantee of religious freedom contained in clause(1) of Article 25. As to the 2nd issue , Dr.KM. Munshi logically exposed diversity of laws and their varying adherence within Hindus to Mayukha, Mitakshara and Dayabhag Schools.
Considering the diverse and Multifacet Population of India , the interest and sentiments of each religion are unlikely to be satisfied by UCC. Personal laws are actually derived from religious beliefs and any effort to disturb them may also cause internal disturbance in the country. Fearing from these facts , no government has dared to enact UCC since independence.
Critical Analysis: The uniformity in civil code has become a distant dream in India . There are many reasons for it. One of them is limitation of codification only with respect to Public laws and not to the personal laws . This is the reason, several customary laws have been left untouched in the area of Hindu law despite the generalization of personal laws through Hindu Code Bill . Likewise , prohibition of marriages among sapindas is still subject to customary law and provisions of sec 6 of Hindu succession act are not applicable to Mitakshara sect . On the other hand cementing the gap between the Hindus and Muslim personal laws seems to be quite impossible because the codifiers have been focused too much on the problems of religious minority, since beginning and particularly, their attitude towards Muslim personal laws have been so far very soft.
More over ,the Muslim population is considered to be substantial to resist any reform in relation to Uniform Civil Code . Further , they are too sensitive to allow any encroachment on their religion . We have been witnessed to the triumph of Muslim fundamentalism that our parliament was compelled to enact a retrograde law like Muslim Women (Protection Of Right On Divorce ) Act, 1986 which nullified the historic decision of Hon’ble Supreme Court of India in Md.Ahmad Khan v. Shah Bano Begum, A.I.R 1985 S.C.945, allowing maintenance to a muslim divorced wife. In another example , the judicial interpretation of even the most secular provision providing for maintenance to a economically needy woman under section 125 of CrPc , 1973 was underdone.
Introduction
In my perspective, of all the contemporary legal issues gaining grounds in India, enactment of Uniform civil code is of utmost importance. Uniform civil code is one of the most cherished constitutional goals of India outlined in Article 44 of Directive Principles of State Policy. Art.44 of our constitution states that “ The state shall Endeavour to secure for the citizens a Uniform civil code throughout the territory of India.” Uniform civil code is a common set of laws which aim to govern every citizen irrespective of their religious scriptures and customs, gender, cast, class and faith . As such, its guiding principle is to provide equal status to all citizens before the law in order to achieve National Integration in letter and spirit. Uniform civil code is inspired with the ideal of “One Nation One Code” and proposes to replace Personal Laws of communities based on religious scriptures and customs with one Code for all citizens.
Historical Backgrounds: The origin of the uniform Civil Code could be seen during the colonial India when British govt. submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to Crimes, Evidence and Contracts. The report specifically recommended that Personal Laws of Hindus and Muslims be kept outside of such codification. Thus, Uniformity in Law was achieved, to a greater extent, during the British Regime through enactment of Indian Penal Code, Criminal Procedure Code, Civil Procedure Code, Indian Contract Act, Transfer of Property Act, Evidence Act etc.
Uniform civil code has great potential to encourage National Integration and Unification for the diverse segment of Indian Society. Keeping in view this high objective of Uniform Codification, the framers of the Indian Constitution provided Uniform civil code through Article 44 under the Directive Principle of state policy as a future commitment to the nation. Though, it was incorporated in the constitution as a desirable aspect that would be enforced when the nation be ready to accept it and the social acceptance towards the uniform civil code could be arrived. This is why it was placed under the Part of Directive Principles of State Policy which are only inspirational goals of Central and State Governments and can not be enforceable through a Court of Law.
Present Status: In India , the criminal laws are uniform and equally applicable to all irrespective of their religious beliefs .Though , the civil laws in India are influenced by faith and religious texts and have turned into laws that apply to certain group of people based on their religion, caste, faith and belief. It is popularly known as personal laws .The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts .For Hindus , personal laws are applicable to legal issues related to inheritance, succession, , marriage and adoption , co-parenting, partition of family property, maintenance , guardianship , and charitable donations. For Muslims , personal laws apply to matters relating to inheritance, wills, succession , legacies , marriage, wakfs , dowry, guardianship , divorce, gifts and pre-emption influenced from Quran.
Presently, both Hindus and Muslims are guided by their own Personal Laws applicable to them in matters referred above.
Significance of Implementation: The key objective of uniform civil code is to provide protection to vulnerable sections of society including women and religious minorities. Uniform civil code will not only harmonize diverse cultural groups across the country but will also instill a deep sense of national unity and integration within the Indian masses .Once the uniform civil code is implemented, it will work to simplify laws that are existing at present on the basis of religious beliefs such as the Hindu code bill , shariat law and other . The code will promote uniformity and simplification of complex laws such as, law relating to marriage, inheritance , succession , adoptions etc. thereby making them one for all . Thus the same civil law will then applicable to all citizens irrespective of their faith, religions and gender .
Pros and Cons: As we know , there had been great confusion and chaos in India as regards to diversity in laws . Undoubtedly , the uniform civil code shall provide equal status to all citizens irrespective of their religion , class , caste and gender. It will promote gender equality and bring both men and women at par in social, economical and political field. Uniform civil code will immensely contribute to arise the feeling of nationalism and National Integration within the country. In fact, it can act as a catalyst to spread and strengthen National unity and Harmony and thereby provide help to a greater extent in nation building . Today, all Indians citizens are equal before the court of law in the matter of criminal laws and other civil laws but personal laws are not the same for all, even today. Thus, Uniform civil code seems to be imperative in our country in order to promote equality and national integration across the country .
Uniform civil code promotes the ideas of “One Nation One Code”. The codification and unification of various personal laws in the form of one for all will reduce existing confusion and enable smooth and efficient administration of law. Uniform civil court will also act to strengthen the concept of secular nation by treating all citizens on the same plane and thereby promoting their Indian identity before their religious affiliation. It is a hard truth that personal laws of certain religions treat men and women unequally. Uniform civil code would eliminate gender inequality and lead to a more gender sensitive society . The Uniform civil code shall strengthen the Indian legal system with a parity in laws throughout the Indian territory.
However it is not an easy task to come up with a common and uniform set of rules for all religious communities in India .Due to diversity in India , Uniform civil code seems to be a daunting task to be enacted and implemented throughout the Indian territory. People of minority deem it “Undue Influence Of Majority Over Minority.” Generally , following two objections are raised against the UCC:-
Infringement of the fundamental right to freedom of religion mentioned in Article 25, and
Its being tyrannical to the Minority.
These objections do not appear to be proper and correct. The first objection is totally misconceived as clause (2)of article 25 specially saves secular activities associated with religious practices from the guarantee of religious freedom contained in clause(1) of Article 25. As to the 2nd issue , Dr.KM. Munshi logically exposed diversity of laws and their varying adherence within Hindus to Mayukha, Mitakshara and Dayabhag Schools.
Considering the diverse and Multifacet Population of India , the interest and sentiments of each religion are unlikely to be satisfied by UCC. Personal laws are actually derived from religious beliefs and any effort to disturb them may also cause internal disturbance in the country. Fearing from these facts , no government has dared to enact UCC since independence.
Critical Analysis: The uniformity in civil code has become a distant dream in India . There are many reasons for it. One of them is limitation of codification only with respect to Public laws and not to the personal laws . This is the reason, several customary laws have been left untouched in the area of Hindu law despite the generalization of personal laws through Hindu Code Bill . Likewise , prohibition of marriages among sapindas is still subject to customary law and provisions of sec 6 of Hindu succession act are not applicable to Mitakshara sect . On the other hand cementing the gap between the Hindus and Muslim personal laws seems to be quite impossible because the codifiers have been focused too much on the problems of religious minority, since beginning and particularly, their attitude towards Muslim personal laws have been so far very soft.
More over ,the Muslim population is considered to be substantial to resist any reform in relation to Uniform Civil Code . Further , they are too sensitive to allow any encroachment on their religion . We have been witnessed to the triumph of Muslim fundamentalism that our parliament was compelled to enact a retrograde law like Muslim Women (Protection Of Right On Divorce ) Act, 1986 which nullified the historic decision of Hon’ble Supreme Court of India in Md.Ahmad Khan v. Shah Bano Begum, A.I.R 1985 S.C.945, allowing maintenance to a muslim divorced wife. In another example , the judicial interpretation of even the most secular provision providing for maintenance to a economically needy woman under section 125 of CrPc , 1973 was underdone.
Infact our parliament has not made so far any serious effort to ensure Uniform civil code for all for the obvious reason that our political leadership does not intend to affect the continuity of religion based personal laws . Virtually , Uniform Civil Code has fallen victim of Religious Intolerance , Politics of Votes , Fundamentalism , Resistance against Change and inherent prejudices of different Religious Sects . This has been exposed by the Supreme Court in number of cases.
The then CJI Y.V. Chandrachud commented in ShahBano Begum’S Case as “ Art. 44 of our Constitution has remained a dead letter and there is no evidence of any official activity for framing a Common Civil Code for the country.” In Jordan Diengdah v. S.S. Chopra , Justice C.Reddy emphasized the immediate and compulsive need of a Uniform Civil Code in India. In Sarla Mudgal, President, Kalyani v. Union of India, Justice Kuldip Singh reminded the utterances of Pandit Nehru while introducing the Hindu Code Bill and condemned the Government attitude of indifference and apathy towards enactment of Uniform Civil Code.
However, The Special Marriage Act, 1954 is the single law passed in post independence era by Parliament in tandem with the Uniform Civil Code. Parties to marriage under this act can enter into marriage while retaining their religion. The another attempt was made by the Indian Parliament when Indian adoption Bill, 1972 was introduced in the Council of States but unfortunately, It could not be passed.
Uniform Civil Code has been a major issue in Indian Politics. Bhartiya Janata Party has been pushing the issue for long and calls for a legislation on it. The issue has also been enlisted in the election manifesto of BJP in 2014 and 2019 Lok Sabha Election. Modi led BJP Government is trying its best to arrive at a general consensus over the issue but unfortunately Opposition Parties appear to be more keen on playing religious card for minorities votes rather than supporting the cause of Nation building. Though, It is a big achievement of Modi led BJP Government that Triple Talaq has been prohibited in India vide Muslim Women ( Protection of Rights on Marriage) Bill, 2019 passed by the Indian Parliament and made the instant Triple Talaq a criminal offence in India.
Conclusion
In view of above analysis, we can conclude that uniformity in basic Civil Laws is an imperative task given to the Government in order to bring all communities on the common platform for ensuring national integration and unification in India. Political Leadership of India should not forget the fact that Uniform Civil Code is the commitment in the form of promise made by the Constitution of India to be fulfilled in future. As such, It is the need of hour to enact Uniform Civil Code for entire Indian territory in order to strengthen Socialist Democratic Secular Republic of India in true sense
FAQS
1. What is the Uniform Civil Code (UCC)?
Ans : The UCC a single set of secular laws for all citizens of India. It replaces the personal law based on religions . The main purpose of UCC is to ensure equality, secularism, and justice across all religions in matters such as marriage, inheritance, adoption, divorce and maintenance.
2. Why is there a debate over UCC in India?
Ans :It is considered as a topic of debate in India because some people are totally encourage it while the other half population of India is against of it. Some says that it will promote equality and national integrity while the other criticize it considering that it violates the religious freedom of the people.
3. Is the UCC mandatory in India?
Ans : The constitution of India does not mandate the implementation UCC, It only sates in the directive principles saying that states must promote it in order to make India more secular.
