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Uniform Civil Code; Need Of The Hour In India

The paper aims at highlighting the need of Uniform Civil Code in India. Uniform Civil Code refers to common law for one and all irrespective of the gender, religion or class, implying to the same law for every citizen of India. The objective of the Uniform Civil Code is to bring about equality and stand by the concept of secularism along with a uniform legal system in India.

India being a state following a democratic form of government has no religion of its own and propagates the belief that all the religions are equal for the state, along with making sure that the same is enforced through laws in the nation. The Preamble of the Indian Constitution declares India as a secular state and Part IV, Article 44the Directive Principle of State Policy of the Indian Constitution provides the guidelines to the government for making policies subjected to the Uniform Civil Code.

The implementation of the Uniform Civil Code will strengthen the enforcement of laws on the citizens and prohibits favouritism towards any gender or religion. The need for Uniform Civil Code can be traced to the independence era as put forward by The Father of the Constitution-BR Ambedkar. The plethora of cases like Triple Talaq, Adultery (section 497), Shah Bano Begum and so on have been pointing towards the need of Uniform Civil Code in India.

The Hindu Undivided Families are exempted from paying the taxes whereas the Muslim community are exempted from paying the stamp duty on gift deeds, Uniform Civil Code is not about one particular religion, it is to ensure all the religions can co-exist together with the same set of laws for all. On the other hand, Article 15(3) of the Indian constitution allows the Parliament to make special provisions for the women and children and Article 15(4) permits the parliament to make special provisions for the upliftment of the backward classes (socially and educationally), considering which will remain the same even after implementation of the Uniform Civil Code and shall not become mis-conceptualized. In India, such a progressive reform would bridge the gap between the genders and various religious taboo to a nation which works in uniformity through one legal system.

Delay is preferable to error.-Thomas Jefferson

Bill after bill, debate after debate, delay after delay, is India ready to implement Uniform Civil Code, irrespective of the caste, culture, religion or gender differences in the nation. Uniform Civil Code refers to application of the same law to all the citizens of the nation irrespective of their religion, caste or gender.

At present, India has a Uniform Criminal Law but not with subject to the Civil Law, every religion has their Personal Law with respect to marriage, inheritance, divorce and maintenance which have varied implications from one religion to the another. Uniform Civil Code is mentioned in Article 44 of the Indian Constitution in Part IV as a Directive Principle of State Policy which is barely put into effect or seen as influential on the policies formed by the government, since Directive Principles of State Policy are not enforceable in the court. India is a secular state where a state has no religion and all the religion are given due respect as stated in the Preamble of India, the meaning of secularism is not mentioned in the Indian Constitution which would lead to multiple interpretation from one person to the another.

India is a home to diverse culture and religion; at the same time, it is important to question the laws which are driven by religion and culture which differs from one religion to the another. The changing times have emphasized on the need for Uniform Civil Code in India since the British era up till the date, 73 years of the Indian Constitution.

Research Methodology
The researcher has used secondary data which comprises of books, articles, case comments and the information by eminent jurists along with personal analysis.

Motive Behind The Research
The need for implementation of Uniform Civil Code in India along with spreading awareness on the topic.

Outline Of The Historical Background

  • 1853: Second Law Commission Report
    The report focused on uniformity of the criminal law and not the civil law in India. The British government claimed to stay out of the matters related to the personal laws of the nation as the British government focused on economic exploitation of the nation rather than any form of interference in the religious matters
     
  • 1858: Queen Victoria’s Proclamation
    In the year 1858, the power shifted from the East India Company to the Crown, during the period the Indian subjects were given a word by the queen that there would be no interference in the personal laws of the people of the nation. After the revolt in 1858 (sepoy mutiny) the Britishers realised the importance and the sensitivity of religion in the India, leading to maintaining their focus on the wealth and maximum benefits from the nation rather than showcasing any interference into religious matters.
     
  • Events after the Independence
    BN Rao committee came up after the continuous debates over the various Hindu Laws such as Hindu Widow Marriage Act, 1856, Married Women’s Property Act, 1874, Hindu Inheritance Act, 1928 and so on. The committee suggested for codification of Hindu Law which shall not be male centric in nature and focuses on conferring of equal rights to the men and the women, as a result Hindu Code was passed, which did not necessarily codify the entire Hindu Law but to a huge extent.

    Therefore, this was considered to be the first major step in India towards uniformity in codification of the law. The Uniform Hindu Law was passed with the objective to observe if such a law could be executed and its impact on other religions.

    The need for Uniform Civil Code was highlighted as a result Uniform Civil Code was made a part of the Directive Principles of State Policy under Article 38 of part IV initially and at present it is observed under Article 44 of part IV of the Indian Constitution, which is not enforceable in the court. BR Ambedkar was a great supporter of the Uniform Civil Code along with other women activists and other prominent leaders of the nation.
     
  • Over the years
    The bill has been brought into the parliament several times as a private member’s bill but was dismissed a couple of times.

Need And Benefits Of Uniform Civil Code

Looking at the plethora of instances starting from the discriminatory acts like Sati, Polygamy, Nikah Hallah, child marriages and so on, carried out in the name of religion, shall be relinquished from the society, however, Uniform Civil Code is a set closer in the direction. A woman who is not a Parsi and marries a Parsi man is not subject to the inheritance of the property at the same time her children can be subject to the property.

In Islam and Hindu, there is no legal age for marriage for both male and female but the male and female have been given the right to relinquish the marriage on attaining majority, which could result in child marriage, a greater evil of the society. The practice of polygamy which has been observed in the name of religion along with the practice of conversion to Islam to attain this particular right should not be permissible as it defeats the value system of the nation.

The relevance of Special Marriage Act,1954 is also highly questionable since it leads to introduction of a new law for inter-caste marriage despite Right to Marriage being a Fundamental Right under Article of the Indian Constitution and the act has been failing with regards to implementation since more conversions for the purpose of marriages are observed, for instance, India had a Uniform Civil Code in place such issues would be buried before uprising. The ongoing act of genetical mutilation in Dawoodi Bohra community, is an inhuman practice which cannot be given a back seat in the name of religion and faith.

The Attukal temple in Kerala does not permit the entry of the married male expect once a year during Kartik Poornima whereas women were barred entry in the Sabarimala Temple prior to the recent judgement nor is a woman allowed inside a dargah in the Muslim culture, the right to worship shall not be subject to the gender differences, as stated in Article 25 of the Indian Constitution. In the Khasi tradition, a woman is subject to inheritance of the property whereas a male is not subject to inheritance of the family property.

The act of marriages between the cousins in Islam and the south of India, are major scientific debates stating its implications. The riots against National Registration of Citizens (NRC) were mainly driven by the differences created between the Muslims and other religions which could have been prevented with regard to a Uniform Civil Code, it implies to having the same laws for all irrespective of the religious differences in the society and creating a safe environment for all the religions and genders.

No religion whether it is Quran, Bible or Gita, professes or preaches to discriminate a female from a male and respectively, religion is not a subject of hindrance when it comes to implementation of Uniform Civil Code, it is rather the self-formed beliefs and wrong perceptions of the people. Religion was not made to turn people against one another rather it was to unity one and all irrespective of the differences in the practices and beliefs, it is us the people who have bruised the entire religious system.

The unity among the people in India can be restored in all the aspects by executing Uniform Civil Law, which is seen to have deteriorated in our country, thereafter being one of the major hinderance in the upliftment of the nation, homogenous laws are a way forward in the contemporary world. A nation need not be female centric society but at the same time we do not require a nation to be male centric either, in order to shift from a developing country to a developed country.

The minorities and other similar groups have been perturbed with respect to the special rights granted to them which for a fact will not be affected by implementation of the Uniform Civil Code since Article 15(3) and 15 (4) states the government is allow to make special laws for women and children and respectively for the Schedule Class, Schedule Tribe and other backward classes.

Implementation of Uniform Civil Code will allow the courts to deal with the cases related to religious discrimination or cases of similar nature more adequately and with ease, since the provisions for all the religions will be in uniformity with one another. Uniform Civil Code will establish efficient law and order in the country as ‘One Law for All’ irrespective of the gender, religion and so on, it would put an end to the overlapping of provisions.

The Supreme Court has repeatedly, judgement after judgement asked the Parliament to implement Uniform Civil Code, yet there are no steps taken by the legislature of the country that we the people elect, in the due course of time. Justice from a law is far more beneficial than justice from case to case, the importance of the subject needs to be given the adequate attention it requires, before the imprints on the nation are irreversible.

Plethora of Cases:
  1. Shah Bano Begum vs. Ahmed Mohammad
    The case outlines the differences observed between various religions in terms of maintenance, since under section 125 of Criminal Procedure Code clearly states the ground under which a man cannot deny to maintain a woman after the divorced and a woman who has not remarried, the section applies to the whole nation.

    The court held, the section is not focused on any particular religion. Since, the Mehr was argued in the case it was held the Mehr in Muslim religion is given as a token of respect without specification of the said time by the husband to the wife and in terms of divorce there is no respect left which has as a result led to the divorce accordingly, it cannot be claimed under section 127 of Criminal Procedure Code that the women has been paid the whole sum. The Quran states that one shall provide for a divorced wife, as a man is deemed to do so.[1]
     
  2. Triple Talaq Case
    The case raises a question on the Right to Religion of the women under Article 25 of the Indian Constitution, whether a female is subject to any rights under the article. The practice of Triple Talaq was highly misused since it was observed men divorce their wife by following the practice of triple talaqthrough mere video call or a WhatsApp message, as marriage is a contract in Muslim law done with ‘Mutual Consent’ so shall divorce be subject to the same.

    A female or a male shall have decent respect to on another irrespective of the circumstances. The court declared the practice void under Article 14 (Right to Equality) and Article 25 (Right to religion) of the Indian Constitution and it is against the Fundamental Rights.[2]
     
  3. Adultery- Joseph Shine vs. Union of India
    Adultery is the practice of a married person, a male or a female getting involving in a sexual relation with a third person outside their marriage, it is no longer an offence in India but continues to be one of the grounds to obtain divorce. A woman who commits adultery with a man outside her marriage and the third party (male) who has been aware of the marriage of the female, in that case the husband could file a case against the man and no action would be taken against a women whereas if a man commits adultery, women cannot file a suit against him, which was observed to be discriminative in nature as a result the court passed the order, even the difference in the criminal law of the country have been altered to prevent any sought of discrimination or inequality. Such judgements are a proof that the court strives to be apply same provisions to all irrespective of the religion, caste or gender.[3]
     
  4. Same Sex Relationship (Section 377 of Indian Penal Code)
    The judgement of the case was well celebrated in India as it recognised same sex relationships which was earlier considered unnatural and most of all, the people in relationships of such a nature were illtreated and were to hide their identity from the society. Under, Article 14 of the Indian Constitution everyone shall be have equal rights and shall be equally protected by the law, Article 19 (a) the Indian Constitution provides the right to speech and expression and Article 21 of the Indian Constitution provides under right to life, one must be subject to safe environment. The Court has tried to illuminate any such difference in the society and has declared same sex relationship as natural.[4]
     
  5. Sabarimala Temple Case -Indian Young Lawyers Association vs. State of Kerala
    The case puts light of an ancient practice in the Sabarimala Temple, where women from the age of 10 to 50 years were not permitted to enter the temple of Deity Ayyappa, due to the natural course of the menstrual cycle of the women. The court held, women have equal worshipping rights as men, under Article 25 of the Indian Constitution. The court held it is very discriminatory to ban the enter on women in the temple on such grounds as it also violates Article 14, 15 and 16 of the Indian constitution under CJI Dipak Mishra. The entry of the women in the case was permitted by the Supreme Court of India.
The cases stated above along with the judgements by the court have pointed to the need of Uniform Civil Code in India one after the another, since such cases have become a trend in our country, it is likely to see similar cases in the near future. The legislature must focus on a long-term approach by dealing which the issues corruption the nation.[5]

Challenges With Regard To Implementation Of Uniform Civil Code In India

India is a country of diverse culture where the beliefs of the people are too vehement but with the right communication and education to all the religious groups, the implementation can take place efficiently and effectively. Special Marriage Act which has been enacted is hardly seen into practice since it is a mere option and not requisite, which further shows the importance of Uniform Civil Code.

Thereafter, the culture of spreading inadequate information shall be dealt with regardless as it has become a trend in the country and could result to hindering proper implementation of the requisite laws like Uniform Civil Code. Uniform Civil Code is not a step to make India a Hindu State rather to bring about unity between different religions along with application of same provisions for all, leading to simplification of law and order for better results in the nation.

Fear of the certain section of society who are subjected to the special rights, shall be addressed since such rights will have no impact or interference by enactment of the Uniform Civil Code, which shall be ensured to the society as this is one of their Fundamental Rights as under Article 15 of the Indian Constitution. Right to Religion under Article 25 of the Indian Constitution is not specifically for men but also females of the nation.

The lack of political will to implement Uniform Civil Code is quite evident, it is important for the government to take strong steps rather than fearing the sensitive issues, keeping the prosperity of the nation and its people in mind such step shall be encouraged. Eminent Jurist from all the religion shall form a committee to bring together the Uniform Civil Code so that all the religions are kept in mind while drafting the Uniform Civil Code without any personal biases towards a particular religion. Uniform Civil Code is surely a sensitive issue but with the right information and communication it can bring about an ever lasting change in the nation along with the right growth and development.

Conclusion
On individual level, it is important to understand Uniform Civil Code is with the objective of One Nation, One Law sided by oneness among the people rather than a mere tool to overcome oppression and discrimination against women or a target on a particular religion. The orthodox attitude of the government needs to be replaced by the need for change, as the country shall change and upgrade its laws to keep up with the changing spheres and the needs of the country.

Time and again, debate after debate the process has been slowed down and eschewed by the legislation, despite all the factors pointing towards need of the Uniform civil Code.Each and every religion needs to be taken hand in hand, to prevent the any form of debacles or errors.

In dept analysis and studies are required to ensure the executing of the Uniform Civil Code has a progressive impact on India. The question before us lies whether even after 73 years of the Indian Constitution in place can India continue to outlook the need of Uniform Civil Code. It is radically based on the present circumstances, today or tomorrow we will need Uniform Civil Code, the subject cannot be outcasted for a long period of time, or else India will drown like Nokia without upgradation which is the need of the hour.

End-Notes:
  1. Shah Bano Begum vs. Ahmed Mohammad, AIR 1985 SC 945
  2. Triple Talaq, (2017) 9 SCC 1
  3. Adultery Joseph Shine vs. Union of India, (2018) SCC OnLine SC 1676
  4. Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1

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