This article is written by Meenakshi Asthana, Advocate Balashsaheb Apte college of law, an intern under Legal Vidhiya
Abstract:
“Wherever there is a settled society, religion is necessary ; the laws cover manifest crimes , and religion covers secret crimes”
On 15th August 1947, India gained Independence in a way leaving the relegious value scattered whereas Veer Savarkar , Nathuram godse’s ideologies wanted to protect Hindutava and wanted to establish a Hindu rastra , because of the atrocities inflicted upon Hindus by Muslims or any other relegion , in this situation the leaders discovered a unified confessional system that was inspired by Egypt in place , under which the personal laws of Hindu, Muslims , Christians , Sikhs and Buddhist , jains and parsis were directly applied in civil courts by secular Anglo Indian judges.
This system. Was involved and included systematically into our constitution and was came into
affect on 26th January 1950. Seldom as the writers of the constitution pointed it out in Article 44,
Uniform Civil code for citizen and Article 372 continuance in force of existing laws and their adaption (372) was used as stophap solution untill a new civil code was enacted for all the
citizens of India irrespective of their relegion . In present scenerio after 73 years after article 44 was enshrined in the constitution, India as a country or say as a whole still lack unified
codification of laws in place of personal law, however the state of Goa has applied the Uniform Civil code, but not in the other states. Despite its constitutional obligation to treat everyone ,
every race, caste, sex, relegion equally before the law Article 14 , or not to discriminate against the same Article 15 India, is a constitutionally declared socialist, secular and democratic republic
-The judges administer – state sanctioned relegious and customary laws apply to different section of ethno-diversity
Keywords: Equality, casteism , personal laws , secularism, discrimination against caste , sex relegion
Introduction:
Been observed nowadays that there’s a lot of hue and cry about migrants from Bangladesh kashmiri pandits and Muslims has been in question regarding their nationality
Seldom as they say writers have depicted the whole scenerio of how the things distributed it’s lineage systematically into our constitution and it’s pointed out as follows
● Article 44 , Uniform Civil code
● Article 372 , continuance in force of existing laws and their adaption {373}
Although 372 was used as stopgap solution untill a new civil code was enacted for all the citizens of India irrespective off their relegion
Personal laws govern matters like marriage , divorce , judicial separation maintenance , adoption etc. Thus whether a man can legally take a second wife with a wife living and then man knowing that she is alive , she hasn’t deserted him or renounced the world above all they have not been divorced is a matter that is governed by the personal laws to which he is subject to. As various systems of ‘personal law’ prevail in the country , this article enjoins on the state the task of
establishing a uniform civil code for the whole of India . Different laws treat this act of having a second marriage without divorcing, being deserted , partner renouncing world , changing religion differently, in Hindu law this entire thing is punishable offence also making the other marriage void,whereas in Muslim law the marriage is totally valid but in Uniform Civil code the fact is universally accepted that the second marriage in no way will be acceptable if the said terms are not followed
To be true to my opinion : What comes into effect because of Uniform Civil code is the mutual respect everyone has for everyone , the hatred that grows due to the differences that personal
conflict and feeling of superiority over another relegion creates , when a case comes into light for example where a Muslim woman is pronounced Talak ul biddat by tripple talak people don’t shy away from commenting how torturing it is for women in general to be treated like a property that can be disposed off without proper separation and not separated with proper respect , i most
certainly agree how torturing it is but just because in Hinduism we don’t have such laws doesn’t mean we are any better domestic violence is a regular thing in every household no matter what religion people are from but just because some race , caste , and religion people have such obnoxious terms as their personal laws a majority of section throws themselves in a position to comment over any case that comes up that shows how patriarchy is affecting the women and
children and putting them in a miserable position . But no matter what one thing i am sure is the Hindu Marriage , divorce , adoption , inheritance and other laws are more acceptable because
Hindus have accepted the Uniform Civil Code in every possible way
Let’s check up on how the Hindu sturcture Background : Ancient sources
● Sruti -literally means ‘what was heard’
● Smritis – the word literally means ‘what has been remembered’
● Digest and commentaries-as the rules of law enunciated in the Smiritis were not always clear , concise and sometimes did not cover all situations , there was a need for systematic exposition of rules of law , legal concepts and principles. This need was satisfied by the commentators in the form of digest and commentaries
● Custom: custom may be defined as a habitual course of conduct generally observed in a community .
A belief in the proprietry of the inperativ nature of a particular course of conduct, produces a uniformity of behavious in following it, and a uniformity of behacious in following a particular course of conduct produces a belief that it is imperative or proper to do so. When from either
cause or from both causes a uniform and persistent usage has moulded the life and regulated the dealing of a particular class of community , it becomes a custom
● School of Hindu law emerged with the emergence of the era of commentaries and digests
. Human law has two main schools ; the Mitakshara School and Dayabhaga School. The Mitakshara school owes its name to Vijananeshwara’s commentary on the yajnavalkya smiriti . The Dayabhaga school owes its origin to Jimutavahanas digest on leading smiritis by the Name of Dayabhaga. The Mitakshara school prevails in the whole of India except Bengal and Assam . The Dayabhaga school prevails in Bengal and Assam. The
Dayabhaga school has no sub -schools while the Mitakshara school has four sub-schooks
, The benaras , the Bombay , the mithila and the Dravida or Madras school
● The Hindu law is not a lex loci ie a local law , but in every sense a personal law , where a Hindu migrated from one part of India to another , prima facie , he carri s with him his personal law and if it is alleged that he has become subject to the local law , then it must affirmatively be proved that he has adopted the local law
ISSUE :
The issues has been the differentiation of treatment and justife and equal treatment given to all inspite of all the disputes like personal law and uniform civil code
There have been cases of disputes arising out of codified marriage , adoption , divorce and maintainance and personal laws governing the same , the cases like Shah bano’s case
{Shah Bano Begum AIR 1985 S C 945}
In this particular case , the supreme court pleaded for a uniform civil code throughout India, and observed as follows
A common civil code will help the case of national integration by removing desperate loyalties to which have conflicting ideologies
{Ms. Jordon Diengdieh vs SS Chopyra AIR 1985 SC}
The court reiterated the urgent necessity for a uniform civil code and observed
“The time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people , irrespective of relegion or caste’
However India claims to provide it’s citizen with an optional secular code ( the SMA of 1954) allowing the individuals , particularly in marriage and divorce law
Whatsoever ,the prime question at this time is whether the existence of secular remedies such as the SMA of 1954 or section 125 of CrPc of 1973, that provides ‘protecting their rights and
freedoms against potential encroachment of state -enforced religious laws
The main objectives is in now times is that discrimination of any kind especially , religion should be eradicated from India , and everything should be applied by Uniform laws hence the mere objective over here is to analyse all the possibl enactee laws and restrictipn imposed to follow personal laws should be minimised in addition to this some journals , news blogs , articles , data chart and graph. Therefore this research work focuses on:
- Disparities in codified law and personal law
- Application of Uniform Civil code
- Article 14&15
- Article 372
● Uniform civil code and Religious Minorities – the UCC is all about National Integration .
It does not talk about abolition of any relegious identity . The Supreme Court has time and again talked about having a Uniform Civil code as per article 44 of the constitution. Personal laws largely concern the minorities. Matters like property , marriage etc are
however , still a function of relegious identity , for Hindus as much as there are for Muslims and Christians. Also Hindu code Bill did not lay the foundation of
‘secularisation of Hindu laws’.the law has missed granting minorities with the Hindu fold itself, a decent and deliberative space , although there are various ambiguities withing the Hindu laws itself
UCC constitution and the supreme court of India-the supreme court has time and again suggested that the parliament should frame a Uniform Civil Code for the country as that will help the cause of national integration . The supreme court is the upholder of the constitution and interprets it in the light of the spirit of the same while article 25&26(xii) of the constitution . These are reflected in the various supreme court exhortations over the years on the sensitive and contentious issue
● Codification of personal laws: the panacea -for the national unity and integrity , which unfortunately are very grave problems of India , the uniformity of the law is very necessary, which can be achieved only through codification. Perhaps it was keeping this objective in view that article 44 of the Indian constitution that is ‘Directive principles of state policy’ it runs as:-
‘The state shall endeavour to secure for the citizens , a uniform civil code though out the territory of India’
Statute and case laws :-
● Article 14- Equality before the law provides that the state shall not deny to any persona equality before the law or the equal protection of the laws within the territory of India’
● The right to equality guaranteed under article 14 consists of two parts (a)-equality before the law- this phrase owes its origin to the English common law. Equality before the law means the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law , the meaning of this phrase is that there shall not be any discrimination before the law on extraneous grounds like rank, office etc
● (b) equal protection of the laws -this owes its origin to the American constitution ..whole both the expressions ‘equalitu before the law’and ‘equal protection of the laws’ aim at
establishing equality of legal status for all, there is some differences between these expressions
● This right of equality, as guaranteed in art.14 is available to both to citizen and non-citizene. It aims at establishing the rule of law in India
Case law:- The Karnataka High court has held that a provision exempting Sikhs from
compulsory wearing a helmet , when riding a motor cycle is not violative of article 14 of the constitution {K . Veeresh Babu v Union of India(A.I.R.1994 kar 56)}
Thus , what Article 14 forbids is class legislation, and not reasonable classification for the purpose of legislation, however , in order to pass the test of reasonable classification , two conditions must be fulfilled namely
- The classification must be founded on an intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group and
- The differentia must have a rational relation to the object sought to be achieved by the statute in question
{Budhan v state of Bihar (1995) ISCR 1045}
A third criterion was formulated in {A.I.R.1980 SC 1382}VC shukhla where the constitutional validity of the special courts act was in a question before the supreme court. The court, in this case,
reiterated the three classical tests for the application of Article 14, namely;
-The classification must be founded on an intelligent differentia which distinguishes persons who are placed in a group from others who are left out of the group
-Such differentiation must have a rational relation to the object sough to be achieved by the act
-There must be a nexus between the differentiation which is the basis of the classification, and the object of the Act
Applying the above three facts tests, the supreme court observed in VC shukla case law, that parliament is not debarred from passing a permanent act to deal with a specified class of persons who occupy high public or political offices are often misuse or abuse then , and held that the special courts act is not violative of article 14 of the constitution
Article 15: prohibition of discrimination on grounds of relegion , race, caste , sex or place of birth
● The state shall not discriminate against any citizen on grounds only on relegion, race, caste, sex , place of birth or any of them
● Relegious or racial disabilities in connection with access to shops, hotels , wells , tanks etc
● Special provisions for women and children
● Special provisions for socially and economically backward classes
Current Development -The Delhi High Court on Tuesday refused to entertain a plea seeking directions to the Law Commission of India to prepare a report on the “Uniform Judicial Code” in order to make legal terms, abbreviations, case registration processes and other aspects of the legal system uniform across the country.
A Division Bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma noted that the apex court, through an order passed in September 2022, had dismissed the plea by BJP leader Ashwini Upadhyay seeking the same relief. It further took into account that no liberty was granted to him to approach the High Court.
“This was dismissed by the Honourable Supreme Court. No liberty has been granted and you withdrew…How can we entertain? Issue (in the petition) can be anything. The Supreme Court order says that the petition is accordingly dismissed as withdrawn,” the Bench remarked.
The Court said that Upadhyay will have seek clarification from the apex court if he wants the High Court to entertain the plea.
Upadhyay contended that this was a general order that it was passed by former Chief Justice of India (CJI) UU Lalit. Therefore, it would be difficult for him to seek clarification.
The Court, meanwhile, also refused to consider a chart that he had prepared on the issue raised in the plea.
Upadhyay ultimately withdrew his plea.
In his plea, Upadhyay stated that he found huge differences while comparing judicial terms, abbreviations, norms, phrases, court fees and case registration processes used in High Courts across the country.
The plea gives examples of different terminologies used by benches of the Bombay High Court and the Rajasthan High Court, stating that the same caused confusion.
He also pointed out the differences in court fees sought for similar matters and of similar valuation in different states, which causes injury to citizens.
“Unequal court fees in different states discriminate among citizens based on their place of birth and residence,” plea adds.
Further, courts are not only adopting different norms and procedures for case registration and using different judicial terms, phrases and abbreviations, but are also taking different court fees, which is against the rule of law and right to justice, the plea asserts.
He, therefore, sought directions to the Law Commission to prepare a report in order to bring uniformity in the judicial system. He further prayed for constitution of an expert committee on the issue and orders to the Law Ministry to “prepare a comprehensive report on Uniform Judicial Code in consultation with the High Courts”.
Conclusion- Sarla mudgal v Union of India (AIR 1995 SC 153)
‘Successive governments have till date been whollu remiss in their duty of implementing the constitutional mandate under Article 44’
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 grounds that this was a matter for the legislature and not the judiciary
{Maharishi Avadhesh v Union of India , 1994 SCC Supply (1)713}
{Pannalal bansilal v. State of AP (AIR 1996 SC 1023)}
, ‘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’
Credit in this respect goes to the small state of Goa,which has taught a lesson to the rest of the
country by enacting a set of ‘Family laws ‘ which apply to all communities in Goa. Based on the Protuguese civil code of 1867, it lays down uniform rules relating to marriage, divorce , succession , guardianship , etc for all persons in Goa, irrespective of their caste, community or
relegion . The code is based on the concept of gender equality, and once prompted the then Chief justice of India Justice Y.V Chandrachud to remark :- ‘It is heartening to find that the dream of a uniform civil code in the country finds its realisation to Goa”
Footnotes and references
● Notes from Nana Pakhivala and Jhabwala
● https://www.ohchr.org/en/special-procedures/sr-religion-or-belief/international-sta ndards
● https://judicateme.com/assesing-human-rights-in-states-that-follow-religious-laws
-for-families-a-case-study-of-india/
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