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Uniform Civil Code: The Indispensability and the Absurdity

I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.- Dr. B.R. Ambedkar

India is a secular state and nation, which means that it does not follow any particular religion or there is no official religion as such for the country. It means that the state is not dependent on any kind of religious institutions in order to take decisions for the state, it will not interfere with the religious matters and in turn the religion must not interfere with the efficacy of the state. India is a highly diverse country with a plethora of linguistic, cultural and religious identities. This is also reflected in its federal political system, whereby power is shared between the Centre and the states. Religions not only serves as the foundation of the culture of India, but has an enormous effect on Indian politics and society. In India, religion is a way of life. It is an intrinsic part of the entire Indian tradition. A vast majority of Indians, (over 93%) associate themselves with the religion. It is in this manifold context that the concept of the Uniform Civil Code need to be analysed.

As it has been already said that India has a multitude of religions and languages, the people of disparate religions have been governed by their own personal laws since time immemorial. It leads to a different treatment meted out to different classes of people in their personal laws. It can be seen often that the personal laws often face difficulty when there is question of succession, marriage, divorce, inheritance, adoption, maintenance, guardianship etc. The part of the distribution of justice does not remain uniform in its application and faces a lot of difficulty and so to solve this decisive steps were taken towards the national consolidation in form of idea of uniform civil code which was for the first time mooted seriously in the Constituent Assembly in the year 1947.

The Uniform Civil Code as envisaged in the Article 44 of the Constitution includes inter alia, entire gambit of family laws. As far as the uniform legislation is concerned, we have almost covered every aspect of law except matrimonial laws. There is no uniform civil code of law applicable to the marital relation of all, irrespective of ethnic or religious affiliations. So through Article 44, the modern State is called upon to perform its formidable responsibility of giving uniform civil code on the above subject, applicable to all the citizens of the country.

Mr. M.C. Chagla, a former Minister while making a vehement plea for uniform civil code wrote, Article 44 is a mandatory provision binding the government and it is incumbent upon it to give effect to its provision. The constitution was enforced and enacted for the whole country, which means every section and community has to accept its provisions and its directives.2

The Constitution of India in Article 44 enjoins, that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. It has been 69 years, yet we have not been able to attain that level of sophistication to accept and adopt the constitutional mandate, and the basic reason behind this is that even though we talk about peace, harmony and brotherhood, when it comes to the relationship of the Hindu and the Muslim community, we often are traced back to the bloodshed that took place at the time of the independence and our opinions are often based on the hatred and enmity that prevails since a century now.

The UCC should be a perceivable combination of fundamental rights guaranteed to all and religious precept practiced by nearly all. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious or political considerations. Creating awareness becomes paramount in this scenario. In order to be readily acceptable and to prevent social backlash, society needs to be more conscious and susceptible towards other communities, and a common law governing them all in personal matters.

If a Uniform Civil Code is enacted and enforced:

It would help to accelerate national integration;
Overlapping provisions of law could be avoided;
Litigation due to personal law world decrease to a reasonable extent;
Sense of oneness and the national spirit would be roused, and
The country would emerge with new force and power to face any odds finally defeating the communal and the divisionism forces.3

Effects of the Uniform Civil Code on the concept of the Secularism

The Preamble of the Indian Constitution states that India is a Secular, Democratic, Republic. This very clearly implies that the state has no religion. A religion is only concerned with relation of man with God. It means that religion should not be interfering with the everyday life of an individual. The process of secularization is intimately connected with the goal of uniform Civil Code like a cause and an effect. In the case of S.R. Bomai v. Union of India4, as per the Justice Jeevan Reddy, it was held that “ Religion is the matter of individual faith and cannot be mixed with secular activities and can be regulated by the State by enacting a law”.

In India, there exists a concept of positive secularism as distinguished from the doctrine of secularism accepted by the United States and the European States i.e. there is a wall of separation between the religion and the state. In India, positive secularism separates spiritualism with individual faith, the reason is that America and the European States went through the stages of renaissance, reformation and enlightenment and thus they can enact a law stating that State shall not interfere with the religion. On the contrary, India has not undergone any kind of renaissance or reformation and thus the responsibility lies on the state to interfere in the matters of religion so as to remove the impediments in the governance of the state.

The reason why a country like India cannot undergo a renaissance is very clear from the discussion above that there is prevalence of not only different religions in the country but also their own personal legislative laws. So, when the traditions will be in practice, the nature of the conflict will transform itself from general differences to hardcore animosity. People find it difficult to accept or adapt to certain changes and when it comes to a society like India where religion defines the way of life, people connect themselves with their religion instead of understanding that it “is the religion which is made by human beings and that human beings are not made by the religion”. There needs to be a uniform law which governs and regulate the behavior of people of all the religions and not any particular section of the society.

The Preamble of the Indian Constitution resolves to constitute a "Secular" Democratic Republic. This means that there is no state religion or in other words the state does not operate on any one particular religion and shall not discriminate on the ground of religion. Article 25 and 26 of the Constitution of India as enforceable fundamental rights guarantee freedom of religion and freedom to manage religious affairs. At the same time Article 44 which is not enforceable in a court of Law states that the state shall endeavour to secure a uniform civil code in India. Uniform civil Code is the uniform method or the uniform law that governs the people as a uniform law and does not discriminate on the basis of any religion or faith. As a new principle evolves and comes into the knowledge of the people several questions arise and criticisms pave their way.

Since, the personal laws of each religion contain separate provisions, their unification will bring not only resentment, but also enmity in the public towards one another, therefore the Uniform Civil Code will need to bring in such laws that strike a balance between the protection of the fundamental rights and the religious principles of the different communities that exist in the country.

UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Marriage, succession and like matters are secular by nature and, therefore laws can regulate them. No religion permits pre-mediated distortion. The UCC will not and shall not result in interference of one's religious beliefs relating, mainly to maintenance, succession and inheritance. This means that under the UCC a Hindu will not be compelled to perform a nikah or a Muslim will not be forced to carry out saptapadi.

The whole debate can be summed up by the judgment given by Justice R.M. Sahai in Mohd. Ahmad Khan v. Shah Bano Begum 5 which said that:-

"Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social construct. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedom are not autonomy but oppression. Therefore, a unified code is imperative, both for protection of the oppressed and for promotion of national unity and solidarity”.

Judicial Developments on Uniform Civil Code

The judiciary has always tried to narrow the gap between the general provision of law and the personal law. It is crystal clear from Bhagwan Dutt v. Smt. Kamala Dev6, wherein the apex court ignored the personal law and stressed that provisions under Criminal Procedure Code must be made applicable to all irrespective of their religious beliefs.

The Supreme Court of India has always been an ardent supporter of the UCC. It was the legendary case of Mohd. Ahmed Khan v. Shah Bano7, that once again brought the issue of UCC on the preface. In this much celebrated case the Supreme Court brought a divorced Muslim woman within the cover of section 125 of the Code of Criminal Procedure, 1973 and declared that she was entitled for maintenance even after the completion of her iddat period. Although Supreme Court had assumed the role of a social reformer in many other previous cases8 Shah Bano case usurped a landmark position in the history of debates on religion, secularism and the rights of women.

V. R, Krishna Iyer J. who is known to have given a scintillating judgment in Bai Tahira v.Ali Hussain Fissalli Chowthia 9 also has an Ambedkarian view point on common civil code. Instead of being a majoritarian undertaking, the common code is supposed to be a collection of the best from every system of personal laws. He states:

Speaking for myself, there are several excellent provisions of the Muslim law understood in its pristine and progressive intendment which may adorn India's common civil code. There is more in Mohammed than in Manu, if interpreted in its humanist liberalism and away from the desert context, which helps women and orphans, modernises marriage and morals, widens divorce and inheritance. 10

Iyer J insists that cultural autonomy is not an absolute anathema to national unity. However, religious practices cannot be justified and upheld by sacrificing the human rights and human dignity. Religion cannot and should not be allowed to suffocate dignity and freedoms of the citizens. 11

In the case of State of Bombay v. Narasu Appa Mali12 the legislative provisions modifying the old Hindu law were challenged on the ground of being violative of Articles 14, 15 and 25 of the Constitution, the Bombay High Court held that the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 was intra vires to the Constitution, as it violated Article 25 and permitted classification on religion grounds only, forbidden by Articles 14 and 15.

C.J. Chagla considered that: “Article 14 does not lay down any legislation that the state may embark upon must necessarily be of and all embracing character. The State may rightly decide to bring about social reform by stages, and the stages may be territorial or they may be community wise, and that the discrimination may be by the Act between the Hindus and the Muslims does not offend the equality provisions of the Constitution.”

The High Court of Madras also in Srinivasa Aiyar v. Saraswati Ammal13 upheld the validity of Madras Prohibition of Bigamy Act on similar grounds. The trend which we have to notice is that the courts took a roundabout way to justify such discriminatory laws through extra- religious methods. Otherwise such discriminatory yet laudable attempts by the legislature to bring social change would have been rendered unconstitutional on the touchstone of article 15. Hence justifications such as personal laws not falling within the purview of article 13 and separate, distinct historical subject positions of religious communities were given. M.C. Chagla J. later on himself conceded, All my sympathies were in favour of this argument, but with a great reluctance I had to come to a conclusion that I could not strike down the law.14

In Makku Rawther’s Children v. Manapara Charayi l15- Justice Krishna Iyer clearly opined that the provisions of personal law must always run in accordance with the provisions of the Constitution. It is the function of judiciary to construe the words of personal laws with the passage of time which is the need of the hour in the light of constitutional mandate. It is high time now to read the personal laws in the light of the philosophy contained in the Article 44. Thus, whenever the constitutionality of any provision(s) of any personal law was challenged on the ground of being violative of fundamental rights, the court exercised self-restraint and left the matter for the wisdom of the legislature, the court practiced poise and left the issue for the insight of the legislatures saying that it involves state approaches, with which the court isn't normally, concerned.

Such examples merely cite the problem of excessive reliance on relativity in the field of personal laws. Sadly, in political debates and public discussions, this has always been projected from the perspective of a man. That since a Hindu man is subjected to such discrimination, all men should give up their privilege of having gender specific superiority. Equality definition is portrayed in this manner and not through the subject position of the woman.

Uniform Civil Code and The Gender Justice

As we have already discussed how the personal laws violate the rights of the women and do not consider them as equal to men and consider them secondary, we wish to convey that the Indian society is trapped in the vicious circle of the patriarchal dogma that they are not even able to see and respect the rights of the women. There is a lot of controversy regarding the gender justice and the uniform civil code in being. There is a lot to consider before opting for a uniform civil code, we need to think whether or whether not to bring in the concept and a common civil law to everyone in the country, when there is so much of diversity and the legal pluralism existing in the country.

Article 44 of the Indian Constitution expects from the State to secure a Uniform Civil Code for all the citizens of India. There is no Uniform Civil Code in India but a Uniform Civil Code exists. There exists a uniformity in the law when it comes to the legal criminal procedures but when it comes to the personal law there is no uniformity and there cannot be any uniformity because of the prevalence of the diversity in the country.

There are different personal laws for different purposes like the marriage, adoption, succession, inheritance, succession and guardianship and all of them differ with each other when it comes to different religious groups in the country.

It is a known fact that in the personal laws of all the communities, gender bias is inbuilt and it is a result of the socio economic conditions under which they are evolved. That is why there is a need to reform the personal laws. When it comes to the personal laws women undergo many difficulties and experiences in their lives like the severe trauma in matters relating to the marriage, divorce and inheritance. Polygamy, desertion and triple talaq are just a few examples to show the possibilities of the harassment against women. Indian women are formally granted equality in political rights through Indian Constitution but due to the different personal laws, women face inequality, deprivation and violence. Within in a family their position is pitiable.

When it comes to the real sense of equality the Supreme Court in certain cases has opined a need for the legislation for a common civil code or a uniform civil code envisaged by article 44 of India's Constitution should be enacted. A critical look at the constitutional debate, legislative enactments and judicial decisions very clearly indicate the lack of seriousness in ensuring justice to women.

Downside of a uniform civil code: Generalization of oppression of women

Where does the woman find her voice in the entire outcry around the protection of her rights and change in her social status and how? Uniformity in civil law has for a long time been advocated in order to secure the rights of the women and social reforms to empower the women suppressed by the blighted ways of religion and culture. The debates around a uniform civil code have always sidetracked the lived experiences of different categories of women from their perspective. Not only people against a UCC but also the proponents of the code failed to address the core issues of the rights of women.

Two statements around which the concept of UCC has been spun are firstly, that it seeks to achieve gender justice and national integrity and secondly, that it seeks to suppress the identity of the minorities and is a grave threat to the cultural diaspora. The two downsides of a common civil code which can be culled out are hence, firstly, the threat to the different diverse identities of the people and the collective identity of the communities, and secondly, the dubious and somewhat failed formula of uniformity sufficient to secure the rights of the women. The former is a more discussed and more stressed upon argument against the UCC while the latter is a much ignored argument lost in the political cacophony.

Need For Uniform Civil Code In India

However, after 66 years of the adoption of our Constitution, UCC remains to be a constitutional dream to be fulfilled. The judiciary has time and again reminded the legislature the need to have a UCC through its various judgments.16 The need for uniform civil code has been felt for more than a century. India as a country has already suffered a lot in the absence of a Uniform Civil Code. The society has been fragmented in the name of religions, sects and sex. Even at present, in India, there are different laws governing rights related to personal matters or laws like marriage, divorce, maintenance, adoption and inheritance for different communities. The laws governing inheritance or divorce among Hindus are thus, very different from those pertaining to Muslims or Christians and so on. In India, most family law is determined by the religion of the parties concerned Hindus, Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have their own laws.

Muslim law is based on the Shariat; in all other communities, laws are codified by an Act of the Indian parliament. The multifarious castes and creeds and their sets of beliefs or practices

The demand for a uniform civil code essentially means unifying all these personal laws to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde. India has set before itself the ideal of a secular society and in that context achievement of a uniform civil code becomes more desirable. Such a code will do away with diversity in matrimonial laws, simplify the Indian legal system and make Indian society more homogeneous. It will de-link law from religion which is a very desirable objective to achieve in a secular and socialist pattern of society. It will create a national identity and will help in containing fissiparous tendencies in the country. The uniform civil code will contain uniform provisions applicable to everyone and based on social justice and gender equality in family matters.

According to the Committee on the Status of Women in India, "The continuance of various personal laws which accept discrimination between men and women violate the fundamental rights and the Preamble to the Constitution which promises to secure to all citizens "equality of status, and is against the spirit of natural integration". The Committee recommended expeditious implementation of the constitutional directive in Article 44 by adopting a Uniform Civil Code.18

Conclusion
One has to identify what is the moving jurisprudence behind UCC that is it national integration with one nation-one people motto or is it the eradication of the gender based injustices engrained in the all personal laws. These two future results of the UCC are quite distinct from each other. It has been observed that the original dialogue around UCC was more inclined towards the idea of national integration, with the cause of gender equality as an ancillary effect. However, today in the contemporary times UCC has come up as a champion of the gender equality. If so, then the dialogues around UCC have woefully missed their mark.

It is not that uniformity in laws is undesirable. Extensive cultural diversity is the truth of India, but absolute heterogeneity in laws is also not desirable. Uniformity very rightly leads to a constricted scope for arbitrariness and equal protection of law to all the subjects irrespective of the diverse backgrounds they come from. The clarion call for UCC in India has always been with the idea of divesting law from all kinds of religious influences. That law, even the personal laws should be stoic without specific religious and cultural hurdles creeping in. Religion and culture since a very long time have been the ultimate explanation to any and every social evil that exists in the society. Sati, therefore was justified because the religious tenets supported it. One could find a number of justifications ranging from pure religious fanaticism to scientific rationalism and sociology. However, in a country where Hindus shared their day to day lives with other religions where women who need not deliberately die with their husbands existed, questions were raised that why Hindu women be subjected to such atrocity? In fact those who raised such questions became the beacon lights for a movement of social reform such as Raja Ram Mohan Roy, Ishwarchandra Vidyasagar and others.

However, the taking example of a uniform criminal law as a benchmark for the goodness of uniformity in personal laws is not correct. Personal laws govern the unique and peculiar realms of family and marriage which are endemic to each and every diverse group of people. Unlike the criminal law, personal laws govern the way of life of the people which can differ from one community to other. And therefore uniformity in personal laws has to be treated much more delicately.

Two questions need to be addressed which are being completely ignored in the present commotion around UCC. Firstly, how can uniformity in personal laws are brought

without disturbing the distinct essence of each and every component of the society and What makes us believe that practices of one community are backward and unjust? If one does not address these questions with gravity and depth, then we would commit the same horrible mistake of the Americans who considered the indigenous population as savages, needed to be liberated from their customs and rescued by the progressive, civilized norms of Christianity.

The second question is that whether uniformity has been able to eradicate gender inequalities which diminish the status of women in our society? This question is interlinked with the previous question. The definitions of inequality may differ from community to community. It is necessary to determine the layers of gender injustices and inequalities that work separately in one society than in the others. The personal law of one society, without a doubt are dotted with many aspects which are contradictory to the sense of gender equality existing in that society. The first step therefore is to eradicate those unjust practices which are endemic to that specific society. Instead of hurriedly creating a uniform definition of injustice and inequality, which is the dominant point of view, it is necessary that all these societies first recognize the definitions of inequality and injustice within their peculiar sphere of life. Otherwise, what is happening is that these societies become defensive against the demands of uniformity and injustices within their communities are rendered invisible.

This positive side of the debate on UCC time and again reminds the people to tend to the disorders in their personal law system and adjust them to the contemporary times, by taking inspirations from another community which might be more progressive in some aspect. It must never be forgotten that all this is a slow process and any undue haste would only result in failure rather than the desired outcome.

References
Articles
# Maya. R, Vohra. R “Empirical research on the need for uniform civil code in India”
# International Journal of Law and Legal Jurisprudence Studies, 2016; 2(7): 245-256
# Tanushree “Uniform civil code in India: An critical analysis” Journal on Contemporary Issues of law, 2016; 2(9): 1-10
# Rajpal. L, Vats M “Uniform Civil Code and Its Legal Dimensions” Journal of Research in Business and Management, 2017; 5(2): 52-57

Books
# M.C. Chagla, Roses in December, 160 (Bhartiya Vidya Bhawan, 2000).
# Diwan, Paras, Family Law: Hindu, Muslim, Christians and Jews, 2nd edn, Allahabad Law
# Agency, Allahabad, 1994
# B.M. Gandhi- “Hindu Law”, 3rd edn. 2008, Eastern Book Company, Lucknow.

Acts
# The Hindu Marriage Act, 1955.
# The code of criminal procedure,1973.

End-Notes
1 Constituent Assembly Debates 781 (Lok Sabha Secretariat, 3rd reprint, 1999, Vol. VII)
2 MC Chagla, Plea for UCC, Weekly Round Table, Mar 25, 1973, page 7
3 Law Commission of India, Fifteenth Report,1960
4 1994 SCC (3) 1
5 1985 AIR 9456 1975 AIR 83
7 Supra note 5.
8 Fazlunbi v. Khader Ali,1980 SCR (3) 1127
9 AIR 1979 SC 362.
10 V. R. Krishna Iyer, The Muslim Women (Protection of Rights on Divorce) Act, 32 (Eastern Book Company, Lucknow, 1987).
11 Ibid.
12 AIR 1952 Bom 84.
13 AIR 1952 Mad 193.
14 M.C. Chagla, Roses in December, 160 (Bhartiya Vidya Bhawan, 2000).
15 AIR 1972 Ker 27
16 Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945, Ms. Jorden Diengdeh v. S.S. Chopra, (1985) 2 SCC
One has to identify what is the moving jurisprudence behind UCC that is it national integration with one nation-one people motto or is it the eradication of the gender based
17 http://www.ijesls.com/Need%20for%20Uniform%20Civil%20Code-%20Milind%20Gaur.pdf.
18 Towards equality: Report of the Committee on the status of Women in India (New Delhi: Government of India, Ministry of Social and Educational Welfare, Department of Social Welfare, 1974)

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