NEED FOR A UNIFORM CIVIL CODE IN INDIA

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NEED FOR A UNIFORM CIVIL CODE IN INDIA

This Article is written by Shaista Waseem

ABSTRACTS

The question of whether the constitution of India is evolved enough to have a unified civil code after 75 years is again being raised. The Uniform Civil Code in India can be used as an effective tool to attain the empowerment of Indian women and the advancement of their status in social institutions such as family and marriage. This article attempts to assess the whole conversation surrounding Uniform Civil Code relating to the debate about its necessity, and various questions about its nature as considered by the judiciary.

INTRODUCTION

A uniform civil code is defined under Article 44 of the Constitution,^{^[1]} under the directive principles of State policy stating that the states must secure the Uniform Civil Code for the residents throughout the region of India. In other words, it means “One Nation – One Law” and has nothing to do with religion. The main objective of the Uniform Civil Code is to replace the personal laws based on the literature and customs of each religious community in India with a typical arrangement of rules governing each citizen. Personal laws are different from public laws, in the sense that they primarily cover marriage, divorce, inheritance, adoption, maintenance, etc. After the Shah Bano case in 1985,^{^[2]} it became one of the most controversial issues in contemporary politics. The ensuing debate centered on Muslim Personal Law, which is based on Sharia laws and has not been reformed since 1937, allowing unilateral divorce and polygamy in the country.

A UNIFORM CIVIL CODE: AN IMMINENT NECESSITY

Colonial India saw many of its laws being codified by the British, such as criminal law, contract law, property transfer law, etc. These were very divergent from religious and cultural factors It can thus be seen that the Contract Act was perfectly in conformity with the law at that time in England. The remaining areas were governed by personal law, such as marriage, family, inheritance, etc. The transfer of sovereignty from the colonizers to the colonized in our country was undermined by strong community tensions. Restoring the harmony of the strongly weakened communities was the ambition of our forerunners. Article 44 was added as a substitute to Article 35 of the Draft Constitution of India. This was included in the constitution as an aspect that was to be realized when the country is ready to accept a uniform civil code and can have social acceptance of the UCC. Yet, 75 years after the adoption of our Constitution, the UCC remains a constitutional chimera to be realized. The necessity of the Uniform Civil Code can be stated as follows:

Ensuring Equality: Currently, different communities in India are governed by different personal laws such as Hindu Marriage Act 1955, Hindu Adoption and Maintenance Act 1956, and Hindu Minorities and Guardianship Act 1956. Likewise, Muslims, Parsis, and Christians are governed by their personal laws.
Even within a religious community, there is not a single common law governing all its members. For example, registration it can be of marriage among Muslims takes place under different laws in different regions, it was compulsory in Jammu and Kashmir 1981 act and its optional in Bengal and Bihar (under the 1876 act).
It can be argued that personal laws violate the principle of equality as given under our constitution.
Further, it can be said that a UCC can act as a means of achieving simplicity, clarity, and intelligibility in personal laws.
The incumbent for national integration: A uniform civil code will separate religion from social relations and personal laws thereby ensuring equality and harmony in our society.
In the case of Mohd. Ahmed Khan v Shah Bano Begum, the Apex Court observed, “A common civil code will help with the cause of national integration by removing contracting loyalties to the law.”
This will contribute to the integration of India as most of the hostility is caused by the preferential treatment of certain religious groups in the laws. This may, over time, inspire believers to look within and attempt to codify and reform according to the old personal laws in accordance with current trends of modernization and integration.
Gender equality: A uniform civil code will also help to promote gender justice by removing the inbuilt discrimination inherent in the provisions of personal laws. Under personal laws, women’s rights are often limited by patriarchal discourse. The UCC will provide liberty to women from the patriarchal rule and thereby provide them the right to equality and freedom.
Create a Secular Society: UCC will disassociate law from religion, a highly desirable goal for a secular and socialist social model of democracy. Further, it will fulfill its constitutional mandate under Section 44 of Directive Principles State Policy.
Simplification of the Indian legal system: UCC will lead to fewer disputes arising from various personal laws. The existences of so many personal laws exist like Hindu laws, Sharia laws, etc. creates confusion, complexity, and contradictions in the adjudication of personal cases, sometimes resulting in delays or the absence of justice. UCC will eliminate this legal overlap.

CONTEMPORARY DEVELOPMENTS

“Neither Necessary Nor Desirable” 21st Law Commission: Most countries are currently moving towards recognition of distinctions. The mere existence of a contrast is not an indication of discrimination, but rather a feature of the rule of the cordial majority.
“Gender Equality”: The importance of the UCC for the women’s movement for gender equality cannot be denied, especially in a country like India where the rights of women are challenged and disenfranchised daily.

BACKGROUND TO THE UNIFORM CIVIL CODE

The origins of the UCC can be traced back to 1885 when the British government presented a report stressing the need for a uniform codification of Indian law relating to crime, evidence, and contracts.

At the end of British rule, there was an increase in legislation dealing with personal matters which forced the government to form the B N Rau committee in 1941 to codify Hindu law. Based on these recommendations, a law was passed in 1956 the Hindu Inheritance Act to amend and codify the laws relating to intestate or involuntary succession, Hindus, Buddhists, Jains, and Sikhs. However, Muslims, Christians, and Parsis have separate personal laws. For the sake of uniformity, the courts have often stated in their judgments that governments should move towards a uniform civil code.

The judgment in the Shah Bano case is well known, but the court also raised the same points in several other major judgments. Recognizing that practices such as triple talaq and polygamy negatively impact women’s right to a dignified life.

PROS OF THE UNIFORM CIVIL CODE

Equality for all citizens: A democratic country based on religion, class, family, gender, etc. should have civil and personal rights for its citizens regardless.
Promoting gender equality: Personal laws of almost all religions are believed to discriminate against women. Most men tend to be more important when it comes to inheritance. Equal civil rights through UCC will make men and women equal.
Meeting the needs of youth: India is a new society where 55% of the population is under 25 years old. Their traditions and needs are based on universal and international principles of equality, humanity, and modernity. Through UCC their needs and aspirations can be incorporated.
Support National Integration: All Indian citizens are equal before the courts under penal and other civil laws. After the implementation of the UCC, all citizens will share the same personal laws also.
Overcoming the controversial problem of reforming the existing personal law: The current personal law is mostly based on the patriarchal ideas of the upper classes of each religious organization. The UCC demand was mainly made by women willing to change their existing personal rights, which patriarchal orthodoxy opposed, believing that reforming personal rights would work for their sanctity.

CONS OF UNIFORM CIVIL CODE

Issues Caused by Diversity in India: Due to Religion, belief, religion, state, etc. in India. There is multiculturalism, and it becomes difficult to create a different law for human problems such as marriage.
UCC is believed to be violative of freedom of religion: Many communities, particularly minorities, believe that the Uniform Civil Code violates their right to freedom of religion. They fear that customary law will ignore their traditions and create laws controlled and influenced by the majority church.
State intervention in personal matters of an individual: The Constitution guarantees the freedom of individuals to choose their religion. Legislation and enforcement of inconsistent laws will restrict freedom of religion.

JUDICIAL INTERPRETATION THROUGH THESE YEARS

In Mohammad Ahmed Khan v. Shah Bano Begum also known as the Shah Bano case, the SC held that “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter.” Although the decision was strongly criticized by Muslim fundamentalists, it was still seen as a liberal interpretation of the law in light of gender justice requirements. Later, under pressure from Muslim fundamentalists, the central government passed the Muslim Women (Protection of the Right to Divorce) Act 1986, which granted alimony to Muslim women under Section 125 of the Cr. P.C.

In the case of Sarla Mudgal (smt.), President, Kalyani and Others v. UOI and Others^{^[3]} while rendering its judgment, the Supreme Court ordered the government to fulfill the mandate of Article 44 and to file an affidavit stating the action taken in the case and held that “successive governments have been grossly negligent in the exercise of the functions under Article 44 of the Constitution, therefore, the Supreme Court requested the Government of India through the Prime Minister of the country to have a fresh approach towards Article 44 of the Constitution of India and to work towards a UCC for its citizens throughout the territory”.

In Lily Thomas etc. v. Union of India and others,^[4] The Supreme Court held that the desirability to a unified civil code is beyond doubt. But this can only be achieved when society is properly created, and the politician in the form of leaders does not gain personal ground, but rises above and awakens the masses to embrace change for the good of the nation as a whole.

In the case Shabnam Hashmi v. the Union of India,^{^[5]} the petitioner requested the Supreme Court to establish a selection process for the adoption of children regardless of religion. The Supreme Court allowed the JJ Law to be applied to Muslims and upheld it. The Court agreed that this constitution is a religious law and therefore applies to all Indian citizens regardless of their religion. Adoption is recognized as a fundamental right in Article 21 of the Constitution. The court raised the issue of legal disparity between personal laws, such as intended adoption.

In Shayara Bano v Union of India,^[6] the apex court dealt with the legal status of triple talaq (divorce practice) in Muslim personal law. In this case, a woman named Shayara Bano divorced her husband because she had recited three talaqs. This practice is discriminatory because it is only open to men and does not require the consent of women. Five judges of the Supreme Court found the triple talaq practice unconstitutional and unconstitutional. Again, the question of integration of civil rights comes up to protect the enforcement of individual rights.

RECENT DEVELOPMENT: THE UNIFORM CIVIL CODE BILL, 2020

On December 9, 2020, BJP Rajya Sabha member Kirodi Lal Meena presented the special member’s bill to the House of Representatives. The India Fair Trade Act 2020 requires the creation of a National Research and Development Committee to prepare the UCC. Its main purpose is marriage, divorce, alimony, inheritance, adoption, inheritance, alimony, etc., including The Uniform Civil Code Bill 2020,^{^[7]} which was included in the BJP’s manifesto for the 1998 and 2019 elections and was even proposed by Narayan Lal Pancharya for consideration in Parliament in 2019. The bill was resubmitted in March 2020 but not afterward.

Meanwhile, a petition has been filed with the Delhi High Court for the formation of a panel of judges or a panel of experts asking the Central Government to prepare a Uniform Civil Code in our country.

Recently, Uttarakhand Prime Minister Pushkar Dami said that the proposal for the implementation of the Uniform Civil Code (UCC) is ready and the state government will submit the final notification within the next two months.

This is one of the promises Dhami made before the 2022 general elections in Uttarakhand when the current government comes to power for the first time. In May last year, the government formed a five-member task force headed by Supreme Court Justice (retd) Ranjana Prakash Desai to prepare a proposal to implement the UCC in the state.^{^[8]}

CONCLUSION

Implementing the Uniform Civil Code is a difficult but not impossible process. Dr. B.R. Ambedkar’s committee proposed an intermediate solution that it was quite possible that the future Parliament would adopt a provision that the Code would apply only to those who had declared that they wished to be bound by it so that the application of the code at the initial stage can be purely voluntary. The Constitution guarantees the fundamental right of citizens to equality before the law and equal protection of the law, and some action is needed in these areas. The application of the provisions of Article 44 which direct the State to endeavor to obtain a uniform civil code throughout the territory of India for the citizens can be a significant weapon to fulfill the objectives under the aforesaid sections.

^[1]Art. 44, the Constitution of India.

^[2] 1985 (1) SCALE 767

^[3] AIR 1995 SC 1531

^[4] AIR 2000 SC 1650

^[5] Shabnam Hashmi v. the Union of India, (2014) 4 SCC 1

^[6] Shayara Bano v Union of India, AIR 2017 9 SCC 1 (SC) .

^[7] The Uniform Civil Code In India Bill, 2020(pending).

^[8] Kumar Anshuman,Draft proposal on Uniform Civil Code ready, says Uttarakhand CM Dhami, The economic times(05/04/23), available at https://economictimes.indiatimes.com/news/politics-and-nation/draft-proposal-on-uniform-civil-code-ready-says-uttarakhand-cm-dhami/articleshow/99249452.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst