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Implications Of UCC: Understanding Its Constitutionality And Effect On Personal Laws

The article aims at understanding the potential implication of the Uniform Civil Code on the existing family laws. Since, there is no one law that atop the family matters in India, and the laws are different and divided based on the religious grounds, then what if one law is made that changes this whole division and bring out the procedures and the substantive definitions, that are same for the people of all the religions, as the Indian Constitution has itself upheld achievement of principles such as socialism, secularism, and equality as its ultimate motive. So, through this article, there will be an attempt to understand as how an uniform code can help in achievement of such goals while also highlighting the challenges to the implementation of the Uniform Civil Code.

What is UCC?

The Uniform Civil Code or commonly known as UCC is one of the directive principles of state policy, mentioned under Article 44 of the Indian Constitution, which advises the government to secure a uniform civil code for all citizens throughout the territory of India. Since, it is part of the DPSP, it is not binding on the state and thus, non-enforceable.

However, it is one of the contentious promises persuaded by the current ruling party of India, BJP, which aims that levelling all the personal laws in India, which include Divorce, Marriage, Inheritance, Adoption, and Maintenance Laws (E.Chondosh & Shimon, 2014).

This approach of the leading party has been criticised by many, mainly on one ground that with the introduction of an uniform law, the personal laws of the various religious communities will come to an end and the argument is since, the people of these communities have been administered by separate laws for a very long time, and suddenly, they cannot be put under the same roof, under the same law as it would undermine the religious differentiation as various religions are administered by their own religious personal laws, interfering with which would amount to an violation of Article 25, which upholds religious freedom.

It is a fair argument as Fundamental rights are held to be superior to DPSPs (in the case of State of Madras v. Champakam Dorairajan, and are also enforceable, with article 25 being one of the Fundamental rights. However, as much as Article 25 is part of the Indian Constitution, so are the principles of Socialism, Secularism and Equality, which are all the basic features mentioned in the Preamble of the Constitution, which highlights the objective of the Indian Constitution. Now, that a background has been set, the further discussion will be carried out in this regard.

UCC and Personal Laws: The Debate:

The personal laws, as the name suggests are the laws that applies to a certain group or class of people or a particular person, based on religion, faith and culture. In India, every person belongs to a particular religion, caste, and comes from a different culture, and because of such diversity, they also happen to have different set of laws, that are based on the differentiation in custom that is followed by these people, and these laws are personal laws, for example, in India there is Hindu laws, such as Hindu Marriage Act, that applies to the people, who are either Hindu, Buddhist, Sikh, or Jain, similarly, there is personal law for Muslims, called Muslim Personal Law (Shariat) Application Act, 1937, and so on (Principle Sources of Indian Law - Personal Law , n.d.).

These laws are not only distinct in their name and application but the substantive and procedural aspects of these laws are also very different, for instance, marriage, in Hindu law, it is considered to sacramental (Hindu Law, 2023) but the same is not true for Muslim law, where it is a contract. (Did you know: Muslim marriage is a contract., 2022), these not only highlight the differentiation of the practise of marriage but also, how the subjects of these laws will perceive marriage.

So, a differentiation exists not only in the definitions and procedures but also the orientation of people. The Uniform Civil code on the other hand, wants to achieve and maintain uniformity amongst the personal laws, meaning the cultural and religious differentiation will come to an end, and all the people will be subjected to the same laws for all of their personal matters.

Now, again if we take the example of marriage, then with the introduction of UCC, it could be either be made sacramental or a contract, that is up to the government, but one thing is clear, there will be a section of people who will have to part ways with their customary practises with the introduction of UCC, meaning that these people who have been following a custom for a very long time, will now be subjected to a new practise, which is obvious, people wouldn't be happy with, this is why many people are against the idea of UCC, as they don't want their personal laws to be done away with. But, what they are not looking at is that there were always customs and practises, but are those customs and practises as prescribed under the personal laws, justified for today's society? For the most part, no, because for example, there are lot of laws that still allow child marriage, for instance.

The Muslim laws that hold marriage as a contract allow for child marriage even if the party is minor, if the guardian gives consent for it, so if a general law is made that caters to such problems, then it shouldn't be a seen as an obstacle to personal laws, rather it should be seen as a compliment to it as it is bringing a change that is befitting the modern societal and legal conditions.

This could be better understood with another example, Manu Smriti, the historical source for the Hindu law, covered many criminal offences and provided punishment for it, and cheating was one of the offenses in it and the punishment for this offense extended to corporal punishment including mutilation and death (Beni, 2021).[3] Even if these were the condition and there was already a criminal law for Hindu, which must have become custom, for at least some people who were subject to it, but it was wrong as there cannot be a death sentence for a crime like cheating, because of which a more just and equitable statute was made, i.e., IPC.

Now, as we have personal laws now, there must be a time, when the subject of these laws also, had their own criminal laws, but with the introduction of IPC, which was a general law, all such laws came to an end because a law which was more reasonable and equitable was made for it. Surely, whenever the change was made, people would've retaliated it as again, a law was made that was doing away from their personal laws, but the change was accepted, not immediately and gradually, and today, all the people, irrespective of their caste, religion and orientation are subject to IPC, in case of any crime they commit.

Constitutionality of UCC:

Many people have argued that the UCC is unconstitutional, because the state cannot make laws, transgressing the religious boundaries, which is violative of Article 25, which allows that all the people have freedom to practise, profess and propagate their religion. Also, another argument that has been made is that tribal people, who are subjected to their own laws, and were even excluded by the Constituent Assembly from the common law.

On the ground that they have distinct community structure, and there are tribes such as Naga tribes of Nagaland, which are protected by virtue of Article 371 A and have separate civil and criminal laws, and are arguing that with the implementation of UCC, their customs will be effected and are also many tribals are demanding their own separate identities and code, the 'Sarna Dharma Code' and are against the idea of being administered by the same laws as that of people of other religion, they don't want to do away with their separate identity and if forced to do so, by implementation of UCC, it will amount to infringement of their fundamental rights.

The answer to that lies within the constitution itself; as much as the fundamental rights are important but so are the objectives of the Indian Constitution, which are all highlighted in the Preamble itself and include the principles of Secularism, Equality and Socialism. In the case of Kesavananda Bharti v UOI, the preamble was held to be the part of Indian Constitution which highlight the objectives that Indian Constitution seeks to achieve.

If secularism and socialism is what the constitution makers wanted to achieve, then why shouldn't there be a law, that is secular in its very objective, implicit from the fact that when all the religious communities will be subjected to same law, then there wouldn't be any agony in the minds of people if the people of one community marry another, say a Hindu is to marry a Muslim, for which in today's time, people take help of special marriage act but still in most of the cases, such a marriage is not accepted by other people of the communities, including the family of the parties. So, if a law is made that aims at achieving a more secular structure, where people of different communities can exist together, what is the problem?

Not to mention, it is socialist, as when all the communities will be subject to same law, the invalid practises of these communities such as child marriage which is undertaken in the name of religion and custom, wouldn't be appreciated, also if we talk about adoption, then only one law for it exists in India, that too for Hindus, so if one law is made that brings all the communities on the same pedestal so that all the communities can get benefit of, what is wrong with that?

Coming to equality, with the imposition of UCC, all the communities, whether religious, ethical or even the tribes, will be subjected to same law, there will be no differentiation between them on the lines of marriage, divorce, adoption, inheritance, or maintenance, and they will be all be subjected to a more justified and legal framework, this will result in a more equal society as if we take the example of Muslim Women, prior to the case of Shayara Bano v. UOI, they were subjected to triple talaq, and were in no way equal to a Hindu Woman, who cannot be divorced without her consent or without the decree of court, stating the reasons for her divorce, so if a law is made that caters to such issue, what is wrong with it?

People can argue that such a problem can be tackled by the judiciary, so there is no need for law, like was done in the case of Shayara Bano, but the answer is simple, judiciary's process of delivering a judgement is very time taking, and there is no one practise that can be challenged but many, for instance, adoption, there is only one adoption that too for Hindus, and some communities don't even allow adoption from orphanage and allow, only from the people of that community as a matter of practise, this again shows how unequal society is, so if one law is made that can bring a more equal society, what is wrong with it?

Coming to question of article 25, there has been no judgement that has provided a clear definition of the term, 'profess', 'practise' and 'propagate' of religion. As far as, literal meaning of these terms are concerned, it only means, a person can choose to follow whatever religion he wishes and perform its ceremonies and rituals, and can also decimate the learning to others but can't force them to convert.

The only discussion arises with regard to following personal laws as a practise of the religion, but again if such practise is unconstitutional, it would be done away with, and there should be a demarcation between essential religious practises and other practises, also if a common law is made with regard to marriage, divorce, inheritance, maintenance and adoption, it shouldn't be seen as violative of essential religious practise, as none of them are essential religion practise, all the people across all religion perform them, the only difference lies with regard to the procedure of performing them, which is something that becomes a challenge to the UCC, for which, as of now, there is no answer how all the different procedures of different religions can be brought under the same umbrella. But, the inclusion of UCC in the constitution highlights that the constitution framers must have had discussion about and had come to the conclusion of including it, and it is something that can only be answered by Supreme Court, whether it is constitutional or unconstitutional.

Overall, UCC is an effective mechanism with an noble goal of achieving a just and equal society, however, following challenges needs to be kept in mind and effectively tackled for proper implementation of Uniform Civil Code (UCC):
  1. As mentioned before, one of the major challenges is the difference in procedure and ceremonies of people of different communities in undertaking all the practises mentioned under the UCC. For example, Hindus have ceremony of saptapadi, which is that the marriage is solemnized at the seventh step around the fire, taken by the couples whereas for Muslims and Christians, it is that both the parties present must consent to the marriage. How, will UCC tackle to these difference in practises is a major challenge.
  2. Another thing is cultural differences and variations, people of one community have their own cultural likes and dislikes, how would UCC tackle this is also a challenge, for example, there are tribal communities, such as Todas that perform Polyandry, meaning the wife having more than one husband, which is not something that is allowed in various communities across India.
  3. People in India are very religious sensitive and so, if a law is made that target the religious sentiments of the people, they would of course retaliate, which again is a challenge for the implementation of UCC.

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