Critical Analysis of Uniform Civil Code: Nivedita Kushwaha & Tapasya Aren

TITLE: CRITICAL ANALYSIS OF UNIFORM CIVIL CODE

Author: Nivedita Kushwaha

Co-Author: Tapasya Aren

ISSN: 2582-3655

ABSTRACT

The term Uniform Civil Code[1] means a uniform system of rules and law for each and every citizen of the country irrespective of their religion, race, caste, gender, etc.

In this article, the researchers have emphasized the need for the Uniform Civil Code in the country. The introduction would bring to your notice what Uniform Civil Code actually means and how it came into the minds of our Constitution makers that they added it in our Indian Constitution. The first chapter is “Judicial evaluation and judgments till date” which covers the judicial pronouncements delivered related to this Code hitherto and all the provisions mentioned under Indian law related. The next chapter is “Relationship of Uniform Civil Code with Secularism” which focuses on how the different personal laws often prove curse (instead of boon) to the people and violate the principle of secularism promised in the Preamble of the Indian Constitution. The third chapter reads as “One Nation One Code”. It principally discusses how one common law code would cause justice and safeguard the basic rights of the citizens. The last chapter is titled “What after Uniform Civil Code?” which chiefly would enable one to visualize India after the enactment of the Code. This includes the purpose that would be served by the enactment of the very Code i.e. secure gender justice, gender equability and dignity of women. The conclusion would possibly highlight how far would this Code serve to be rendering justice to the citizens of the country post its enactment.

Key words: Uniform Civil Code, Constitution, Secularism, Nation, Code.

INTRODUCTION

In the famous devotional and spiritually epic book of Mahabharata, we all have read about Draupadi who was married to five brothers known as Pandavas. This practice is known as polyandry and one would really be startled to know that there still exist a few places in the Indian subcontinent where polyandry is practiced even today. People there allow one woman to marry all the brothers of a particular family. Apart from this, we are already aware of the triple talaq rule or legalization of polygamy under Muslim Law. The question arising here is where these women shall go to seek justice when they are victims of their own personal laws and cultural practices.

For the first instance, women activists put forward the demand for a Uniform Civil Code in the early twentieth century, with the objective of safeguarding women’s rights, equality and secularism in mind. Until Independence in 1947, a few reforms to the law were passed to improve women’s condition, especially Hindu widows. The Hindu Code Bill was passed by the Indian Parliament in 1956 amid significant opposition. Also, our first Prime Minister Pt. Jawaharlal Nehru attempted to bring it in force but due to heavy opposition, they had to agree with its addition to Part IV of the Constitution titled Directive Principles of State Policy (DPSP). Hence, Article 44 of the Indian Constitution mentions the State to attempt to formulate a Uniform Civil Code throughout India.

Indian judicial system is much advanced today but if practices like polyandry, polygamy, patriarchy in succession, child marriage, etc. keep on continuing then it would not be fair to say that our legal system is rendering justice to all its citizens. The question that arises before us is why cannot the nation adopt a uniform rule of law to run the country? It is not asked that each and everything should be alike but still having uniformity would help in equal protection of interests of the people.

The present ruling Government i.e. Bhartiya Janta Party (BJP) had promised in its manifesto for three major things- abolition of Article 370 of the Indian Constitution, resolution of Ayodhya temple dispute and enactment of Uniform Civil Code. On one hand, they have succeeded in bringing into force the prior two of them however, triumphing with the third one is really a challenging task for them to enforce and for the citizens to accept and obey it.

It seems like the framers of the Constitution realized that India would need a uniform law code some day and hence they included Article 44 in the Indian Constitution which reads as “The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India”[2]. Here, the present-day plot is that on March 23, 2020, a petition filed by social activist Danish Eqbal along with the five other petitions filed by different advocates and activists since last year concerning the same matter which had sought directions to the Centre to constitute a judicial commission or a high-level expert committee to draft the UCC within three months, while considering the best practices of all religions and sects, civil laws of developed countries and international conventions was to be heard.

CHAPTER-I

JUDICIAL EVALUATION AND JUDGMENTS TILL DATE

The simmering debate over the UCC hit the headlines in 1985 after the Supreme Court awarded maintenance to a 60-year-old divorced Muslim woman, Shah Bano.[3]The object behind securing a Uniform Civil Code is to bring all communities on the common platform on matters which are governed by various personal laws but they do not form any essence of any religion. For example- divorce[4], maintenance for a divorced wife[5]. Recently, Congress MP Jairam Ramesh said in Rajya Sabha that “By codification of different personal laws, one can arrive at certain universal principles that prioritize equity rather than the imposition of a Uniform Civil Code”[6].

In the year 1995, it was directed by the Supreme Court that the Prime Minister should take fresh look at Article 44 of the Constitution of India. The Union Government through the Secretary to Ministry of Law and Justice was directed by the Supreme Court, to file an affidavit by August 1995 to indicate the efforts made and steps taken by the Government for securing a Uniform Civil Code for the citizens of India[7]. In the year 2003, a bench of three judges of the Supreme Court that included- C.J. V.N. Khare, Justice S.B. Sinha and Dr. A.R. Lakshmanan, JJ.expressed regret for the non-enactment of the Uniform Civil Code[8].

A reference was made by the Ministry of Law and Justice to the Law Commission of India dated 17th June 2016 for the purpose of “examining the matters in relation to Uniform Civil Code”[9].

The Law Commission submitted a report in the month of August 2018. The report was on “Reform of Family Law”. Diversity of Indian culture was presented in the report. It also mentioned that how the weaker sections of the society must not be discriminated against in the process. This gave a hint that the commission emphasized the laws that are discriminatory rather than providing a Uniform Civil Code. The report also said that codification of all personal laws would suffice more positively than enacting Uniform Civil Code so that prejudices and stereotypes in each one of them would come to light and could be tested on the anvil of Fundamental Rights guaranteed by the Constitution.

In the year 2019, a Public Interest Litigation was filed for the Uniform Civil Code by Advocate Ashwini Kumar Upadhyay. However, this petition was opposed by the All India Muslim Personal Law Board on certain grounds. Then a new and fresh petition was filed by Advocate Abhinav Beri that aimed at seeking a direction to the Central Government for constituting a judicial commission or a high-level expert committee. The purpose of this should be to draft a Uniform Civil Code for securing equality, gender justice and dignity of women.

The SC reportedly described Goa as a “shining example” of a Uniform Civil Code while delivering a judgment in 2019 that legitimized the Portuguese Civil code of 1867, stating that the constitution founders were “hoping and anticipating” of a UCC for India, but the government had made no attempt yet. The SC further ruled that “it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India”.[10]

A petition was filed in October 2019 by Firoz Bakht Ahmed, chancellor of Maulana Azad National Urdu University. This petition demanded from the government to draft an Indian Civil Code in the spirit of Articles 14 and 44 of the Constitution within three months. The petitioner wanted it to be published on the government website for extensive public debate, discussion and feedback.

CHAPTER-II

RELATIONSHIP OF SECULARISM WITH UNIFORM CIVIL CODE

By the 42nd Amendment in the Constitution of India in the year 1976, the word “Secularism” was added in the Preamble of the Constitution of India. The term secularism means the principle of no discrimination on the basis of religion. Religion is considered as the matter of individual faith and it cannot be mixed up with secular activities. The State can regulate secular activities by enacting a law[11]. It is often argued that Uniform Civil Code is opposed to secularism. But the fact is not so. In reality, true secularism needs Uniform Civil Code.

These two terms-“Secularism” and “Uniform Civil Code” became very popular in the year 1978 because of the Shah Bano case. In this case, a petition was filed by a Muslim woman at a local court in Indore. She filed it against her husband Mohammad Ahmad Khan under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount for herself and her children. Her husband divorced her under Islamic Law. The defense statement given by him was that Shah Bano ceased to be his wife and thus she was not entitled to get maintenance for her except as prescribed under the Islamic law. The amount prescribed under the same was Rs.5400. However, the issue was again questioned in the Supreme Court of India and the case was decided in favour of Shah Bano using the Criminal Procedure Code instead of religion. Hence, it was after this very case that the terms “Secularism” and “Uniform Civil Code” became a debatable issue and the relationship between them is always questioned by many critics.

In the judgment given by Justice R.M. Sahai, he pronounced that, “Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedom are not autonomy but oppression. Therefore, a unified code is imperative, both for protection of the oppressed and for promotion of national unity and solidarity.”[12]

CHAPTER-III

ONE NATION ONE CODE

Dr. B.R. Ambedkar was in favour of bringing the Uniform Civil Code into the country. He was of the view that this code would be desirable in the future but for the initial acceptance, it was kept voluntary. He quoted the example of how the Shariat Act of 1937 came into undertaking by the Muslims. The law said that here is a Shariat law which should be applied to Mussalmans who wanted that he should be bound by the Shariat Act should go to an officer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors.[13]On contrary, tracts of Constituent Assembly debates reveal that there were members who doubted the potential of this code, and thus, the Assembly lacked consensus. This led to the decision of placing the Uniform Civil Code among the Directive Principles of State Policy rather than Fundamental Rights.

Looking at the present scenario in India, it seems that the present Government is also focusing on One Nation, One Implementation for example- One Nation, One Tax; One Nation, One Ration Card; One Nation, One Education Policy; One Nation, One Agricultural Market, etc. So, the question arises why not “One Nation, One Code”. Even after 73 years of independence, India has a common criminal code but there is no Uniform Civil Code. In India, Uniform Civil Code is followed in only one state that is Goa which was the result of Portuguese Colonization in Goa. Speaking of other countries like Israel, Japan, France and Russia, they are strong today due to their sense of unity that we have yet to develop and propagate. Virtually all countries have a common civil code or standardized civil or criminal law in that respect. The European nations and the US have secular legislation that applies equally and uniformly to all citizens regardless of their religion. Even all the Islamic countries follow a similar Code based on Shariat which applies to all the citizens.

Reading about the historical and present-day perspectives of various intellectuals about one nation one code, it is crystal clear that lack of consensus has been the main reason so far behind this code not to be brought into force. It is noteworthy that the liberal parts of society are demanding that this code be enforced in the political and social scenario, regulating individuals from all religions, castes and tribes and securing their fundamental and constitutional rights as guaranteed by the Constitution of India.

The Uniform Civil Code would remove the variety of marriage laws, simplify the legal structure of India, and make Indian society more homogeneous. It would de-link religious rule, a very beneficial aim to be accomplished in a secular and socialist model of society. It will establish a national identity and help to curb the country’s fissiparous tendencies. The Uniform Civil Code will have uniform rules that apply to all and are focused on social justice and gender equality.

CHAPTER-IV

WHAT AFTER UNIFORM CIVIL CODE?

Talking of equality, justice, secularism, protection of basic human rights, etc. is very facile but bringing them into action and implementing without any exception is an arduous task. The only way to cure and find a way out of such practices is the implementation of the Uniform Civil Code. This Code is the most debatable topic nowadays. It is obvious that few would agree for its ratification but a huge mass of the population would completely disagree and protest against it calling it to be irrational and against their customs and scriptures. It is really thoughtful to visualize an India with Uniform Civil Code.

After the validation of the Uniform Civil Code in India, situations would be much different than the present day. The implementation of the Uniform Civil Code will help in providing equal status to all the citizens of the country irrespective of their caste, creed, religion, gender etc. It will further help in national integration. It will mitigate the existing confusion and there will be efficient and effective administration of law. Besides it also seeks to put an end to gender inequality and also to reinforce the secular fabric.

It is often argued that the implementation of Uniform Civil Code will be difficult in India because Indian society is full of diversities. It is perceived by many communities that Uniform Civil Code is an encroachment to their right to freedom of religion[14].

According to the Committee on the Status of Women in India: “The continuance of various personal laws which accept discrimination between men and women violates the fundamental rights and the Preamble to the Constitution which promises to secure to all citizens “equality of status, and is against the spirit of natural integration”.[15] The Committee recommended the rapid application of the Constitutional Directive in Art 44 by implementing the Uniform Civil Code.

CONCLUSION

As each society or religious group has its own distinct law to regulate domestic ties, the law is collective. In so far as each individual carries his own aw wherever he goes in India, it is also personal. Family law is partially formal and partially non-statutory. Therefore, present-day family law is a maze. In India, there are no lex loci in matters of marriage, succession and family ties. Hence, it is rather complicated.

The only step taken forward in this direction was the codification of the Hindu law in spite of great protest, but the codification of Muslim law or enacting a Common Civil Code is a sensitive issue owing to its politicization. Enlightened Muslim opinion, however, is in favor of codification.

In principle, a uniform civil code will ensure equal status to all residents, regardless of the group to which they belong. Personal laws of various religions are widely divergent and there is no consistency in how issues like marriage, succession and adoption are treated for people belonging to different communities, which conflicts with Article 14 of the Constitution that guarantees equality before the law. Hence, in terms of personal laws, a UCC could contribute to consistency and gender equality and bring about much-required reforms.

Despite the growing bustle, the probability of the drafting and implementation in the near future of the Uniform Civil Code is uncertain, as minorities are the most likely to lose out of a badly drafted UCC (which in hurried legislation would likely be the case) and are sure to raise concerns.

BIBLIOGRAPHY


[1] INDIA CONST. art. 44.

[2] Id. at 1.

[3]PTI, Delhi High Court to hear plea for drafting Uniform Civil Code next week, The Hindu (Mar. 16, 2020, 07:52 PM), https://www.thehindu.com/news/national/high-court-to-hear-plea-for-drafting-uniform-civil-code-next-week/article31083002.ece.

[4]Jorden Diengeh v. Chopra, S.S. A.I.R. 1985 S.C. 935 (India).

[5] Ahmed Khan, Mohd. v. Shah Bano Begum, A.I.R. 1985 S.C. 945 (India).

[6] Special Correspondent, What has government done about Law Commission report on Uniform Civil Code: Jairam Ramesh, The Hindu (June 09, 2020, 12:44 PM), https://www.thehindu.com/news/national/what-has-government-done-about-law-commission-report-on-uniform-civil-code-jairam-ramesh/article31094808.ece.

[7]Sarla Mudgal v. Union of India, A.I.R. 1995 S.C.C. 635 (India).

[8]John Vallamatton v. Union of India, A.I.R. 2003 S.C. 2902 (India).

[9]Law Commission of India, Consultation Paper on Reform of Family Law, Ministry of Law and Justice, Government of India (Aug. 31, 2018, 03:03 PM).

[10] Jose Paulo Coutinho v. Maria LuizaValentina Pereira , Special Leave Petition (Civil), 7378 of 2010, Judgment date: Sept. 13, 2019).

[11]Justice Jeevan Reddy in S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918 (India).

[12] Supra note 5, at 3.

[13] 7 Lok Sabha, Constituent Assembly Debates, 1979.

[14] INDIA CONST. art. 25-28.

[15] Ministry of Education and Social Welfare, A Report of Committee on the Status of the Women in India, Government of India (Dec. 31, 1974).

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