Without a Uniform Civil Code, labeling India a Secular nation is just an
illusion[1]
Abstract
The Uniform Civil Code, or UCC, has been the subject of heated controversy for
many years. The term itself makes it clear that it aspires to harmonize civil
laws in India, making them equal for every Indian, regardless of caste, color,
gender, race, religion, place of birth, etc. It will also be non-discriminatory
and grant everyone equal rights.
It seeks to achieve parity in the law for men
and women as well as between the many religions. Current personal laws are
perceived as deviating more from the norm or giving men more power while placing
women beneath them. This is a question that, if answered positively, might lead
to gender equality, which would grant men and women the same rights.
The author
has made an effort to respond to this query by demonstrating how gender
imbalance occurs in personal laws and how UCC can effect change or truly
eliminate this inequality. However, our nation must evaluate itself when it
comes to putting the word "secularism" into practice and attaining its goals.
Introduction
When India's Constitution was being drafted in 1948, pluralistic values were a
major source of dispute. The Constituent Assembly was divided over it; they
discussed it for months without agreeing to make a compromise. Do you understand
why the compromise failed? The Uniform Civil Code is a single, universal civil
code. Personal laws would have been abolished as a result. How do personal laws
work? The rules were based on religious writings and scriptures, which
controlled practically every area of life.
Everything, including marriage,
divorce, inheritance, adoption, and guardianship. Many of these laws were unfair
and discriminatory towards women and minority groups. The Shariah law has rules
that prevent women from inheriting property. Certain Hindu traditions prohibited
women from getting married again. Therefore, the constituent assembly sought the
abolition or restriction of such legislation.
They want to establish a
constitution for India that would ensure that all individuals, regardless of
their sexual orientation, gender, or religion, are subject to the same rules.
Gender equality is one of the objectives of the Indian Constitution, which
advocates equal rights for men and women. Unless women are given the freedom to
live in society with dignity, gender equality is considered to be a fundamental
human right.
Many provisions are mentioned in Parts III and IV of the Indian
Constitution to ensure gender equality. The Directives Principles of State
Policy, which are essential to the governing of the country, are outlined in
Part IV. While passing laws, the State has to carry out these instructions.
Dr. B. R. Ambedkar observed, "I don't understand why religion should be given
such vast, all-encompassing power to encompass every aspect of life and forbid
the government from intruding there" during the Constituent Assembly discussion.
Why, after all, do we enjoy this freedom? Our social structure is so full of
injustices, discriminations, and other problems that violate our basic rights
that we can enjoy this freedom.
Research Question
- Can India adopt a uniform civil code (UCC) without endangering its religious traditions and customs?
- What connections exist between the Uniform Civil Code (UCC) and gender equality, and what modifications to personal legislation are necessary?
- What is the uniform civil code's judicial overview? Will establishing UCC through a legal framework have any effect on the government?
Hypothesis
The adoption of the uniform civil code (UCC) will enable gender equality through
the legal system. Being referred to as a secular nation, it is crucial to
respect the religious practices and teachings of all major faiths, but it is not
required to establish personal laws that are different based on religion. India
needs to adapt to become a developed country, which it can do by enacting the
Uniform Civil Code (UCC).
Research Methodology
Research is an investigation into the validity of a novel hypothesis or the
addition of new knowledge to preexisting hypotheses. Research is the process of
developing, gathering, and reinforcing principles as well as gathering and using
empirical data to aid in the research process. Research methodology is a
methodical inquiry to learn more new information regarding the phenomena or
issue in question. In the broadest sense, the entire research process' mindset
and practices are included in the methodology.
It offers the criteria that the
researcher employs while combining data and study findings. The topic for this
study was to assess the necessity for a uniform civil code to uphold gender
justice and to determine whether the uniform civil code is appropriate given the
shifting demands, goals, and aspirations of modern society.
In the course of the investigation, the researcher correctly applied the
doctrine technique. All India Reporter, Supreme Court Cases, Journal of Indian
Law Institute, and other journals, as well as research papers in this field,
significant Acts, Government publications, and Constituent Assembly debates, are
examples of secondary sources from which materials are gathered. Authentic
books, pertinent magazines, articles, features, commission reports, and
unpublished work are some of the extra sources.
Uniform Civil Code (UCC) A Step Forward For Gender Equality
The goal was to have one nation and one law, but it was not to be. The reason
the Uniform Civil Code (UCC) was not included in the constitution was that at
the time, India was a vast and diverse country with a variety of religions,
ethnicities, customs, and social structures. In addition, there was strong
opposition to the Uniform Civil Code (UCC). Both orthodox Hindus and Islamic
fundamentalists wished for Shariah and Shastras to govern personal rules.
They
were concerned that the Uniform Civil Code (UCC) would unleash a Pandora's Box.
They claimed it posed a threat to religious freedom because it would weaken
their position of leadership. They ought to alert people to the nation's social
discontent. The Indian Constitution's founding fathers backtracked and made the
proposal optional in Article 44's Directive Principles of State Policy, known as
DPSs.
Part IV, Article 44 of the Constitution states, "The State shall endeavor
to secure the citizen a Uniform Civil Code (UCC) throughout the territory of
India[2]." It only said this. Only in name did the Uniform Civil Code (UCC)
continue to be in effect. When India was prepared to accept it, they decided to
put it into action. It is still a proposal and is still debatable after seven
decades. When will India adopt a uniform civil code? One law applies to all
citizens. One law, for one nation, would be used to govern India.
India being a diversified country touches the tip iceberg of numerous customs,
beliefs, traditions, culture, etc., and finally grasps the stage of
superstitious beliefs and social stigmas. The most mesmerizing fact to the point
is societal norms are getting replaced by new norms of evil practices and
customs.
The current scenario runs through three major phases comprising social
taboo gender, stereotype, and stigmatized molestation. The forbidden matters are
concerned under the head of social taboos, whereas stereotype and stigmatized
molestation depict superstitious beliefs and sexual abuse and violence against
oppressed categories and women.
The existence of gender inequality was an ancient practice the reality is they
are still prevalent. Categorization cannot be made from the head, as it applies
to both women and males and in this phase, equal rights to both must be
practiced to fulfill their potential. The dominancy of social taboos is ten
times more powerful than our statutory laws. Religion and taboo run like a
master-servant relationship as religion employs the taboo in a specific
direction to act.
Shifting from the phase of social taboos to stereotypes, they
create an unequal socioeconomic disparity among men and women resulting from
gender stereotypes. TMT known as Terror Management Theory is a mindset
stimulation that urges the people in the society to understand morality leading
to likelihood through the gender stereotype. Consciously acting in the
prescribed manner can only serve as a remedy for stereotypes.
Historical And Constitutional Traces Of UCC
The Romans are where the Uniform Civil Code (UCC) originated, according to
historians. They were controlled by civil law rather than a sacred book. The
Mesopotamians did the same thing; they adhered to the Ur-Namo code, which is
said to be the oldest law code in human history and which encouraged individuals
to view themselves as a single family with a single set of norms. Another
illustration is the US Constitution. All citizens are required to abide by the
same laws under American law, which regards everybody equally.
However, this is
not the situation in India. It is a large, diversified country with a deliberate
disarray of social institutions, faiths, and ethnicities. At the time of
independence, it was thought to be an impossible feat to bring such a nation
under one legal system. Both orthodox Hindus and Islamic extremists fiercely
opposed the idea of a single civil code.
They desired those personal laws to be
determined by "Shariya" and "Shastra." They referred to the Uniform Civil Code
or UCC as a threat to religious freedom because they thought it would unleash
Pandora's Box and weaken their position. As a result, when it comes to property
and inheritance rights, laws in India are dependent on geography as well as
religion, caste, culture, and even geography.
For instance, traditional rules do
not apply in the northeast Indian states of Nagaland, Meghalaya, and Mizoram. No
matter how archaic, people create their unique laws based on their practices and
customs. Regarding religion, the Quran establishes some personal regulations for
Muslims in India, most of which have to do with inheritance, marriage, divorce,
and child custody.
Under sharia, a woman's right to alimony, her inheritance of
property, and even her right to adopt a child are all decided, leaving her at
the mercy of the Muslim Personal Law Board, a body largely controlled by men and
influenced by clerics.
All of the Indian laws in force today in India incorporate elements of English
law. The British were extremely helpful in establishing a unified set of laws to
manage the nation's laws throughout their control. This is quite clear in the
First Law Commission's 1840 report, known as the "Lex Loki" or "Law of the
Place" Report. The major reason for establishing this first law commission was
to investigate the practicality of establishing the uniform civil code (UCC) in
the nation.
But in 1995, with the judgment of
Smt.Sarla Mudgal, President,
Kalyani and others v. Union of India and Others, the apex court addressed the
government to take effective measures in implementing Article 44 of the Indian
constitution and to present an affidavit outlining the steps and measures taken
in implementation of Article 44. As a result, the hope for the implementation of
the uniform civil code or UCC was once again raised.
The happiness, however, was
short-lived because the Apex Court issued a reversed decision, holding that the
removal of gender bias and discrimination is a state issue, not a matter for the
court to address. Many activists who believed the implementation of the Uniform
Civil Code or UCC had gotten off track strongly disagreed with this ruling[3].
However, the Commission's final report, which said that it is necessary for the
codification of the Uniform Civil Code or UCC, has dashed hopes of its
implementation. Think about it if different communities and different rules
there would be friction and divisions and the British would use it to their
advantage. Unfortunately for India, this continued even after the Independence
and not for lack of trying.
All of them, from Dr. B. R. Ambedkar to Jawaharlal
Nehru, favored the introduction of a civil code in place of personal laws. The
Honorable Supreme Court of India said a common civil code will help the cause of
national integration by removing disparate loyalties to laws that have
conflicting ideologies.
The State Of Goa As A Model To Adopt
The only state in the nation that has adopted the Uniform Civil Code (UCC) is
Goa. The "Goa Family Law" is a body of civil law that applies to all Goans,
regardless of caste, religion, or race. It has its origins in the Civil Code of
1876, which was enacted under the Portuguese era of control.
These laws have
brought about gender justice and equality by stating that Muslim men in the
state do not have the legal right to commit bigamy by uttering the word "talaq,"
and that after a divorce, property is divided equally between the parties. These
laws also stipulate that income is shared equally between men, women, and
children.
Shri Rajnath Singh, a minister in the current administration, stated, "Whenever
we talked about the Ram Mandir, people made fun of us and said we had no other
issues to discuss, but we kept our word. We also committed to Article 370 and
the triple talaq, which we kept. We'll carry out our commitments under the
Common Civil Code, too".
Uniform Civil Code Remained As A Dead Letter For The Critics
UCC regained momentum in the 1980s thanks to The Shah Bano Case. After 40 years
of marriage, her husband suddenly deserted her and refused to support her
financially. She was only entitled to three months of alimony under Muslim law.
She went to the Supreme Court only three months after 40 years of marriage for
justice, and the judge found in her favor. Maintenance was given to Shah Bano.
Muslim politicians and clerics objected, claiming that the verdict was against
Islamic law. The Rajiv Gandhi administration issued the Muslim Women Protection
Act, of 1986, which reversed the Supreme Court's decision.
It limited Muslim
women's alimony rights to 90 days. Critics claim that this action is
anti-secular and would target Muslims in India. Political and religious
organizations, as well as tribal populations from the northeast, are opposed to
it because they believe it is a plot to force the Hindu majority's view on the
minority.
The UCC's supporters disagree, claiming that it will only promote uniformity and
uplift disadvantaged religious communities and women. They point to the state of
Goa, the only one in India with a Portuguese-instituted standard civil code that
is still in use. Many Islamic nations, including Morocco, Turkey, Tunisia,
Egypt, and Jordan, have changed their laws to prevent abuse. According to their
respective constitutions, they have all codified personal laws. Polygamy is
outlawed in Tunisia and Turkey. Triple talaq is forbidden in Jordan and Egypt.
If Muslim nations may update their own laws and Western democracies can adhere
to a single civil code, why are Indians still subject to rules enacted before
independence?
This is a more legal than political concern. It's not that other religions lack
orthodox practices. Every religion in India has discriminatory personal laws.
For instance, despite the differences in their customs and cultures, Sikhs,
Jains, and Parsis are subject to the same rules as Hindus regarding succession
and inheritance. Christians too have imbalanced inheritance laws.
It is time to put an end to everything and unite India under a single body of
law. While this makes perfect sense, it is still debatable due to political and
religious forces that misinterpret it. After seven protracted decades of
independence, it is now appropriate to reach an understanding, gather
specialists from all ethnicities and religious backgrounds, take the best
aspects of their customs and practices, adapt them to the modern world, and put
them together under a single civil code.
Personal Laws Already In Place And Their Function In Ensuring Gender Equality
It is no secret that religious doctrines and traditions served as the foundation
for India's laws. As a result, depending on one's faith, personal legal issues
like marriage, divorce, adoption, inheritance, maintenance, etc., vary from
person to person. We will talk about personal laws in India and how they
contribute to gender equality.
Hindu laws
The Hindu faith, which is very old and has a lengthy history in India, is
practiced by the majority of the country's citizens. The entire idea of Hindu
mythology is predicated on a notion called "Dharma," which in translation means
righteousness. The Hindu rules were not developed from a single script but
rather from multiple scriptures and scripts that have been around for many
generations. On the other hand, the 'Smriti' and 'Shruthi', which are based on
the Vedas, Dharmashastra, and Puranas, which are regarded as the sources of
Hindu laws, are described in ancient Hindu history.
Hindu Personal Law and Gender Equality
Hindu mythology accords greater importance to women, who are revered as
goddesses and treated with honor and honesty. However, this is hardly a
justification for claiming that Hindu women received the same treatment as
males. Hindu personal laws contain the art of inequality. Women were granted the
status of possessing equal rights in 2005.
Men used to have the upper hand in
possession, while women were denied this privilege, demonstrating the inequity
that permeated Hindu personal laws. As a result, Hindu personal laws in civil
affairs of marriage, divorce, adaption, guardianship, and inheritance are
largely beneficial to defend Hindus' rights by their teachings and practices but
are somewhat out of date given the current situation. Men and women are treated
equally under the laws governing rights in the modern world.
Muslim Laws
It is commonly known that Islam is one of the world's most popular religions.
Islam appears to be somewhat different in India, even though its spiritual
precepts are the same around the world. This is because Indian Islamic law is
unique. I'll now discuss the background and roots of Muslim personal law. In
addition to the Quran, which is their sacred book, the four schools for Sunnis
are distinct from one another. The four schools were the Hanafi, Sahafi, Hanbali,
and Maliki sects.
Muslim Law and Gender Equality
Muslim personal laws do not promote gender equality, which is a drawback of
Islamic rules. Islamic law never accords women an equal standing to men; they
always come second. Every judgment that the Indian civil courts have rendered in
Muslim matters serves as proof of this. When it comes to marriage, age is always
a deciding issue. According to the law, a girl who turns 18 and a boy who turns
21 must legally get married.
However, the situation is somewhat different for
Muslims. As a result, even Islamic personal regulations that were based on
religious teachings and customs could not be used as justification for the
causes of gender disparity. The adoption of the Uniform Civil Code (Code) is
made more essential by these provisions. In the case, Justice J.B Padriwala has
said that "According to the personal law of Muslims, the girl, no sooner she
attains puberty or completes 15 years of age, whichever is earlier, is competent
to get married[4]".
Other Personal Laws
The gender gap was not excluded from the personal laws of Christianity. Before
2001, a husband just needed to provide evidence of adultery to receive a
divorce, whereas a wife had to provide evidence of bigamy, adultery,
dissertation, etc. But following the modification in 2001, both men and women
were now able to enjoy equal enjoyment. One such instance of case Mary Roy v.
State of Kerala.
"Nearly 47 years after the founding of the Constitution, Mary Roy has challenged
the Travancore Christian Succession Act of 1916, a Christian personal law that
is religiously prejudiced. According to the 1916 Travancore Christian Succession
Act, giving the daughter rights and one-fourth of the son's shares was extremely
unfair. The children of a Parsi woman who married a non-Parsi, however, do not
have this trait. Several local women have complained about the behavior and
requested judicial action".
Common Civil Law as a Personal Law Alternative?
When we consider every flaw in the personal laws, it becomes abundantly clear
that these laws require a full revision to protect women's rights and promote
gender equity. India is a secular nation that values all religious views with
great curiosity. But it is also clear that these could harm the next generation
because attitudes about gender roles and the teaching of how to live- in harmony
with nature have altered from previous generations. Therefore, it is also clear
from nature that laws need to be changed.
Due to the prevalence of common civil laws in Western countries, the common
civil code is never a foreign concept. In plainer terms, the common civil code
is the common law that applies to everyone, regardless of caste, race, creed, or
religion. Customs, for example, might become a remedy for these private laws
that deny women their rights.
Many academics have argued that by reducing court
time and making laws easily accessible to the people, these common civil laws
might significantly contribute to making the delivery of justice in India a
beneficial development.
Suggestions
Some of the recommendations need to take into account whether or not the Uniform
Civil Code (UCC) should be implemented. Because the unified civil code (UCC) is
a socio-legal topic, many people oppose it, and those who have strong opinions
in favor of it.
The issue has been utilized as a vote bank by numerous political
parties, but their campaign promise has never materialized. Following thorough
research on the matter, the following recommendations could be made regarding
the Uniform Civil Code's actual implementation:
-
Establishing Article 44 of the Indian Constitution into existence:
- Article 44 clearly says, "The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India"[5]. This should come into existence.
-
A judicial panel to consider the requests of religious leaders for creating common law:
- To speak with the leaders of the various religions, a committee of judges, senior attorneys, professors of law, and highly qualified legal academics should be constituted.
-
To create a uniform civil code (UCC) based on moral principles and fundamental rights, giving religious practices and doctrines less weight:
- The legislation of the impending uniform civil code (UCC) must be founded on morality and fundamental rights, giving religious practices and doctrines less weight.
-
To include gender equality as a topic in the classroom:
- Children should be required to study gender equality in school. Despite having legislation like section 498A of the IPC, we are unable to completely address the issue at hand. Only by raising people's understanding and consciousness will this be possible.
-
To establish expedited courts for civil cases involving personal laws:
- Due to the courts' arduous task of examining personal laws that differ for each religion, the Uniform Civil Code (UCC) can make court work easier and verdicts and timely than usual.
Conclusion
Regardless of how unique their customs and traditions are. Is it time to end
this now? To reunite India under a single law would be sensible. However, due to
political misinterpretations and misuse by religious forces, it continues to be
divisive. Constructing an agreement requires bringing together specialists from
many communities and stages.
Take the best elements of their customs and
methods, adapt them for the present, and bring them together under a single
civil code. The Uniform Civil Code has significant advantages that contribute to
the general improvement and development of Indian society, despite being the
subject of bitter disputes.
End-Notes:
- Vikram Singh Slathia, Vikram Singh Slathia Quotes, Goodreads, https://www.goodreads.com/author/quotes/16121494.Vikram_Singh_Slathia (Aug 27, 2023, 11.35 AM)
- INDIA CONST. art. 44
- Ahmadabad Women's Action Group (AWAG) v. Union of India, (AIR 1997, 3 SCC 573)
- Yunusbhai Usmanbhai Shaikh v. State of Gujarat, 2015(3) GLR 2512.
- INDIA CONST. art. 44
Written By: Surya. A. Nair
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