The Uniform Civil Code (UCC) is a proposed set of laws aimed at replacing
personal laws based on religious practices with a common set of civil laws for
all citizens of India, regardless of their religion. While the idea of
implementing a Uniform Civil Code has its proponents, there are also arguments
Arguments against the Uniform Civil code
The followings are some of the strong arguments against the Uniform Civil Code,
as its implementation will divide the society further along communal and
sectarian lines instead of integrating it:
Against the Preamble of the Constitution of India: A Preamble is an introductory statement in a document that explains the document's philosophy and objectives. In a constitution, it presents the intention of its framers, the history behind its creation, and the core values and principles of the nation. Uniform Civil Code will violate the element of secularism enshrined in the preamble of the constitution of India thereby damaging the basic structure of the Constitution, as the religious rights of one community will be denied by this code.
Difference of Criminal and Civil Law: Criminal law deals with behaviour that is or can be construed as an offence against the public, society, or the state�even if the immediate victim is an individual. Since the public, society or the state is affected by criminal acts and behaviour, there is no problem in uniformity of criminal law.
However, Civil law deals with disputes between individuals, organizations, or entities. The goal of civil law is to provide compensation or remedies to the injured party. Civil Law deals with behaviour that doesn't affect the whole society, public or state; hence Uniform Civil Code is not required in such cases.
Against Preservation of Cultural Diversity: Another argument against the Uniform Civil Code is the threat it could pose to India's rich cultural diversity. Critics argue that individual personal laws reflect the distinct customs and traditions of different religious communities, and a Uniform Civil Code could undermine this diversity. They contend that the Uniform Civil Code leads to a homogenization of laws, which would not be in keeping with India's multicultural ethos.
- Violation of Religious Freedom: Some argue that a Uniform Civil Code could infringe upon the fundamental right to religious freedom guaranteed by the Indian Constitution. Personal laws, which are often based on religious texts, are seen as an integral part of religious practices, and replacing them with a Uniform Civil Code could be seen as interference in religious matters. This will violate Articles 25 and 29 of the Constitution of India. Do we want to repeal these two Articles, which ensure fundamental rights and are a part of the basic structure of the Constitution of India?
- Existing Secular Laws: Critics also question the need for a Uniform Civil Code, pointing out that there are already secular laws applicable to all citizens, irrespective of religion, in many matters, such as Section 125 of the Criminal Procedure Code, 1973, which provides for maintenance of wife and her children etc.
- Imposition of Code of one community: Some critics argue that the Uniform Civil Code might impose the civil code of one community on all communities. For example, a Uniform Civil Code could include provisions redressal of family disputes on property inheritance, which may be in line with one community's customs, but will legally force other communities to follow the same.
- Lack of Consensus: The drafting and implementation of a Uniform Civil Code would require consensus among various religious communities. However, due to deeply rooted religious beliefs and practices, reaching a consensus might prove to be extremely challenging.
- Social Disruption: Implementing a Uniform Civil Code could potentially disrupt the existing social fabric in many communities, particularly in matters related to marriage, divorce, inheritance, and other familial issues. The transition to a Uniform Civil Code could cause confusion and social unrest.
Political Consideration: The Uniform Civil Code debate is often viewed through a political lens, with some arguing that the issue is exploited for political gains. There are concerns that the Uniform Civil Code debate might polarize communities along religious lines leading to division in the society, with one community favoring its implementation and the other community opposing it.
Lack of Implementation Framework: Critics point out that even if a Uniform Civil Code were to be formulated, there could be challenges in effectively implementing and enforcing it, given the vast diversity and administrative complexities of the country. As for example, have we succeeded in curbing child marriage by formulating laws against it?
Legal and Constitutional Challenges: Constitutional experts point out that any attempt to impose a Uniform Civil Code could face legal challenges as it would require amending or repealing various personal laws protected by Article 25, 26 and 29 of the Indian Constitution, which guarantee the right to practice one's religion.
Potential Backlash: The implementation of a Uniform Civil Code might face resistance from religious leaders and conservative sections of society, leading to protests and unrest, which could disrupt social harmony.
Against National Integration: It is a myth that Uniform Civil Code will enforce national integration, its implementation will work against it instead due to resentment in some sections of the society for disrespect toward their religion and culture. We already have many laws and acts like Unlawful Activities (Prevention) Act, 1967 (UAPA), Section 124A of the IPC, Official Secrets Act, 1923, Prevention of Insults to National Honour Act, 1971, Anti-Hijacking Act, 2016, Armed Forces (Special Powers) Act, 1958 and The Official Languages Act, 1963, for the protection of national integration against the designs of anti-national and terrorist and extremist elements to preserve our national integration. By passing Uniform Civil Code, we will admit that these laws have not worked to preserve our national integration and that our national integration is in danger.
- Diversity in Law: The opponents of Uniform Civil Code argue that even codified civil laws and criminal laws like the Code of Criminal Procedure (CrPC) and the Indian Penal Code (IPC) don't follow 'one nation, one law'. For example, the law of anticipatory bail differs from one state to another. Many states have made local laws to deal with different problems. By framing Uniform Civil Code, we may succeed in bringing about so-called homogeneity in laws, but will ruin cultural diversity of the nation.
- Personal Laws Placed in Concurrent List: Some constitutional law experts argue that perhaps the framers did not intend total uniformity, which is why personal laws were placed in Entry 5 of the Concurrent List, with the power to legislate being given to the Parliament as well as the State Assemblies.
- No Constitutional Mandate: Some protagonists of Uniform Civil Code argue that Article 44 of the Constitution of India, which falls under the Directive Principles of State Policy, clearly states that "The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India." These proponents argue that it is a constitutional mandate to work towards a Uniform Civil Code, thereby ensuring equality before the law. However, they conveniently forget the spirit and mandate of Articles 25, 26 and 29 of the Constitution of India.
- Precedent of Goa's Civil Code: Proponents of the Uniform Civil Code often cite the example of Goa, which has been following the Portuguese Civil Code 1867, which is also called Uniform Civil Code.
- Evolution of Progressive Jurisprudence: Uniform Civil Code
supporters often cite the historic Shah Bano Case of 1985 to argue for a
Uniform Civil Code. In this case, the Supreme Court of India ruled in favour
of Shah Bano, a divorced Muslim woman, granting her right to maintenance
from her ex-husband under Section 125 of the Criminal Procedure Code, 1973.
However, the verdict was highly controversial and led to the enactment of
the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted
the judgement. This case is often used to highlight the need for a Uniform
Civil Code to ensure justice and equality for women across religions.
However, we couldn't appreciate the sentiments for preservation of minority
religion and culture in the enactment of Muslim Women (Protection of Rights
on Divorce) Act, 1986 according to Article 25, 26 and Article 29 of the
Constitution of India.
- Promotion of gender justice and equality: Many supporters of the
Uniform Civil Code point out the alleged discriminatory practices in various
religious personal laws, especially those related to marriage, divorce, and
inheritance. They argue that a Uniform Civil Code can help eradicate such
disparities. For example, the Hindu Succession Act, 1956 was amended in 2005
to give daughters equal inheritance rights with sons, but many argue that
similar reforms have not been adopted universally across all personal laws.
If we find out that how many Muslim daughters are clamouring for equal
inheritance rights with sons and how many of them moved the court for this
right, the result will be dismal. By extending the same logic, can we ask
men to suffer the pangs of giving birth just like women suffer while giving
birth to a baby; this is illogical as God has created men and women
differently. Today we are rooting for gender equality, tomorrow we may as
well clamour for religious equality saying all Indians should follow the
same religion thereby creating chaos in the society.
- Not only one community will be affected: Currently, not only Muslims but also Hindus, Jains, Buddhists, Sikhs, Parsis, Christians and Jews are governed by their own personal laws.
- Has no Relation with Polygamy: Uniform Civil Code will not be
able to contain adultery and polygamy as these two practices, though claimed
otherwise, are very rare in Muslim society. Its implementation will instead
result in more adultery in the society, as people will find it more
difficult to get rid of the first wife in case of mental incompatibility.
It's important to note that the Uniform Civil Code debate in India is complex
and multifaceted, with arguments stemming from cultural, religious, legal, and
political perspectives. The opinions on this issue vary widely, and any decision
regarding the implementation of a Uniform Civil Code would need to carefully
consider these diverse viewpoints.
If some people want to trample upon any
particular point of view, they are free to proceed forward with their idea since
they have got the majority numbers both in the country and inside the
parliament. Afterall minority voice seldom matters, whatever be the logic behind
the voice. However, if any such law is framed and the same law succeeds in
standing up to the judicial scrutiny of the Supreme Court, everybody should
respect and follow it.
Written By: Md. Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected]
, Ph no: 9836576565