THIS ARTICLE WAS WRITTEN BY ABRY SUNNI ANTHRAPER, A STUDENT OF JINDAL GLOBAL LAW SCHOOL.
India being a secular country has always strived towards uniformity among all its citizens and how they function within the confines of the very law that guides and applies to them on almost every level. To bring all religions, castes and tribes under a singular law which would be applicable to them it what the supreme court has been trying to do from a very long time, and they hope to achieve this position with the application of the Uniform Civil Code. The code will basically be an embodiment of the directive principles of state policy and was to be applicable to the personal laws of every community in India.
The Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. The aim of this paper is to impart what some of the changes by the Uniform civil code will bring, also how the courts have reasoned why it should be implemented.
The inception for the introduction of a uniform civil code started back during the British colonial times and has since passed on with Nehru’s implementation of the Hindu code bill and the Special marriages act.
The Hindu code bill did many things that are in congruence with what the Uniform civil code was to do as well and as one of it’s hallmarks it had ensured women’s equality as when taken in the context of Religious status of women as with considering their demographic territorially and domestically. But due to the way in which the nation’s culture had developed Nehru thought it best not to force such stringent uniformity upon the citizens as the nation itself is not unified when matters of religion are taken up, and based on this a uniform civil code to judge the different issues that take place as a result of what religion the respondent or defendant belongs to would be to take away from them the special nature and methods that one can be proud to be a part of, which is their religion.
The Hindu code bill could not completely be effective as because of such an act the other minorities would mostly be in a lower stand point as India is a Hindu dominated country.
In this regard though the Special marriage act which is in place to ensure that even if people cannot get married under their religion, they can get married under the guidance of the state. In this way the Special marriages act can be seen as though completing the marriage part which was to be considered as a part of the UCC.
Shah Bano Case
In this case the facts are that a 73 year old woman was divorced by her husband when he said the word ‘Talaq’ in succession of three times, and the woman in this case is asking for maintenance from this man and he is not providing her with it. The Supreme Court had eventually given a decision in her favour while saying that if not under personal laws (in this case shariat laws) then the woman is eligible for maintenance under section 125 of the All India Criminal Code. The Supreme court in this case had mentioned the need for a Uniform civil code.
Following the case a great deal of debates had taken place all over the country. Where by the congress had sided with the conservative Muslims, whereas all women’s rights groups, Hindu right-wing and the Left all opposed it. The fact was simple, the oppression or domination of women did not arise from secular law, nor by a Uniform civil code but only when taking the case of women placed under religious laws. This was the first time in India’s constitutional history that triple talaq, polygamy and ‘ nikah halala’ was challenged which were essential parts of the Muslim faith.
The BJP government under Narendra Modi has declared that the triple Talaq has to be abolished a it curtails the equality of women of the Muslim faith. Following on the premise that the government does have the power to implement a Uniform civil code does not mean that it will prove to be effective, as it is an emotive subject, not one that can be answered by just looking at the law but the culture, history and feelings of the people should be considered. May it be noted that even though it is being argued as being part of Islam, other Muslim dominated countries, including Pakistan, has abolished triple talaq.
The stand point for Hindu’s is mostly regarding a woman’s right to property.
The stand point for Christian’s will be whether the time of two-year enough time before which a divorce shall be granted.
The stand point of the Courts are very clear in the matter of how people get to govern themselves. The Uniform civil code is needed as if the personal laws are made to trump over the Uniform civil code and if there is no single code that has jurisdiction over the others then all people of a separate faith will in effect take the law into their own hands. It would further mean that the level of stress on the side of the courts is going to be extremely high, as the margin for error will become even thinner.
The aim of the Uniform civil code does not seem to hide anything bad, and for all purposes seems to be a legitimate attempt of the government to show the people of India that it does care for all its citizen’s. I for one agree that a uniform civil code would be a much more efficient way to handle things within a country, but that being said it must be with the support of the religions and not a stand-alone decision of the government. After all the demonetization idea was a great goal it was the implementation of it that completely shattered a nation for weeks.