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Implementation Of Uniform Civil Code In India

Diversity in India has multiple ethnicities, multiple religions. In India we can find people from all the cultural backgrounds who follow different practices. This diversity is also reflected in our laws; we have a legal system based on personal laws that are made keeping religion into consideration. The article 25 of the Indian constitutions define India as a secular nation and the values of secularism are enshrined in that article and it states that everyone shall be allowed to follow their religion and no one shall be discriminated on any grounds.

The article 44 of the Directive principle state policy state that it is the duty of the state to secure a Uniform Civil Code for the citizens throughout the country. One country, one rule is another name for it. The main objective behind implementation of a uniform Civil code in India is that it sets a law to govern the personal matters of all the citizens irrespective of religion. Personal laws are different from public laws as they cover marriage, inheritance, adoption, divorce and maintenance and the India practices a model of secularism in which it has made special provisions for people of different religions and the main idea behind Uniform Civil Code is to treat everyone equally irrespective of religion.

Now the problem exists in the fact that there are differences and discrepancies within the personal laws. There is no uniformity. Also, there has been instances where the personal laws denied the rights of women or did not even give them rights. To counter these shortcomings, the Uniform Civil Code can be enacted.

The Uniform Civil Code means a uniform personal law for all citizens of the country. This code will replace the existing religious personal laws in India and have a uniform law that will cater to all the citizens, irrespective of their religion. This has been envisaged by the makers of our Constitution under Article 44. But it has been strongly opposed because it is considered violative of Article 25 of the Constitution since it does not let people enjoy the personal laws.

This research paper is going to focus upon how a Uniform Civil Code is going to ensure equality among all the people on all the grounds and will also deal with the cons of implementation of uniform civil code in India that can it result in a chance of disintegration of the nation because of the demand for personal laws. This paper will also discuss what is the relationship between uniform civil code and secularism and evaluating all the points it is going to analyze if the implementation of uniform civil code in India a good idea

Objective
  1. To find out if implementation of a Uniform Civil Code be beneficial for India
  2. To know about the problems and challenges in implementation of Uniform Civil Code
  3. To find the relationship between universal civil code and secularism
  4. To understand Indian model of secularism and western model of secularism

Hypothesis
A uniform civil code can be implemented in India and it will also be beneficial for the nation and is not violating of the right to profess one's religion.

Research Methodology
A doctrinal method of research has been used in preparing this research paper which includes collection of secondary data from various sources such as books, articles, research papers, online legal databases, bare acts etc. The information collected from these sources form the crux and content of the research project so as to come to a valid conclusion.

Landmark Judgements and cases have been referred in detail to understand how various statues have been used to pronounce judgements in similar cases. Important text books and study materials have also been referred for the same.

Research Question
Will implementation of Uniform Civil Code affect the nation in a positive way or a negative way and if affects the nation in a negative way then will it violate any of their rights?

Literature Review
Uniform civil code a suggestion by D.C Manooja D. C. Manooja's book “Uniform civil code a suggestion” talks about how Uniform civil code will ensure equality among all the people who live within the territory of India, and how it will make sure that everyone will be treated equally if uniform civil code is implemented Hindu Men, monogamy and uniform civil code by Flavia Agnes Flavia Agnes's Book Hindu Men, monogamy and uniform civil code provides an insight on the religious aspects that will be affected by the uniform civil code and focuses on the Hindu religion. Uniform Civil Code : Implication of Supreme Court Intervention by S.P. Pathe The journal article on uniform civil code written by S.P. Pathe talks about Uniform civil code confining his study to India, this article talks about how the supreme court shall intervene in cases where it is necessary and personal laws for specific religions are creating a problem.

The article mentions a few examples of when it has been necessary and also talked about the power of supreme court of India to strike down laws that violate the basic structure of the Indian constitution

A Uniform Civil Code:
towards gender justice The journal article A uniform civil code by Leila Seth talks about the need for a uniform civil code in the society and not just that but also focuses on how the implementation of a uniform civil code is going to promote gender equality, the article talks about how the women from all the sections of the society even the brahmins and emphasize that how they must fight for equality and justice and implementation of a uniform civil code is an important way of doing so

Chapterization
  1. Uniform civil code and the controversies.
  2. Idea of achieving gender justice through uniform civil code
  3. Uniform Civil Code and the Indian Constitution
  4. Uniform Civil Code in Goa
  5. Merits and demerits of having a Uniform Civil Code

List Of Cases:
  1. The State Of Bombay vs Narasu Appa Mali AIR 1952 Bom 84
  2. Lily Thomas, Etc. Etc. vs Union Of India & Ors. 2000 (2) ALD Cri 686
  3. S. R. Bommai v. Union of India 1994 SCC (3)
  4. Sarla Mudgal v. Union of India 1995 AIR 1531
  5. Mohd Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945
  6. Ahmedabad Women Action Group... vs Union Of India AIR 1997, 3 SCC 573

Uniform Civil Code And The Controversies

Before getting into the controversies of the uniform civil code it is necessary to understand what causes these controversies by understanding the meaning of uniform civil code. Uniform Civil code is that part of the law that deals with affairs related to family of an individual and determines uniformity in laws for all citizens, irrespective of his religion, tribe or caste. UCC is inscribed in the article 44 of the Indian constitution that was the article 35 in the draft.

This lies in the part 4 of the Indian constitution and also deals with directive principles of state policy. And since these are non-judicial rights, they cannot be enforced in the courts. Now coming to the controversies caused due to uniform civil code, In India the main cause for communal conflicts among the common people are the personal laws The Uniform Civil Code is a uniform method or a standardized law which governs citizens as a uniform law. One problem with an absence of having UCC throughout India is that it may go against the basic principles of equality that is one of the fundamental rights of the constitution because by providing personal laws to a certain section of people we are determining the credibility of the secular ethos in the country.

Having a uniform civil code shall make separation of the state from the religion from the state meaningful since personal laws shall cease to exist when a uniform civil code is implemented. Personal laws lead to many communal conflicts that cause harm to the country for example the demolition of various temples and mosques and it indicates that India is still not ready for having a uniform civil code and it also goes against the article 25 of the constitution. People who argue against the Uniform Civil Code for things such as marriage, divorce, inheritance and any such ritual are themselves going against the article 26(b) of the Indian constitution that states that:
“Subject to public order, morality and health, every religious domination or any section thereof shall have the rights to manage its own affairs in the matters of religion”.

Since uniform civil code shall be a violation of this article, the judiciary does not take any interest in implementing a uniform civil code because of the provisions enshrined under article 25 and article 26 of the Indian constitution, in fact this issues has already been extensively debated upon in the Supreme court and because of article 25 and 26, it was not quite successful.

Idea Of Achieving Gender Justice Through Uniform Civil Code

As a matter of fact, it is known that personal laws of communities “gender injustice is inbuilt. This is a result of the social and economic conditions under which these have been evolved and this is one of the Important reasons that why there is a need to introduce reforms in personal laws or bring about UCC to not only ensure equality between men and women but also in order to bring about gender justice.

Women go through many difficulties and also a lot of trauma in matters related to divorce, marriage and inheritance. Some of the examples that can be used to understand this are the practices of polygamy, desertion and triple divorces. Indian women are only granted equality in a formal way that too by only providing them with an equality in political rights through the constitution of India. Position of women within their family is pitiable due to the inequal rights.

Women's rights are ignored within the internal matters of the family. If the personal laws are followed blindly then women shall forever remain under the control of men and this is a threat to basic principles of livelihood. A uniform civil code if implemented shall lay the grounds for women to overcome various social evils that exist in the society such as the bigamy system and the dowry system which make women feel inferior and degraded.

Uniform Civil Code And The Indian Constitution

The key problem lies in the fact that, if the constitution makers had intended to implement a uniform civil code in India, they should not have made it part of the State Policy Principles Directive pursuant to Article 44 of the Constitution. The State policy principles set out in Part IV (Art. 36-51) of the Directive, as the name suggests, are merely guidelines to the Government.

They do not need to be strictly pursued and are not enforceable by the Court. These are simply positive obligations for the State that will lead to good governance. The Preamble of the Indian Constitution states that India is secular, democratic, republic.

This means that there is no State religion at all. A secular state shall not discriminate against anybody on the basis of religion. Religion is concerned only with the relationship between humans and God. It means that religion should not intervene with an individual's life. The secularization process is closely linked to the goal of the uniform Civil Code as a cause and effect.

In the case of R.S. Bommai v. Union of India, according to Jeevan Reddy Justice It was stated that religion is a matter of individual faith and it can not be mixed up with secular practices and can be regulated by the government by the enactment of a law Throughout India, there is a principle of positive secularism as distinct from the theory of secularism adopted by United States as well as the European States, i.e. there is a wall of separation between religion and state.

The Preamble to the Constitution of India has decided to create a "Secular" Democratic Republic. This means that there is no official religion or, in other terms, that the state does not act on any specific religion and does not discriminate on the grounds of religion. Article 25 and 26 of the Constitution of India, as enforceable fundamental rights, ensure freedom of religion and freedom to conduct religious affairs. At the very same time, Article 44, which is not legally binding in a court, states that the State shall seek to maintain a uniform civil code in India.

The problem with having personal laws for all the religion is that having personal laws means having special provisions in the constitution for one section of religion and as much as it will bring resentment, it will also bring enmity in public towards each other and hence it is important that uniform civil code brings such laws that creates a balance between protection of religious principles and fundamental rights of various communities residing in the state. Marriage, maintenance, divorce et. Should be matters of secular nature and laws must exist to regulate them

Uniform Civil Code And Goa

In India, Goa is the only state to have a UCC regardless of gender, religion and caste.in Goa there is a common family law so we can say that Goa is the only state in India that has a Uniform civil code. Every person regardless of religion, Hindu, Muslim and Christian have to follow the same rules related to things like succession, divorce and marriage. In 1961. Marriage in Goa is a contract between 2 people belonging to different gender to live together and have a legal family that is registered in the civil registrar's offices.

There are also certain rules to which the people of Goa must abide by dealing with people who are prohibited to get married e.g. any spouse abetting or doing the murder of another spouse cannot perform marriage. However, some people also say that Goa does not exactly has a uniform civil code because it is not very strict due to some provisions like the Hindu men having the right to bigamy as it is mentioned under codes of usages and customs of gentle Hindus of Goa. Goa has a uniform civil code but due to a few provisions like these some people also argue that goa does not has a uniform civil code

Merits And Demerits Of Having A Uniform Civil Code

To find out if implementing a uniform civil code in India is going to be beneficial for the country or not we must first understand the merits and demerits of having a uniform civil code in the country and for that we need to analyse what laws will be affected by implementing a uniform civil code. Implementing a uniform civil code will only affect the personal laws that are based on religion that means the laws dealing with divorce, marriage, adoption, inheritance etc.

Having a uniform civil throughout India will surely promote the principles of justice because many of the personal laws that are allowed are not justified and they result in unequal treatment of people and hence violating the core principles of the Indian constitution as it was seen in Shah Banos case of triple talaq as the law of triple talaq was oppressing the Muslim women and was clearly a violation of their fundamental rights while on the other side having a uniform civil code also promotes the model of secularism that India has adopted that is called as positive secularism which is different from the model of secularism in the western countries so having a Uniform civil code may violate the religious rights of the people too that have been granted to them by the constitution of India by article44 under directive principles of state policy

Conclusion
Having a uniform civil code in a country is not just a matter of justice but it is also a matter of how a country accommodates the diverse population residing within it. In India the freedom to follows your religion also exists just like any other rights such as right to equality and non-discrimination. India has taken a route to accommodate these diverse sections of people by letting them practice their religious traditions by provisions of personal laws that on the other side results in inequality.

But the question is that do we have a better way to negotiate this? One way as explained in the research paper is adopting the western model of secularism in which the nation does not intervene with the religion and no provisions exist for any kind of personal laws but we also must understand that the conditions in India and in most of the Western countries are not similar and hence it cannot be implemented because even though the western countries claim to be secular, show biasness towards Christianity and the countries in the middle east show biasness towards Islam. Implementing a uniform civil code may also risk in pushing people in conditions they may not want to live and this may cause a disturbance among the public.

It is also very clear that a uniform civil code does not violate the article 25 and article 26 on the constitution of India. The uniform civil code should rather be introduced as a new law and not just be introduced as a blend of personal laws because if we blend personal laws then there shall be scope of arbitrariness to arise for example the parliament should bring a new law that is also like the special marriage act of 1954 that will now favors or show any bias towards any religion.

The people need to understand that the concept of laws and the concept of religion is different because the constitution of India allows the people to follow their religion that will also continue eve after the enforcement of uniform civil code as the uniform civil code is not going to take away anyone's rights to practice to profess anyone's religion and it is high time and people in India need to start viewing law and religion as different concepts and having a uniform civil code will focus on equal empowerment of people of all sections and hence it will be beneficial for the country and also will not violate the secular nature of the constitution and hence we can also say that the hypothesis taken is proved to be correct because having a uniform civil code is the urgent need of the hour.

References:
  1. Agnes, Flavia. “The Supreme Court, the Media, and the Uniform Civil Code Debate in India.” The Crisis of Secularism in India, 2006, pp. 294–315.
  2. Dhagamwar, Vasudha, and Indian Law Institute. Towards the Uniform Civil Code. 1989
  3. Parashar, Archana. Women and Family Law Reform in India: Uniform Civil Code and Gender Equality. 1992.
  4. Shetreet, Shimon, and Hiram E. Chodosh. Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse. Oxford University Press, 2015.
  5. Hazarika, Raya. “Should India Have a Uniform Civil Code?” SSRN Electronic Journal, 2010.
  6. Sharma, Sharda Girijesh. Uniform Civil Code and Adoption Laws in India. SSRN

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