UNIFORM CIVIL CODE: PROBLEMS AND THE WAY FORWARD

This article was written by Prashant Yadav, a student of S.S.Jain Subodh Law College.

INTRODUCTION

“Injustice anywhere is a threat to justice everywhere”- Martin Luther King

In India, a country comprising of innumerable customs and communities, the roots of personal laws are very old. Today, they have cropped up as one of the key factor of conflict among the citizens of the country. Several cases have been witnessed in the history showing how personal laws have violated the provisions of Constitution. Uniform civil code administers a singular set of secular laws to govern all citizens, irrespective of the religion, caste or region.

India has always abided by spirit of ‘Secularism’ as has been mentioned in the preamble of its Constitution. There are many religions following their own respective personal laws. In the name of personal laws, people are subjected to atrocities and they have no resolve to it. The Uniform Civil Code becomes a need of hour against the draconian personal laws.

India is a secular state and nation, which means that it does not follow any one particular religion or there is no official religion for the country. It means that the state will not be dependent on any kind of religious institutions for taking decisions for the state, it will not interfere with the religious matters and the religion will not interfere with the efficacy of the state. India is also, the world’s largest democracy and the second most populous countries of the world and it is emerging as a major power since the 1990’s. It has a strong military and has cultural influence over everything and its economy is fast growing and powerful. India is a highly diverse country with so many linguistic, cultural and religious identities. This is also reflected in its federal political system, whereby power is shared between the central government and the states. Religions not only have been serving as the foundation of the culture of India, but have had enormous effect on Indian politics and society. In India, religion is a way of life. It is an integral part of the entire Indian tradition.[1]

Uniform Civil Code (UCC) is the manifestation of contemporary progressive nation, which shows that the nation has been elevated from religion, race, caste, and sex and birth discrimination. After 72 years of independence and claiming that India is a secular country, can help combat the misuse of personal laws for selfish purposes.

First time demand for Uniform Civil Code was raised by India’s first Prime Minister Jawahar Lal Nehru but he failed to implicate the provision stating that Muslim society is not ready for the change.[2]

Article 44 that runs as follows: “The State shall endeavor to secure for all citizens a uniform civil code throughout the territory of India.”Uniform Civil Code is a term which has its roots from the concept of Civil Law Code. The purpose concealed in the uniform civil code is to eliminate the contradictions based on religious ideologies and promote the concept of national integration.

There are different laws like the Hindu Marriage Act; the Hindu Succession Act; the Hindu Minority and Guardian ship Act, the Hindu Adoption and Maintenance Act governing the personal matters of Hindus.

UNIFORM CIVIL CODE AND THE PERSONAL LAWS

Women have always been considered inferior to the position of men and that India is a patriarchal society since the ancient times. The women are considered inferior in most of the personal matters as compared to men, especially when it comes to the discussion of the topic of the matrimony or the succession, adoption or even the inheritance.

The advent of Islam has contributed much when it comes to the deterioration of the Muslim women and the escalation of their problems.[3]

SECULARISM AND THE UNIFORM CIVIL CODE

The Preamble of the Indian Constitution states that India is a Secular, Democratic, Republic. This means that there is no State religion. A secular state shall not discriminate against anyone on the ground of religion. A religion is only concerned with relation of man with God. It means that religion should not be interfering with the mundane life of an individual. The process of secularization is intimately connected with the goal of uniform Civil Code like a cause and effect. In the case of S.R. Bomai v. Union of India, as per the Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities and can be regulated by the State by enacting a law.[4]

The reason why a country like India cannot undergo a renaissance is very clear. We have discussed above how there is prevalence of not only different religions in the country but also their own personal legislative laws. This is why chances are, that the conflicts, instead of decreasing may go on increasing and showing reverse effects on the laws that are made. For instance, a practice or a tradition in one’s personal law may be acceptable but on the other hand, it may not be acceptable to the people of other personal laws. So, when the traditions will be in practice, the nature of the conflict will transform itself from general differences to hardcore animosity.[5]

UCC AND ROLE OF JUDICIARY

In the post-colonial India, the role of Judiciary in the implementation of uniform civil code is very appreciable. In fact it is the judiciary, which through its interpretations paved the way towards uniform civil code.

For the very first time in the case of Mohd Ahmed Khan vs. Shah Bano Begum pertaining to the liability of a Muslim husband to maintain his divorced wife beyond iddat period, who is not able to maintain herself, the Supreme Court held that Section 125 Cr. P. C which imposes such obligation on all the husbands is secular in character and is applicable to all religions.

In Ms. Jordan Deigndeh vs. S.S. Chopra, D Chinappa Reddy, J. speaking for the court referred to the observations of Chandrachud, C.J. in Shah Bano’s case and observed as under: “The present case is yet another event which focuses on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of uniform civil code is exposed by the facts of the present case.

The Government of India if therefore requested through the Prime Minister of the Country to have a fresh look at Article 44 of the Constitution of India and Endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.

OBSTACLES

The three objections raised for implementations of UCC in India by communities: Firstly, Article 44 of Indian Constitution must be repealed because personal laws are sacrosanct and immutable and no legislature can amend it: Such an objection is baseless, irrational and meaningless because there is nothing divine about personal laws.

Secondly, UCC is against fundamental right guaranteed under Art. 25 and 26. Both Article 25 (the right freely to profess, practice and propagate religion) and Article 26 (freedom to manage religious affairs) are, however, “subject to public order, morality and health” and to the values enshrined in all other fundamental rights such equality and social justice.

Thirdly, UCC is against fundamental right contained in Art. 29. The another defense taken against Art. 44 are of Art.29 that guarantees right as to ‘culture’. It is contended that personal law forms a part of ‘culture’. The word ‘culture’ is not defined in Art. 29. However, one thing is certain that it has to be read with Article 44 & 51 A (f).

RECOMMENDATIONS

When it comes to the question of someone asking us regarding the desirability of the Uniform Civil code, we strongly believe that there is no need of the Uniform Civil Code to be introduced and this opinion is based on several reasons which are opined below :-

➢ The first reason why we would like to state that is, if the Uniform Civil Code is enacted and implemented, there are high chances of massacre, and riots like situations happening again which will lead to the disintegration of the country.

➢ Secondly, the problem with the Uniform Civil Code and the personal laws will remain the same and there will be no difference because in the Uniform Civil Code, there will be a set standard of rules which will further not be able to cover each and every aspect of the personal law and which will led to even more problems that we have today.

CONCLUSION

A Uniform Civil Code sets the precedent for attaining true equality and egalitarianism. It will help in integrating India more than it has ever been since independence. Bringing in UCC cannot be a knee-jerk step but implementation of India’s secularism could be made by enacting personal laws outside the purview of religion. Uniform Civil code is also a major step towards gender justice especially for Muslim women. Most of the personal laws have bias against rights of women, whereas, bias is not only against women but also operates against men. If all Indians have same laws governing them, then the politicians will have no chance of exploiting any community in exchange of their votes. It will not only raise the bar of the legal system but also help in the progress of India as a nation.

The Government should draft a Common Civil Code with the opinion of Law Commission, National Human Right Commission, and National Commission for Women, Former Attorney Generals, Solicitor Generals and Judges of the Supreme Court and must implement the UCC in spirit of the Article-44 of the Constitution on priority.

Uniform Civil Code can be successfully introduced only after achieving improved levels of literacy, awareness on various socio-political issues, enlightened discussions and increased social mobility. A secular India needs a uniform civil code. To mark time is to march with the communalists. Thus, the ultimate aim of reforming uniform civil code should be ushering in the new dawn of freedom, dignity and opportunity for both the sexes equally.

[1] http://www.livelaw.in/uniform-civil-code-codified-personal-law/

[2] http://www.news18.com/news/india/uniform-civil-code-impossible-because-scs-triple-talaq-verdict-protects-muslim-personal-law-aimplb-1513849.html

[3] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1669547

[4] http://journal.lawmantra.co.in/wp-content/uploads/2015/05/17.pdf

[5] Lucknow University yearly newsletter 2016