Uniform Civil Code: A Legal Overview

This article was written by Sougato Ghosh, a student of KIIT University, Bhubaneswar.

Uniform Civil Code (UCC) has emerged to be a contentious issue in India. Uniform Civil Code has been proposed to replace the personal laws based on customs and scriptures of each religious community in India with uniformity in governing each and every citizen. The Constitution of India has a provision for Uniform Civil Code in Article 44 as a Directive Principle of State Policy which states the government that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”Undoubtedly, Article 44 is in the Directive Principles and not the Fundamental Rights of the Constitution of India but Article 37 of the Constitution of India states that “The provisions contained in this Part shall not be enforceable in any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”. Still ever since the Indian Constitution came into effect on 26^th January, 1950, no attempt has been made by the Government of India for drafting a civil code of uniformity for the fear that political parties may lose their Muslim votes.

Today, Indian citizens are governed by different personal laws based on their religion, community, caste, race, creed, etc. A common civil code would ensure all citizens of India to be governed by the uniform laws.

In almost all the developed countries, there one common law for all the citizens. The primary objective behind the proposal of uniform civil code is to put an end on the discrimination based on the religion. When the Constitution of India guarantees equality before laws or equal protection of the laws then there should be any discrimination against the women. Allowing discrimination amounts unconstitutional and void.

Uniform Civil Code became the contentious issue in India during the time of Shah Bano Begum case[1] in the year of 1985, where the muslim woman claimed maintenance from the husband under section 125 of the Code of Criminal Procedure. The Supreme Court of India directed that the Muslim Woman is entitled to claim maintenance from the husband under section 125 of the Code of Criminal Procedure. After the decision, nationwide protest and agitation were held. Then Rajiv Gandhi led Government over-ruled the Shah Bano Begum decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which nullified the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. The ratio behind the implementation of the Act that there should not be any interference with the personal laws.

Further, in the case of SarlaMudgal v. Union of India[2], the dispute which was raised that a Hindu husband, married under Hindu Law, by embracing Islam, can solemnise second marriage. The Supreme Court of India directed that the Hindu marriage solemnised under the Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955.Conversion to Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act and therefore, a second marriage solemnised after converting to Islam would be an offence under Section 494(5) of the Indian Penal Code (1872).

Pros of the Uniform Civil Code

• Uniform Civil Code will provide equal status to all citizens of India. In this era, India should have common civil laws for their citizens based on their religion.
• Uniform Civil Code will promote gender parity. It can be observed that personal laws are discriminatory towards women. Uniform civil code can bring both men and women at par.
• Uniform Civil Code will accommodate the aspirations of the youth.
• Uniform Civil Code will support the national integration. All citizens of India have equality before law and equal protection of the laws as the criminal and civil laws (except personal laws) are same for all the citizens in India. After the implementation of Uniform Civil Code, all citizens of India will have the uniformity in laws. There will not be any scope of discrimination towards women on the basis of religions or personal laws.
• Uniform Civil Code will bypass the contentious issue of reform of existing personal laws. The Uniform Civil Code has been proposed by the aggrieved women to make a replacement of the personal laws based on customs and scriptures of each religious community in India.

Cons of the Uniform Civil Code

• To bring Uniform Civil Code in India, it will be practically difficult due to diversity in India.
• Many communities like minority perceives that Uniform Civil Code will neglect their traditions and impose rules, which will be dominated and controlled by the majority religious communities.
• Interference of state in personal matters: The constitution of India provides right to freedom of religion. With uniform rules, the scope of freedom of religion will be lessened.
• Uniform Civil Code will be a sensitive and tough task.
• Time is not yet appropriate for the implementation of Uniform Civil Code. There has to be given enough time for the implementation of Uniform Civil Code.[3]

Recently, the Supreme Court of India has considered a suo moto PIL on gender discrimination faced by Muslim women owing to arbitrary divorce and second marriage of their husbands during the currency of their first marriage

Also, the Government of India has asked the law commission to examine the issue implementing the Uniform Civil Code. This is the first time that the government of India has asked the commission, which has a crucial advisory role on legal reform, to look into the politically controversial issue of a uniform civil code.[4]

Conclusion

It is to be concluded that people belonging to different religions follow different personal laws which is not only an insult to the nation’s unity, but also raises a question that whether we are a sovereign secular republic country or a feudal country, where people live at the whims and fancies of mullahs, bishopsand pundits.

Major genuine efforts are needed to reform personal laws which must be initiated by the communities. Institutions need to be democratized, strengthened and modernized for this change. Sincere efforts towards women empowerment need to be taken for all women of all religions.

[1] 1985 SCR (3) 844

[2] (1995) 3 SCC 635

[3] http://www.legalserviceindia.com/articles/ucc.htm

[4] https://www.chanakyaiasacademy.com/blog/item/109-article-of-the-week