Uniform civil code

This article was written by Akanksha, a student of Amity Law School, Delhi.

THE law commission has recently decided to look into and to analyse the issue of implementing Uniform Civil Code, on the recommendation of Government of India. The consequence of which might lead to a heated political debate. Considering the political and religious scenario of India, this issue has always been a controversial one.

What is the meaning of Uniform Civil Code?

The concept of Uniform Civil Code upholds that all the civilians should be governed by the same set of laws, irrespective of their religious identity. In India, the Hindus and Muslims have different set of personal laws(relating to inheritance, marriage, divorce etc.)

Under the British rule, laws governing crime, contract and evidences were framed uniformly, the basis of which was a Lex Loci report of 1840, but the personal laws of Hindus and Muslims were left intentionally  from this uniformity to allow them to continue practice their religious scriptures and customs. Many reformers raised voice to frame laws to check discrimination against women under the religious customs such as practice of Sati. However, British government was never interested to frame laws against personal laws mainly due to fear from orthodox community leaders. Once Indians became free from the control of Britishers, they were free to make their own laws according to the diverse nature of our country. The constituent assembly , which was set up to frame our constitution in 1940s, saw the emergence of  two types of ideologies, – one which supported  the will to reform the society by adoption of a Uniform Civil Code ,Dr. B.R. Ambedkar being one of the many supporters of this ideology  and another, particularly representing Muslims , which aimed to  immortalize personal laws. The collision between these two resulted in making a way for Uniform Civil Code in the Part IV (DPSP) of the Indian Constitution, making this important concept merely symbolic and non justiciable.

Significance of Uniform Civil Code in International Law
Any state which complies with international law, comes under the legal obligation to implement the provisions of such a law in the state’s law. Thus, India which ratified The International Covenant on Civil and Political Rights, 1966 and International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979, becomes bound to enforce provisions to eradicate gender equality in its national laws.[1]Despite that, women in India continue to suffer inequalities and discrimination at the hands of the personal laws (e.g. in matters relating to marriage, divorce, inheritance etc.). So as a step towards a gender just code, the personal laws of various communities in India need a closer look and reform, not only in compliance with the Indian Constitution but also as per the provisions of the International law.

JUDICIARY ON THE NEED FOR UNIFORM CIVIL CODE

The government refrains from taking steps in the direction of Uniform Civil Code due to the fear of losing their vote bank or anger the Muslim population, but the judiciary is under no such constraint and have given several judgments clearing it’s stand on the issue.

In the case of Mohammad Ahmed Khan v. Shah Bano Begum[2], a Muslim woman was given triple talaq from her husband and claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure[3] . The Supreme Court held that the Muslim woman have a right to get maintenance from her husband under Section 125. The Court also held that Article 44[4] of the Constitution has remained a dead letter. The then Chief Justice of India Y.V. Chandrachud observed that, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies“

In Sarla Mudgal v. U.O.I.[5], Kuldip Singh J., while giving the judgment said “When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code”. An appeal went to the government to have a look at article 44 of the constitution.

In Ahmadabad Women’s Action Group (AWAG) v. Union of India[6], a PIL was filed which challenged the gender discriminatory provisions in Hindu, Muslim and Christian statutory and non-statutory law. The Supreme Court in this case said that issues regarding personal laws are to be resolved by the ate and they should not interfere in this. In Lily Thomas v. U.O.I., the supreme court expressed similar views.

In 2003, in John Vallamattom v. U.O.I.[7], C.J. Khare commented: “We would like to State that Article 44 provides that the State shall Endeavour to secure for all citizens a uniform civil code throughout the territory of India. 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 common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.”

 The Supreme Court ruled in Seema v. Ashwani Kumar[8],that all marriages irrespective of their religion be compulsorily registered. The Court felt that, “this ruling was necessary by the need of the time as certain unscrupulous husbands deny marriage, leaving their spouses in the lurch, be it for seeking maintenance, custody of children or inheritance of property.”

Another boost to the uniform civil code came recently from the judiciary when the Allahabad  high court called Triple Talaq as unconstitutional. It is the first time that the court has directly invalidated this process. Justice Kumar while giving the judgment also said that “ no personal laws are above the constitution of the country”. From above we can say that courts have time and again stood against laws which are violating the human rights of individuals and have significantly taken steps to abolish it through some really worth praising judgments.
NEED FOR UNIFORM CIVIL CODE

India needs a uniform civil code for two major reasons:-

First, India being a secular state needs a law to govern all the citizen by common law instead of distinguishing them based on their religious beliefs. There was a major debate regarding the implementation of Uniform Civil Code in India while framing the constitution which finally resulted in the compromise which now can be seem in Article 44 of the Indian constitution that says “The state shall endeavour to secure for citizens a uniform civil code throughout the territory of India.”

The  second reason for the need of a uniform civil code is gender equality. Indian women have become a victim of discrimination at the hands of personal law, be it Hindu or Muslim. The practice of triple talaq is a classic example. The great Muslim social reformer Hamid Dalwai also made the rights of women a central part of his campaign for a uniform civil code, but it is unfortunate that the demand for a uniform civil code has been seen as communal politics.

Complexity in implementation

The vast diversity of the personal laws, along with the devotion to which they are adhered to, makes uniformity of any sort very difficult to achieve. Further problems arise when one tries to detach politics from this issue. Any comment, opinion or discussion always includes some political angel to it as major Indian political parties have their stand clear on the topic. Another issue is that many people still do not know what the uniform civil code actually means. Majorly all the minorities are still amid the misconception regarding Uniform Civil Code and thus it becomes extremely difficult to get their participation in the debate or their views regarding it. Some feel that the complete implementation of Uniform Civil Code may cause a loss of cultural identity of different religion.

CONCLUSION

The enactment of a UCC at once might disrupt communal harmony. The better course would be to bring about small reforms, correcting some inherent irrationality in some of the personal laws, and make them suitable for modern times. The focus should also be on removing disparities between different religions. This might lay the foundation of implementing a UCC at a later date. Goa is the only state in India which has a Uniform Civil Code thus it shows that the enactment of a UCC is indeed feasible in India.

[1] http://www.livelaw.in/declassifying-uniform-civil-code/

[2] AIR 1985 SC 945

[3] “(1) If any person having a sufficient means neglects or refuses to maintain- a) his wife, unable to maintain herself, or b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or d) his father or mother, unable to maintain himself or herself, a magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate mat from time to time direct: Provided that the Magistrate may order the father of a minor female child refereed to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.”

[4] “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

[5]  AIR 1995 SC 1531

[6] AIR 1997, 3 SCC 573

[7] AIR 2003 SC 2902

[8] AIR 2006 S.C 1158