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Uniform Civil Code: The Much Debated Legislation

India as a country distinguishes itself from other countries owing to the myriad of religions that co-exist in it. India's multi-religious nature stems from its history, which has seen rulers of various religions and domains come to rule the country, from the Mughals to the British.

Multiple laws have been developed throughout the years to manage the personal affairs of individuals of various religions, and they have served their purpose, but with the passage of time, the necessity for a Uniform Civil Code ("UCC") has become apparent.

This piece aims to look at the background of the concept of a UCC and the various instances in the present times where the need for a UCC has been felt. The piece also aims to highlight some of the hurdles which are present in the way of imposition of a UCC in India.

The framers of the Constitution envisioned a consistent set of family regulations that would apply to all citizens. However, the notion was shelved, and it was left to future generations to explore and enact concrete legislation. Thus, India still runs on the idea of legal pluralism which grants all religions the equal right to be governed by their own personal laws, some of them being codified like the Hindu personal laws and some not like the Muslim laws, as discussed in subsequent paragraphs, in matters relating to marriage and divorce to name a few.

A UCC refers to a single legislation which would govern all personal matters such as divorce, marriage, adoption, inheritance and custody of all individuals irrespective of their religion and are. It aims to eradicate the fragmented laws which currently govern interpersonal relationships.

The idea of UCC has been derived from Article 44 of the Constitution, which forms a directive principle of state policy according to which:
The State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India.

This means that while the concept of a UCC has been enshrined in the Constitution as a goal toward which tangible steps should be undertaken, it is neither a fundamental right nor a provision that the Constitution guarantees.

The various laws that are present, dealing with personal matters largely focus on marriage, divorce, custody, guardianship, etc and are different from public laws. The most prominent example of such laws is the Hindu personal law which is codified in four bills. They are the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. The term 'Hindu' also includes Sikhs, Jains and Buddhists for the purpose of these laws.

"...The reference Hindus shall be construed as including a reference to persons professing Sikh, Jain or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly."

Muslim personal law is not codified per se, and is based on muslim religious texts, however certain aspects of the texts are recognised in India expressly under certain specialised legislations like the Shariat Application Act and Dissolution of Muslim Marriages Act.The Indian Christian Marriages Act and the Indian Divorce Act administer Christian marriages and divorces, whereas the Parsi Marriage and Divorce Act governs Zoroastrians.

At the same time, there are laws that are more "secular" in nature, ignoring religion entirely, such as the Special Marriage Act, which permits interfaith marriages, and the Guardians and Wards Act, which specifies the rights and responsibilities of guardians. Furthermore, to protect distinct regional identities, the Constitution makes certain exceptions for the states of Assam, Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law.

Goa at present, is the only state in India with a UCC.The Portuguese Civil Code of 1867, which continues to be implemented after India annexed the territory in 1961, applies to all Goans, irrespective of their religious or ethnic community. However, the Portuguese Civil Code, 1867 is not a completely uniform one. It makes certain provisions on religious basis. The most notable example is Hindu men being allowed to practice bigamy if the wife fails to deliver a child by the age of 25, or a male child by the age of 30.

UCC in the present times:

The issue of uniform civil code has continued to gain traction over the years with embedded seeds of unending quarrels, continuing storms and dialectics of history. The voices in support of this particular legislation have only grown firmer with the Supreme Court ("SC") outlawing Triple Talaq. Over the years, the courts have remarked on the topic, with some previous rulings serving as a beacon.

The demand for UCC came on the forefront in the landmark case of Shah Bano v. Union of India in 1985. Shah Bano moved to SC seeking maintenance after her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance.

The SC bench, in a verdict in favor of Bano, observed:
"There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies."

In the 1995 Sarla Mudgal Case, Justice Kuldip Singh reiterated the need for Parliament to frame a UCC, which would help the cause of national integration by removing ideological contradictions. The same suggestion reflects in the verdicts of other landmark cases such as Jordan Diengdeh vs. SS Chopra and John Vallamattom vs. Union of India.

Yet, it has been strongly opposed by various political parties and most importantly the Muslims. According to them, it clashes with the right bestowed on all citizens by Article 25of the Constitution which grants the freedom of religion to all. They believe that they have the most to lose in case a UCC is implemented since most of their practices may not make the cut.The UCC could also become a tool to suppress and erode the rights of other minorities and homogenize culture.

Nevertheless, a UCC could, in theory, provide equal status to all citizens irrespective of the communities they belong to. Personal laws are widely divergent and lack consistency in all matters which also clashes with the most important right, i.e., the right to equality enshrined under Article 14 in the Constitution. These laws are also more patriarchal in nature and thus, mostly suppress women rights and treat them inferiorly. They disprivilege women. A UCC would promote gender equality and bring about a much needed consistency ushering in a new set of possibilities for all.

The present conditions prevailing in India currently make introduction of UCC a herculean task for the government. There is still an underlying current in the Muslims because of the Triple Talaq judgment, Ram Mandir/ Babri Masjid judgment and introduction of Citizenship Amendment Act. Also, there is a general lack of confidence in the present government which would make the implementation of such an important legislation all the more difficult. So, for the time being, the fate of this much-needed but hotly debated law hangs in the balance, with no indication of which way the wind will blow in the future.

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