UNBORN CHILD OF CONSTITUTION: UNIFORM CIVIL CODE

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This article was written by Rishabh Rathore, a student of Raffles University.

“If a law is unjust a man is not only right to disobey it, he is obligated to do so and I would like to be that person who is concerned about freedom and equality and justice and prosperity for all people therefore there is a need to enhance the unborn child of constitution that is Uniform Civil code (UCC). It will have provision related to current situation and requirements. It will also give chance to review old laws”.

ABSTRACT

The aim of this research paper is to determine the extent and the scope of Uniform Civil Code in India. This goes on to understand its impact on the Indian society by discussing various pros and cons of adopting the code.

INTRODUCTION

“The constitution provides for freedom of religion, not freedom from religion”. Religion is the cause of all the problems in the world. We don’t believe in organized religion at all, it’s what separates people and the same has been made by the men only. Religion is doing every regardless thing other than those what is being right. Essence of all religions is one only their approaches are different. One religion just presents fragments, it causes war. More people have died because of religious conflict than any other things. Just like a candle can never burn without a fire, man can never live happily without being religion free. All religion is evolved simply out of fraud, fear, greed and imagination. We wish that, there will never be a religion which let people to hate each other instead there must be one unified code to remove the religion from freedom. We don’t need religion to live freely, if we can’t determine right from wrong then we lacks empathy not religion.

OBJECTIVE UNDERLYING UNIFORM CIVIL CODE

One of the greatest problems that India has ever faced is the dispute about the personal religious laws and the need to adopt the Uniform Civil Code. “The rationale behind enacting Uniform Civil Code is that it aims at unifying all personal religious laws and shall govern all citizens by a single set of laws. The laws shall evenly govern all family laws such as marriage, adoption, maintenance and inheritance. “The objective underlying a uniform civil code is to enhance national integration by elimination contradictions based on religious ideologies. All communities in India would then stand on a common platform on civil matters like marriage and divorce, which are currently governed by diverse personal laws. All communities in India would then stand on a common platform on civil matters like marriage and divorce, which are currently governed by diverse personal laws. The pertinent question that poses itself is: If the same law of contract or torts applies to a Hindu and a Muslim, why not the same law of marriage?

 Article 44 of the Constitution of India, whichstates, “The state shall Endeavour to secure for the citizens a Uniform civil code throughout the territory of India”. However, as clarified by Article 37, directive principles are not enforceable by any court, although they are fundamental in the governance of the country. Regardless of the Indian Constitution having a directive that empowers the legislature to enforce a civil code, this directive has not yet been enforced.

Owing to the huge diversity in the country particularly in terms of religious beliefs and other related practices the authors of the Indian Constitution did not consider it right to make this as a binding law as this would result in nothing more than mass agitation and political instability at that time. Therefore, they simply made this provision and empowered the State with a sole view that the State shall enforce it in the future if need be.As once observed by the Supreme Court, the implementation of a uniform civil code is imperative for both, the protection of the oppressed and the promotion of national integrity and unity. It is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Marriage, divorce, adoption, succession and the like are matters of a secular nature, and can therefore be regulated by a law applicable to all persons in a country.[1]

APPROACH TO THE JUDICIARY

Time and again, the judiciary has given a clear call for the implementation of a uniform civil code in India. In 1985, the Supreme Court reminded the Parliament in very strong terms to frame a uniform civil code in Shah Bano’s case[2].In that case, poverty- struck Muslim woman claimed maintenance from her husband under s.125 of the Code of Criminal Procedure, after she was given a triple divorce by her Muslim husband.The Supreme Court held that she did have such a right and observed that even the Quran imposes an obligation on a Muslim husband to make a provision for his divorced wife. Laminating that Article 44 of the Constitution had remained a dead letter, the then Chief Justice of India, Justice Chandrachud, observed as under:“A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”. The response to this judgment was prompt, strong and reactionary. Protestors took to the streets, disturbances erupted all over the country and Muslim leaders vowed that they were prepared for any sacrifice to protect their personal law.The government, led by Prime Minister Rajiv Gandhi, reacted immediately and Parliament passed the Muslim Women’s (Protection of Rights in Divorce) Act, 1986, which effectively nullified the decision of the Supreme Court in Shah Bano’s case.

The second case when the Supreme Court once again gave a strong reminder to the government in the matter was Sarla Mudgal v. Union of India[3], when the apex court reviewed four cases where the facts were similar. The question before the court was whether, after contracting a Hindu marriage, the husband could convert to Islam and marry a second wife, without divorcing the first.The Bench, headed by Justice Kuldip Singh held that an errant Hindu husband could not do so to circumvent the provisions of Hindu law and would be punishable for bigamy under the Indian Penal Code. In a rather lengthy judgment, the Judge touched upon the importance of a uniform civil code at least twenty times, and lamented as under:“Successive governments have, till date, been wholly remiss in their duty of implementing the constitutional mandate under Article 44.”

In the above case, the court directed the then Prime Minister, PV. Narasimha Rao, to take a fresh look at Article 44, observing that since the enactment of the Constitution, a number of governments have come and gone but have failed to make any effort towards this constitutional mandate.

Again, in 2003, when a Christian priest from Kerala, Father John Vallamatton, knocked at the doors of the Supreme Court, the apex court declared S. 118 of the Indian Succession Act to be unconstitutional, as it imposed an unreasonable restriction only on Christians in the matter of religious or charitable bequests[4]. The Bench, headed by the then Chief Justice Khare, observed as under:“It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a uniform civil code in the country.”

However, when a writ petition was filed calling for a direction to mandate the government to introduce a uniform civil code in the country, the same was dismissed on the ground that this was a matter for the legislature and not the judiciary[5]

Likewise in one another case,[6] it was held that although a uniform civil code is highly desirable, it ought not to be enacted in one go, as that would be counter-productive to the unity and integrity of the nation.Even the strong outbursts of Justice Kuldip Singh referred this, which were later watered down with an observation that they were only in the nature of obiter dicta and not legally binding on the government.In the latest landmark judgment (delivered on February 9, 2011), the Supreme Court looked at the issue from a slightly different angle, and lamented that ever since independence, the attempts of the government to reform personal laws have not gone beyond Hindus, who have shown more tolerance in this respect. In the words of the apex court, “The Hindu community has been tolerant of these statutory interventions. But there appears a lack of secular commitment, as it has not happened for other religions.”

Thus, as seen above, the apex court has on several instances directed the government of realize the Directive Principle enshrined in our Constitution and the urgency to do so can be inferred from the same. The stand taken by the Supreme Court is interesting. On the one hand, it has, time and again, recommended early legislation for ushering in a uniform civil code. On the other hand, it has rejected all attempts to do so through public interest litigation. Sandwiched between the Supreme Court’s mixed response and the legislature’s wariness, it is clear that the implementation of a uniform civil code in India will remain a distant dream for a long time to come. In 1954,when Prime Minister Jawaharlal Nehru was asked why Article 44 had not yet been implemented, he declared: “I do not think that at the present moment, the time is ripe in India for me to try to push it through.” In other words, he did not feel that the country was ripe enough for such an enactment at that time, which was more than fifty- five years ago. Sadly, it appears that even today, the country is not ready for it.

The reason why Parliament has been unable to pass a suitable legislation in this respect, even after six long decades of independence, is that there is no sufficient support for the move within the Parliament itself.

Since this involves radical changes in existing personal laws, the move for reform would take a better shape if there is sufficient pressure from within the various communities that co-exist in India, rather than by one broad sweep of legislation. Moreover, for historical and other reasons, the demand for a uniform civil code has now acquired communal and political overtones, which have effectively overshadowed the innate merits of such a law. In the fact that several other ‘guiding stars’ of the Constitution of India have also not been implemented till date, and that Article 44 is not an isolated instance of a directive principle of state policy that still remains unfulfilled. Like the all-India law that prohibits consumption of intoxicating drinks, and which law has been implemented to guarantee equal pay for equal work to both men and women. There is yet many angles from which this issue needs to be examined carefully. There can be no doubt at all that personal laws must necessarily be in conformity with the Constitution of India – and not the other way round. NowArticle 25 of the Constitution, which deals with fundamental rights, and guarantees the freedom of conscience and the right to profess, practice and propagate religion. Thus it follows that no set of laws can violate Article 25, which is a fundamental right, as contrasted with Article44, which is a directive principle. Clearly, Article 25 were enacted to protect the religious freedom of various communities in the country.

 This leads to a unique dilemma: Can the country really have a uniform set of laws for all citizens, which necessarily discards some personal laws, and yet is in consonance with the freedom of religion guaranteed by Article 25 of the Constitution?The concept of an optional uniform civil code has often been mooted. Ideally, a uniform civil code ought to focus on rights, leaving the rituals embodied in personal law intact within the bounds of constitutional propriety. If it is made optional, it can provide free choice, and facilitate harmonization of social relationships across the country in keeping with the changing contours of emerging societal realities.

The law is communal insofar as each community or religious group has its own distinct law to govern domestic relations. It is also personal insofar as each person carries his own aw wherever he goes in India. The family law is partly statutory and partly non-statutory. The present-day family law is thus a maze. There is no lex loci in India in matters of marriage, succession and family-relations. Thus is very confusing. With a view to achieve uniformity of law, its secularization and making it equitable and non-discriminatory, the Constitution contains Article 44 of the Directive Principles of State Policy which runs as follows; “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”.

The secular activities, such as inheritance covered by personal laws should be separated from religion[7]. A uniform law thus prepared and made applicable to all would on the contrary promote national unity. It was pointed out at that time that, firstly, as Common Civil Code would infringe the fundamental right of freedom of religion as mentioned in Article 25 and secondly, it would amount to a tyranny to the minority. The first objection is misconceived because secular activity associated with religious practice is exempted from this guarantee and since personal laws (as argued from this point of view) pertains to secular activities they fail within the regulatory power of the state. Regarding the second point, nowhere in advanced Muslim countries has the personal law of each minority been recognized as so sacrosanct as to prevent the enactment of a civil code

Communalism breeds discrimination at two levels: one, between people of different religions and two, between the two sexes. This dangerous and ruinous effect should be done away with, possibly by introducing a Uniform Civil Code. For women who constitute almost half the population of India, the Uniform Civil Code provide with equality and justice in courts of law- irrespective of their religion in matters pertaining to marriage, divorce, maintenance, custody of children, inheritance rights, adoption etc.

The only step taken forward in this direction was the codification f the Hindu law in spite of great protest; but the codification of Muslim law or enacting a Common Civil Code is a sensitive issue owing to its politicization. Enlightened Muslim opinion however, is in favors of codification.

LAW COMMISSION SAYS

The issue of Uniform Civil code was not just about Triple Talaq or Muslims, it is about the people of all religions in the country including Hindus, Christians, Muslims, Parsis and others. Despite being a Sovereign, socialist, secular democratic republic, India had allowed various practices under different ‘Personal Laws”. Due to the difference in various religious practices, many of the punishments are no longer in force as there in common criminal law now. Since the constitution of India ensures equality to all citizens there should be Uniform Civil code also[8].The Centre has reportedly asked the Law Commission, which has an advisory role on legal reform, to examine the implications of implementing a uniform civil code. Union Parliamentary Affairs Minister, M Venkaiah Naidu, had recently favored a debate on “common civil code” he said, adding thathe favors the term “common” civil code over “uniform” since “Uniform conveys a different meaning”.

Union Government had sought a report from the Law Commission of India on the issue and Commission mentioning that different acts pertaining to marriage and divorce and pointing out why there should be different Acts for religious practices when there was a common criminal law. It is rightly opined that a uniform civil code should not be drafted, as sometimes suggested, by putting together the best elements from various existing personal codes, as this could invite controversies. It would be far better that such a code is framed de novo by an independent body like the Law Commission, in consultation with experts and relevant interests, as a citizens’ charter governing family relations.

Common Civil Code: Need or Not

The four cases of, Shah Bano Begum, Mary Roy , National Anthem and Sarla Mudgal , expose the domination of religion over a community be it Muslim, Syrian Christian or Jehovites. It is a tyranny of the minority over majority. The unity of India would be at stake, if religion is allowed to tighten its grip over Indian society. We being a Sovereign Socialist Secular Democratic Republic and in which the State has no religion; it favors none and is a foe to none. Humanism is our creed and a Common Law for all Indian is our ideal. We believe and subscribe to rule of law and it is only a Common Civil Code that would help establish the rule of law. It is the panacea for all our ills.

Dr.Ambedkar, the principal architect of the Indian Constitution was of the view that the provision relating to a uniform civil code should be included in the fundamental rights chapter and thus should be made justifiable. However, on the point whether the same should be the committee was divided. Rajkumari Amrit Kaur, M.R. Masani and Hansa Mehta wrote in a dissenting note “We are not satisfied with the acceptance of a Uniform Civil Code as an ultimate social objective. One of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion which keeps the nation divided into water-right compartments in many aspects of life ,a uniform civil code should be guaranteed to the Indian people of five to ten years

Uniform Civil Code Bill

A Bill on voluntary Uniform Civil Code is almost ready for introduction in the session of Parliament. A voluntary uniform civil code is a contradiction in terms. The moment it is made optional it ceased to be uniform. Any attempt to make the code voluntary or optional must be opposed. Instead of framing such optional civil code, the government would do well to take immediate steps to codify each set of personal laws incorporating therein the requisite reforms making them uniformly applicable to all the members of the concerned community.

The Bill covers personal law relating to marriage, divorce, minority, maintenance, guardianship and succession. The bill would be applicable to those who opt for it. If the bill is passed it would repeal the Special Marriage Act, 1954. The law commission has also proposed consolidation of the Indian Divorce Act and the Indian Christian Marriage Act into one statute on the analogy of the Hindu Marriage Act and has also suggested certain reforms in law.

REASON WHY INDIA NEED A UNIFORM CIVIL CODE[9]

It Promotes Real Secularism:What we have right now in India is selective secularism, which means that in some areas we are secular, and in others we aren’t. A uniform civil code means that all citizens of India have to follow the same laws whether they are Hindus or Muslims or Christians or Sikhs. This sounds fair and secular to me. A uniform civil code doesn’t mean it will limit the freedom of people to follow their religion, it just means that every person will be treated the same. That’s real secularism.

 All Indians Should be Treated Same: Right now we have personal laws based on particular religions, which means that while Muslims can marry multiple times in India, a Hindu or a Christian will be prosecuted for doing the same. This doesn’t seem like equality to me. All the laws related to marriage, inheritance, family, land etc. should be equal for all Indians. This is the only way to ensure that all Indians are treated same.

It will Give More Rights to the Women: A uniform civil code will also help in improving the condition of women in India. Our society is extremely patriarchal and misogynistic and by allowing old religious rules to continue to govern the family life we are condemning all Indian women to subjugation and mistreatment. A uniform civil code will help in changing these age old traditions that have no place in today’s society where we do understand that women should be treated fairly and given equal rights.

Every Modern Nation Has it:A uniform civil code is the sign of modern progressive nation. It is a sign that the nation has moved away from caste and religious politics. While our economic growth has been the highest in the world our social growth has not happened at all. In fact it might be right to say that socially and culturally we have degraded to a point where we are neither modern nor traditional. A uniform civil code will help the society move forward and take India towards its goal of becoming a developed nation.

Personal Laws Are a Loop Hole: The various personal laws are basically a loop hole to be exploited by those who have the power. Our panchayats continue to give judgments that are against our constitution and we don’t do anything about it. Human rights are violated through honor killings and female foeticide throughout our country. By allowing personal laws we have constituted an alternate judicial system that still operates on thousands of years old values. A uniform civil code would change that.

 It Will Help in Reducing Vote Bank Politics: A uniform civil code will also help in reducing vote bank politics that most political parties indulge in during every election. If all religions are covered under the same laws, the politicians will have less to offer to certain minorities in exchange of their vote. Not having a uniform civil code is detrimental to true democracy and that has to change.

It Will Integrate India: A uniform civil code will help in integrating India more than it has ever been since independence. A lot of the animosity is caused by preferential treatment by the law of certain religious communities and this can be avoided by a uniform civil code. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct.

Merits of Uniform Civil Code:

If a Common Civil Code is enacted and enforced:

• It world help and accelerate national integration;
• Overlapping provisions of law could be avoided;
• Litigation due to personal law world decrease;
• 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 diversionist forces

Conclusion:

After such a deliberate discussion it can be said that the mere three words and the nation breaks into hysterical jubilation and frantic wailing. This uniform civil code has social, political, and religious aspect. The UCC would carve a balance between protection of fundamental rights and religious dogmas of individuals. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious and political considerations.

But to conclude, I would like to say that citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only affront to the nation’s unity, but also makes one wonder whether we are sovereign secular republic or loose confederation of feudal states, where people live at the whims and fancies of mullahs, bishops and pundits. I strongly support the crusade for the implementation of the UCC and homogenizing the personal laws. I support it, not because of any bias, but because it is the need of the hour. It is the high time that India had a uniform law dealing with marriage, divorce, succession, inheritance, and maintenance.When positions are this hard and conflated, the natural reaction is shy away from even moving towards a common set of laws that upholds human rights, as has been the case and India’s failure as a democratic republic then it’s time for government to take initiative and move towards benefit for all by giving birth to a unborn child of constitution[10].

[1] Available at http://www.shareyouressays.com/117258/essay-on-the-uniform-civil-code-in-india.

[2] Mhd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

[3] AIR 1995 SC 153.

[4]John Vallamatton v. Union of India, AIR 2003 SC 2902.

[5]Maharishi Avadhesh v. Union of India (1994 SCC Suppl. (1) 713).

[6]Pannalal Bansilal v. State of AP, AIR 1996 SC 1023.

[7]Available at http://www.shareyouressays.com/116813/essay-on-the-importance-of-uniform-civil-code-in-india.

[8] Available at  http://www.thehindu.com/news/national/karnataka/Uniform-Civil-Code-not-just-about-Muslims-S.M.-Jamadar/article16082346.ece.

[9] Available at http://hillpost.in/2013/08/top-7-reasons-why-india-needs-a-uniform-civil-code/95038/.

[10]Available at http://www.firstpost.com/politics/lets-debate-uniform-civil-code-because-weve-long-ignored-real-minorities-2866988.html.