Abstract
The research paper throws light on the issue pertaining to the Uniform Civil Code (UCC) and deals with the legal perspective of its flexibility in India.
Background And Context
The implementation of Uniform Civil Code (UCC) is one of the most debatable topics of the contemporary times. Uniform Civil Code seeks to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen.
Constitutional Basis
Uniform Civil Code (UCC) finds its reference in our Constitution under Article 44 of Directive Principles of State Policy (DPSP) which states that it is the duty of the State to secure for its citizens a Uniform Civil Code (UCC) throughout the territory of India.
Objectives Of The Paper
- The paper aims to provide its reader a detailed insight of Uniform Civil Code (UCC).
- The merits that it will product upon its implementation.
- The issues that is hindering the implementation of the same.
Approach Of The Authors
Authors have tried to discover a pragmatic approach to Uniform Civil Code (UCC).
Research Methodology
| Aspect | Details |
|---|---|
| Nature Of Study | The study is based on secondary sourced data |
| Sources Used | Books, magazines, journals and articles |
| Method | These have been explored for the study |
Introduction
India Is A Long Way From Being A Congruent Nation State And Is A Home To The Most Assorted And Variable Mélange Of Populace And This Diversity Has No End. There Is Diversity In Culture, Customs, Faith, Rituals And Religion. This Diversity Blends Up And Make A Concoction Of A Vibrant Yet Difficult To Handle Populace.
While There Is A Criminal Code Applicable To All The Citizens Of The Country Irrespective Of Their Religion, Race, Caste, Sex, And Place Of Birth, There Is No Similar Code While Regulating Marriage, Maintenance, Divorce, Adoption And Succession Which Are Regulated By Personal Laws.
At Present, Even After Passing Of The 72 Years Of The Indian Constitution, Uniform Civil Code (UCC) Has Not Been Actualized Yet In India. Now The Dilemma That Surrounds It, Is That Whether It Is Expedient Enough To Have A Uniform Set Of Civil Laws Or Not?
Meaning Of Uniform Civil Code (UCC)
Before Heading To Term Uniform Civil Code (UCC), It Is Pertinent To Note That Uniform Civil Code (UCC) Is Not An Exotic Term. It Is Defined Under Article 44 Of The Indian Constitution As “State Shall Endeavor To Secure For The Citizens A Uniform Civil Code Throughout The Territory Of India”.
The Idea Of Uniform Civil Code (UCC) Essentially Involves Replacing Personal Laws Based On Scriptures, Statutes And Customs Of Every Religion In The Country With A Common Set Of Rules And Regulations, Governing Each And Every Citizen.
Uniform Civil Code And Core Concerns
Uniform Civil Code (UCC) Basically Includes The Subject Matter Of Secularism And Gender Biasedness. Secularism Is A Concept Which Needs To Be Broken Down And Analyzed At An Incredible Length.
There Are Various Interpretations Of Secularism And It Is On The Basis Of Those Interpretations, Uniform Civil Code (UCC) Is Both Celebrated And Censured. Some Consider It As Anti-Secular, While For Some, It Is A Herald Of Communal Harmony And Secularism.
Also, The Idea Of Uniform Civil Code (UCC) Questions The Human Rights Of Women, Which Looms Large In The Background. Thus, It Is Now To Be Comprehended That Uniformity In Personal Laws Which Prompt Equivalent Status To The Women Or Would Simply A Communal Agenda.
Historical Background
The Second Law Commission, Initiated By The British Government, Which Presented Its Report In 1835, Which Focused On The Requirement For Consistency In Codification Of Indian Law Identifying With Wrongdoings/Crimes, Evidences And Commitments/Contracts, Nonetheless, Explicitly Suggested That Personal Laws Of Hindus And Muslims Ought To Be Kept Outside Such Codification.
Indian Constitution Dates Back Its Reference From The Time When The First War Of Independence Was Found In 1857. The Then People Of Our Country, Tried Their Level Best To Frame The Basic Law Of The Land As The Indian Constitution.
Uniform Civil Code In Constitutional Drafting
Uniform Civil Code (UCC) Was First Given Under Article 35 Of The Draft Of The Indian Constitution, But When The Constitution Was Prepared, Then This Article Was Renumbered As Article 44.
Simply Envision The Situation In 1955. The Country Had Been Free For Only Eight Years. Parliament Worked For A Long Time To Attain This Place. The Kashmir Issue Was At That Point Giving A Migraine To The Principal Prime Minister, Jawaharlal Nehru.
There Was Such A Great Amount To Accomplish For The Nation After About 300 Years Of Frontier Rule. He Had His Hands Full. However, He Thought Of Endeavoring Codification Of Hindu Ceremonies And Customs As A Feature Of His Reformist Vision.
The Procedure Had Hitherto Started In The Constituent Assembly. A Hand-Picked Board Had Been Framed To Draft Another Hindu Code To Systematize Social Practices.
Need For Uniform Civil Code
There are many people belonging to different religions, race, castes, and class. The believed principle of law is that individual faiths and law must go hand in hand. They must not be in ambiguity with the Constitution. With different conviction frameworks, come various ideological clashes. To live respectively in simultaneousness with such decent variety, we have to have consistency at some level to keep away from such clashes.
What we need is a Uniform Civil Code as a modern, orchestrated arrangement of lawful guideline that keeps up and handily utilizes the contribution of individual laws but then accomplishes a proportion of legitimate consistency.
Need And Importance Of Uniform Civil Code
There are many reasons that rationalize the need for Uniform Civil Code (UCC). It is the 21st century, and there is a need of an hour to provide equal treatment to all people, to promote gender justice and to have national integration.
Patriarchal Structure And Inequality
We live in a patriarchal society where the men are treated as the rulers of the family and women as subordinate to them. It is truly evident that women face intolerance, prejudice over men and till today, the thinking of people have not changed. Men are given prime concern in case of inheritance and succession.
Diversity And National Need
India being a country of diverse culture, traditions, religions and castes. There is a high need for Uniform Civil Code for the betterment of the country. The main reasons or views why a multi-lingual country like India need Uniform Civil Code.
Key Reasons For Uniform Civil Code
- Focusses On Secularism: We find that in many areas of India, secular structure is seen while not in some part. A Uniform Civil Code, will help in having identical rules or laws for people belonging to different religions be it, Hindu, Christian, Muslim or Sikh. The implementation of Uniform Civil Code does not mean there would be discrimination on the basis of religion.
- Equal Treatment To All: Equal treatment implies equal status to all the people at large. A Muslim can marry multiple times, but if a Hindu, Christian or Sikh undergoes multiple marriages, they will be prosecuted for the same. It doesn’t seem that there is equality at all. If all the laws related to marriage, divorce, maintenance are different, then it would be an issue that which laws to follow. So, it is a must to have similar laws to have equal status to all.
- Gender Justice: India, being a patriarchal and a strongly prejudiced against women society, have not provided any rights or equal status to women, even though they are about fifty percent of the total population. The women are subjugated and treated badly. The implementation of Uniform Civil Code (UCC) will help in changing the perspective towards women.
- Modernized Country Needs UCC: It is a sign of modern nation. It is a sign that a country has moved away from caste and religious politics. A uniform civil code is of an absolute necessity for individuals belonging to different religions and denominations and it is imperative for the promotion of national unity and solidarity. Thus, divergent religious ideologies must merge and culminate in to common and unified principles and objectives.
- Source Of Integration: India, as divided by various different religions, castes and class, will be integrated towards each other only through the implementation of Uniform Civil Code (UCC).
Uniform Civil Code And Secularism
A uniform civil code can never infringe the opportunity of individuals to follow their religion; all things considered, it implied that everybody will be dealt with similarly. This will be the genuine significance of secularism and a secular state.
Democracy And Vote Bank Politics
We are a democratic country where people elect their representatives for the betterment of the country. We say that we are democratic, yet we fail to understand that what dirty politics these ministers are up to. They are into vote bank politics. By bringing UCC, this vote bank politics can be stopped or reduced to ashes.
The so-called ministers take claims that they will focus on betterment of under-privileged people and take lots of money. But, if Uniform Civil Code, gets its way cleared then, this vote bank politics will be eradicated.
UCC And Interpretation Of Secularism
The guideline of UCC basically includes the subject of secularism. Secularism is a rule which should be dissected at an incredible length.
There are different translations of secularism and it is on the special stepped area of every one of these understandings, the UCC is both celebrated and scrutinized. A few groups of our general public think about the UCC against common while some see it as the harbinger of shared concordance and secularism. Ultimately, the topic of human privileges of Indian ladies poses a potential threat out of sight of UCC.
Judicial Review on Uniform Civil Code
The Supreme Court in several cases referred to the mandate of Article 44 and the necessity for its implementation and indicated in some of them that a uniform civil code would promote national integration. In Sarla Mudgal v. Union of India[1] the Supreme Court sought to know the Government’s opinion and directed filing of an affidavit indicating the steps taken and efforts made by the Government towards securing a uniform civil code.
Government’s Affidavit in Response to Sarla Mudgal
As required by the Mudgal[2] judgment, the Government of India filed a counter-affidavit dated 30.8.1996 and a supplementary affidavit dated 5.12.1996 that the Government would take steps to make a uniform civil code only if the communities which desire such a code approach the Government and take the initiative themselves in the matter.
A copy of Dr. Ambedkar’s speech in the Constituent Assembly on 2.12.1948 re: Draft Article 13, that is, present Article 19, to support the view that Parliament’s sovereign power should not be exercised to provoke any section of a community and that the exercise of the power must reconcile itself to the sentiments of different communities. (CAD Vol. VII, 781-82) was also annexed.
Dr. B.R. Ambedkar’s Views in the Constituent Assembly
Remarkably, in that speech Dr. Ambedkar had stated that the debate regarding saving of personal law and bringing about a uniform civil code was closed after Draft Article 35 i.e. present Article 44 was adopted on 23.11.1948.
- Religion should be limited to where it truly belongs and should not cover the whole of life.
- In social matters, excessive religious control would lead to stagnation.
- The liberty guaranteed by the Constitution enables reform of a social system full of inequities, inequalities, and discriminations.
- It is impossible to conceive that personal law shall be excluded from the jurisdiction of the State.
Judicial Developments After the Mudgal Case
It is pertinent to trace the developments and the judicial response in this behalf after Mudgal case. In Lily Thomas[3] the Supreme Court dismissed a review petition against Mudgal clarifying that no directions were issued in Mudgal to bring in a uniform civil code.
The Court also took note of the Government’s statement that the Government did not intend to take any action on the basis of Mudgal judgment alone.
Observations in John Vallamattom v. Union of India
Thereafter in John Vallamattom v. Union of India[4] a three-Judge Bench regretted that Article 44 was not given effect to and observed:
Article 25 guarantees religious freedom, Article 44 divests religion from social relations and personal law; marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined in Articles 25 and 26. It is a matter of regret that Article 44 has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.
Uniform Civil Code and Juvenile Justice Law
Much later, in Shabnam Hashmi v. Union of India[5] a three-Judge Bench while holding that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act, 2000 observed that personal laws cannot dictate the operation of provisions of an enabling statute like the Juvenile Justice Act.
It is a secular law and a small step in reaching the goal of uniform civil code under Article 44 of the Constitution.
Maintenance and Guardianship: Later Supreme Court Views
| Case | Year | Key Observation |
|---|---|---|
| Shamina Farooqui v. Shahid Khan[6] | 2015 | Section 125 CrPC and the right to maintenance applies to all irrespective of personal law. |
| ABC v. State (NCT of Delhi)[7] | 2015 | An unwed mother can apply for her child’s guardianship without notice to the putative father. |
Even more recently in July 2015 in ABC v. State (NCT of Delhi)[7] while ruling that an unwed mother can apply for her child’s guardianship without notice to the putative father, the Court remarked:
“It would be apposite for us to underscore that our directive principles envision the existence of a Uniform Civil Code, but this remains an unaddressed constitutional expectation.”
UCC In India
It Is Popular Belief That The Muslims Alone Have A Personal Law And That This Personal Law Is The Stumbling Block In Implementing The Directive Of Article 44 Of Indian Constitution. Muslims Are Liable That Due To Their Personal Law The Directive Of Article 44 Is Not Being Realized As Do Not Want To Forgo Their Personal Law In Favor Of A Uniform Civil Code. This Is A Fallacious Notion: There Are Varieties Of Personal Laws Which Are Applicable To Different Communities Both Muslims And Non-Muslims In India.
Varieties Of Personal Laws In India
They Are As Follows:
- Hindu Personal Laws Largely Codified But Partly The Codified (Also Applicable Mutatis Mutandis, To Buddhists, Jains And Sikhs
- Customary Law Of Hindus, Buddhists, Jains And Sikhs Whenever Protected By Legislation Or Case Law;
- Tribal Law Of Hindus And Others;
- Christian Personal Law – Reformed And Codified;
- Parsi Personal Law – Reformed And Codified;
- Jewish Personal Law – Wholly Unreformed And Uncodified And;
- Muslim Personal Law – Partly Reformed And Uncodified.[8]
Question Of One Unified Code
Another Issue Which Has Been Forcefully Advocated By Justice Kuldeep Singh In Sarla Mudgal V. Union Of India Was “Have The Hindus, Buddhists, Jains And Sikhs (Constituting More Than The 80% Of The Citizen In India) Been Brought Under “One Unified Code”.
The Answer To This Question Is Not In Affirmation. The Fact Is That The Hindus, Buddhists, Jains And Sikhs Are Yet To Be Governed By A Uniform Law.
Limitations Of Hindu Law Enactments (1955–1956)
The Four Hindu Law Enactments Of 1955–1956 Do Not Cover The Entire Ambit Of Hindus Personal Law. Certain Important Aspects Of Hindu Law Are Still Qualified I.e., The Law Relating To Co-Parcenary, Joint Family And Partition Of Property. In These Matters The Classical Hindu Law Is Still Functional.
Hindu Law, Generally Speaking, Has Two School Mitakshara And Dayabhaga. Even Today Thousands Of Cases Relating To Properties Are Being Decided By The Court In Accordance With Principle Of The Above-Mentioned Schools I.e Mitakshara And Dayabhaga.
Regional Variations In Hindu Law
The Four Hindu Law Enactment Of 1955–1956 Have Uniform Application Throughout The Territory Of India. But, In Goa, Daman Diu, There Still Is In Force Old Hindus Usages Decrees Of 19th Century. In Pondicherry Most Of Hindus Have Opted To Be Governed By The French Civil Code.
Similarly, Jammu And Kashmir Has Its Own Hindu Law Enactment; State Of U.P. And Tamil Nadu Have Amendments To Hindu Code. Andhra Pradesh And Kerala Have Enacted Special Hindu Law Statutes Supplementing The Central Laws.
Customary And Tribal Laws
In South Indian States – Andhra Pradesh, Karnataka, Kerala And Tamil Nadu, A Substantive Number Of Families Are Governed Not By The Hindu Code, But By A Variety Of Customary Laws.
Local Custom And Usage Prevailing In North – Eastern States Nagaland, Mizoram, Meghalaya, Arunachal Pradesh And Sikkim Are Fully Protected Under Article 371A Of The Indian Constitution Or By Virtue Of Legislative Provision And Judicial Decisions.
Various Tribes Are Free To Follow Their Own Customs Which Differ From Tribe To Tribe And Place To Place Under Section 2–3 Of The Four Hindu Enactments. The Entire Tribal Population Following The Hindu, Buddhist, Jain And Sikh Religion Is Fully Exempt From The Four Hindu Law Enactments.
Matters Where Customs And Usages Are Permitted
The Hindu Law Enactment Allows All The Hindus, Buddhists, Jains And Sikhs To Follow Their Respective Customs And Usages In The Following Matters:
- Prohibited Degrees In Marriage And Sapinda Relations (Hindu Marriage Act, 1955, Sec. 5);
- Marriages – Rites And Ceremonies (Sec. 7);
- Right To Obtain Divorce Without Proper Judicial Proceedings;
- Adoption Of Adult And Married Persons (Hindu Adoption And Maintenance Act, 1956, Sec. 10)
- Mitakshara Coparcenary Property (Hindu Succession Act, 1956, Sec. 6);
- Joint Family Properties Governed By Marumakkattayam, Nambudri And Abyasandantana Custom;
- Properties Held By Sthanamandans, And
- Specified Impartible Estates.
Wide Scope Of Customs And Usages
All The Four Hindu Law Enactment Of 1955–1956 Clarify That “Customs And Usages” For This Purpose Include Those Prevalent, “In Any Load Area Tribe Community, Group Or Family.’ The Scope For Customary Practices Is, Thus, Extremely Wide.
These May And Often Do, Differ – Among The Hindus, Buddhists, Jains, Sikhs From Area To Area, Tribe To Tribe, Community To Community, Group To Group And Family To Family.
The Four Hindu Enactments Of 1955–1956 Surely Do Not Bring “More Than 80% Of Citizens” Following The Hindus, Buddhists, Jains Or Sikhs Religions Under The Banner Of One Uniform Law.
Minority Apprehensions Regarding Uniform Civil Code
The Protagonist Of Uniform Civil Code Project The Issue In Such A Manner That The Minorities, Especially The Muslim, Feel That It Is They Who Will Have To Sacrifice Their Personal Law For The Sake Of Uniform Civil Code.
This Apprehension Is Due To The Manner Of Campaign In Which It Is Alleged That The Only Defect Lies In The Personal Laws Of Muslims. The Other Religious Groups Including The Hindus Have Discriminating Laws And Laws Which Are Unequal.
So The Campaign For A Uniform Civil Code Should Be Carried On In Such A Way That The Minorities Should Not Become Apprehensive. They Are Apprehensive That If A Uniform Civil Code Is Ever Enacted That Would Mean The Total Abrogation Of Their Religion Based Personal Laws And The Imposition Of The Hindus Laws.
They Do Not Want To Give Up Their Personal Laws For The Sake Of Implementing The Mandate Of Article 44.
Religious Freedom And Personal Law
There Has Been Some Misconception And Apprehension Among Some Sections Of The Populace Regarding A Uniform Civil Code, That It Would Interfere With Their Religion And Infringe Their Religious Freedom. Their Honest Reservations To Such A Measure Are To Be Considered.
In This Context It Is Fruitful To Refer To What Chief Justice M.H. Beg Said, “Questions Of Personal Law, Such As Marriage Or Succession, Are Not Matters Of Religion … It Would Be Against Reason To Urge That “A Urge Of Succession” Which Is Just For A Hindu Or A Sikh Family … Could Be Unjust In Another Family Simply Because They Profess A Different Religion.
Conclusion
Dr. B.R. Ambedkar’s Views In The Constituent Assembly
While in a debate in the Constituent Assembly, Dr. B.R. Ambedkar, while supporting the need to outline a Uniform Civil Code, communicated the expectation that its application may be absolutely intentional. He additionally stated:
“I personally do not understand why religion should be given this vast and expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, we are having this liberty in order to reform our social system, which is full of inequities, discriminations and other things which conflict with our fundamental rights.”[9]
Diversity And The Question Of Legal Uniformity
Broad social and cultural diversity is the reality of India and even cherished and accepted open handedly, but having absolute different laws for people of different religion is not desirable. Since, time immemorial any and every social evil that exist in this society, and excuse of culture and religion have always been used to give a definite clarification. Religion can’t and ought not be permitted to choke out the dignity of citizens.
Need For Implementation Of Uniform Civil Code
- Thus, there is a need for implementation of Uniform Civil Code.
- UCC in India, has consistently been with the idea of devesting laws from the wide range of influences.
- Dissipated laws and lawful standards, customary cultural and social laws and religious addicts, gives a fixed acknowledgement to the rules and facilitates the enforceability of laws.
- The rights and obligations which streams out of such laws and rules also get due recognition and traceability.
Uniform Civil Code: Present Status And Future Outlook
Uniform Civil Code (UCC) is a ray of light and hope with examples of paternity leave, criminalization of Triple Talaq and many more like this to count on. Yet the sun is hidden in clouds of gender biasedness, inequality etc. while Uniform Civil Code (UCC) is still a myth.
But the metamorphosis has just begun with the examples quoted above and Uniform Civil Code (UCC) will be uniform, in the right sense, if implemented and will not remain just a terminology defined under Article 44 of the Indian Constitution. End Notes:
- Sarla Mudgal v. Union of India
- Sarla Mudgal v. Union of India
- Lily Thomas v. Union of India
- John Vallamattom v. Union of India
- Shabnam Hashmi v. Union of India
- Shamina Farooqui v. Shahid Khan
- ABC v. State (NCT of Delhi)
- Article 371-A, added by the Constitution (13th Amendment) Act, 1962
- UCC – Page No. 8
