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One Nation, One Law? Unpacking the Constitutional Viability of the Uniform Civil Code

The Uniform Civil Code one of the controversial bills presented in the parliament several times but could not be enacted due to the contradictory opinions revolving around it. Secularism and religion are the two main issues that arise in the implementation of the code.

The UCC is enshrined in article 44 of the Indian Constitution as a directive principle, due to which it is not enforceable by the courts for their violation but according to 'Article 37'of the Indian Constitution there is a provision for the application of the principles in part IV of the Constitution. Also with that being said, there were several instances in which Supreme Court has called for the implementation of the Uniform Civil Code.

The Uniform Civil Code and its implementation was not only demanded by the Hindu nationalists but also the modernists long time back. Dr. Ambedkar had emphasised the retention of authority of implementation with the Parliament.

In post colonial era, the Hindu Law Committee found that rigid Hindu laws were only related to a particular tradition as the concepts of inheritance, monogamy and divorce were present in the Hindu shastras. At the same time, the Hindu Bill was highly criticised following which is a mini version of the bill was passed by the Parliament in 1956 in the form of four separate acts � Hindu Marriage Act,Succession Act ,the Succession Act, and the Minority and Guardianship Act among others.

The code once put in motion is aimed to simplify the personal laws such as the Hindu Code Bill and Sharia Laws and laws for the Christians, Parsis and Jews. All citizens after this implementation will be subjected to the same laws irrespective of their religion in relation to matters of inheritance, marriage, adoption and succession.

Goa being an exception has adopted a common civil code which has provisions regarding compulsory registration of marriage and also prenuptial agreements that can bring alteration in the ratio of distribution of assets.

Constitutional and Judicial Perspective on the Issue

The issue in the implementation of the Uniform Civil Code comes due to Article 25 in the Indian Constitution that provides the Right to freedom of religion, a fundamental right that cannot be violated. Under this right, the citizens have the right to profess, practice and propagate the religion of their choice. Further, the State has the right to regulate and restrict any economic, financial or any political or secular activity associated with religious practices.

For instance, Ratilal Panachand Gandhi v. State of Bombay, the Supreme Court stated that Article 25 guarantees every person (not only citizens) the freedom of conscience and right to freely profess, practice and propagate religion. However, the same is subject to certain restrictions by the State in terms of public order, morality and health.

In the landmark case of Shayra Bano vs union of India or the Triple Talaq case have showcased that Muslim women are often vulnerable and are not legally protected. The Court, in a majority opinion, struck down instant Triple Talaq. The UCC when implemented will ensure that the Muslim women are protected and given equal legal rights as that of men in matters of divorce.

It is not just in the case of the religious minority but landmark judgements such as the Sabarimala judgement, the Court formed the majority opinion that the practice of exclusion of women in temples is unconstitutional and invalid. It also held that religious practices cannot be given more importance than the fundamental rights.

In both the sabarimala and the Triple Talaq judgments, the difference lies in the fact that while in the former case, fundamental rights are given preference over the religious practices, in the latter one, the practice was not recognized in the holy quran, the practice was not considered essential to the muslim community. This is, thus, based on the concept of UCC in so far as it talks about gender neutral laws, to the exclusion of religion.

In yet another case of Mr.Jordan Diengdeh vs S.S. Chopra, the Supreme Court observed that the laws related to marriage and separation are not uniform and the Supreme Court stated that it was important and requires that uniform laws related to marriage and mutual consent for divorce be made.

In the case of Daniel Latifi vs. Union of India, where it was held that a Muslim husband is liable to provide maintenance to his wife after divorce even after the expiry of the iddat period and can get maintenanace till she remarries. It was also held that same priveleges can be enjoyed by the Muslim women as that by the Hindu and Christian women as per the provision of section 125 of the Criminal Procedure Code ,1973 related to maintenance.

It was clearly stated by B.R. Ambedkar that the aim is not to give absolute rights in matters of religion which means that the courts have the power to check the constitutionality of religious practices.

In Sarla Mudgal vs Union of India and also held that the uniform civil code will help in the national integration of the country. The articles 25 and 26 of the Indian constitution consists of the fundamental rights related to religion whereas the uniform civil code is a directive principle that is unenforceable. The uniform civil code cannot come into conflict with the right to religion, the only aim of the uniform civil code is to implement uniform laws pertaining to marriage, adoption, succession, inheritance.

Analysis of the Issues and the Possible Solutions

The foremost issue in the implementation of the code is the fear of the religious minority regarding their preservation of personal laws and being under the control of a majority religion's laws. The second issue is regarding the misconception that the code would violate the fundamental rights of the citizens. The third issue is also regarding the unawareness of the objectives of the code to the citizens because of which it is highly controversial.

The fear of the minority communities in losing their control over their personal laws and claiming that their fundamental right would be violated is irrelevant as the uniform civil code is pertaining to matters of marriage, succession, inheritance, divorce and adoption of every religious community. A well drafted UCC that would respect and treat all religions equally will help in attaining the real objective behind its implementation.

The aim of the code is not to violate the fundamental rights of any religious minority but rather to promote gender justice in the religious communities and the protection of the vulnerable groups within the communities. The UCC would provide gender justice among Hindus as it will provide equal rights in matters of property inheritance. It is to be understood that the nature of changes that would come after the uniform civil code is not harmful to the religious communities, rather it will provide uniformity, protection and integration of the communities.

After the UCC comes into implementation, the Hindu Succession Act and the Hindu Marriage Act would have to be amended. In the Islamic laws ,the Muslim Personal Application Act 1937 states that the Islamic law will guide the marriage, adoption and divorce and if the UCC comes into play the age of marriage would have to be changed and polygamy would be abolished. Similarly the Sikhs have no provisions for divorce and the marriages are covered by the anand marriage act and it is guided by the Hindu marriage act and after the UCC a common law will apply to the marriages.

In parsis, they do not recognize the rights of adoptive daughter and the sons only get to perform the last rites of the father. After the UCC their will be uniformity in guardianship and custody laws for all the religions. In christianity, there will be impact on the succession,adoption and marriage laws. Therefore the solution is that the citizens and those against the implementation of the code be made aware of the changes that would come after its implementation. So that there are no ambiguities and insecurities among the religious minorities regarding the uniform civil code.

Present Scenario Regarding the Uniform Civil Code
The Government has made the implementation of UCC a core issue in the political agenda of the party. The law commission of India has recently issued a public notice to support opinions on the uniform civil code. In the 2018 consultation paper issued by the law commission it was suggested that all matters related to personal laws must be codified to the maximum extent possible and the inequalities should be remedied by the amendments thereafter. The implementation of the UCC has both pros and cons. The UCC is perceived as an encroachment on the religious freedom of the citizens.

It is a sensitive and tough task to implement the Code. The manner of introduction of the Code is also a determining factor that how it is percieved by the citizens from various diversity. The basic notion of the citizens is that it will be an interference of state in the personal matters. However there is also the absence of political will in its implementation because of its controversial nature and the counteractions by the religious groups. In my opinion the implementation of the Uniform Civil Code will bring Gender Equal Laws. It will provide equal staus to all the citizens . A careful drafting keeping in consideration of the sentiments and beliefs of all religions will help in the smooth implementation and acceptance of the Code.

The implementation of the uniform civil code is an important issue which needs the cooperation of every political group and every citizen. The basic human rights, national interest and the dignity of the people are supreme . The implementation of the UCC will not affect the diversity. It is important that the personal laws are changed in accordance with the constitution. The UCC will help in changing the years old practices and give equal status and rights that would help promote gender justice by replacing the misogynistic and unequal personal laws.

People need to have a open mind to understand and accept the Code. This would require the efforts to draft a Code that would view all the religions equally and accommodate the best of their interests. The Code will be a way to help the integration of the country so diverse as India. For a consensual decision it is important that the stakeholders in the decision making are well aware and confident about the objectives and the changes brought in after the uniform civil code.

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