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Scanning “Uniform Civil Code”: Will it ensure uniformity- All about it

Uniform Civil Code

Shreya Gupta– NLU, Sonepat Law Student & Vishakha Shakya– NLU, Lucknow Law Student have written this Article on the topic- Scanning “Uniform Civil Code”: Will it ensure uniformity The Socio-legal perspective of UCC and the way ahead.


Introduction

Since the 1990s, India has turned into a global force. It is the largest democracy in the world and the second-most populous country. It has a compelling military, and a significant cultural impact, and its economy is growing exponentially and powerful. With so many lingual, racial, and societal identities, India is a very diverse country. It is well known that India is home to a diverse range of ethnicities and linguistics. Its own set of laws has ruled people of many faiths since the dawn of time. As a result, different classes of persons receive further treatment in their statutes.

Every respective religion has different personal laws that apply to different sects of society. An individual’s regulations address issues such as succession, marriage, divorce, inheritance, adoption, maintenance, and guardianship. Some of these challenges arise because it is difficult to provide justice when different situations require different types of judgments. There are also challenges posed by the need to consider and reconcile the various personal laws of different communities in India.

The part of the distribution of justice that reminds Uniform in its application confronts much trouble. Therefore, substantial efforts towards national consolidation were taken in the shape of the idea of a Uniform Civil Code, which was first seriously mooted in the constituent Assembly in 1947.

The Indian constitution states in Article 44[1], Directive Principles of State Policy, that the State must strive to ensure a uniform civil code throughout the country for its citizens. Indians have not been able to reach the level of standardization required to embrace and adopt the constitutional mandate for at least 60 years.

Historical perspective of UCC

The debate about legalizing UCC traces back even before the partition time period. As the newborn republic struggled to construct a constitution by which to govern its population, democratic ideals and values such as justice, equality, and pluralism influenced the discussions in the Constituent Assembly. The sub-committee was formulated on Fundamental Rights, which was convened between February and April 1947, started the discussion.

People Views

Extreme Hindu nationalists, as well as Modernists, demanded a uniform civil code. The arguments on the UCC in the Constituent Assembly are intriguing to read through. The concept of UCC was firmly denied by Hindu Mahasabha leaders, orthodox Congressmen, and Muslims, all of whom were men. They banded together to defend personal laws based on religious affiliations. The UCC was seen as an attack on Hindu civilization and a threat to a religious minority’s identity. The UCC faced growing opposition both inside and outside the Assembly, causing Nehru to abandon the proposal. This decision was much to the dismay of the All-India Women’s Conference and Ambedkar.

The significance of uniformity in Indian laws relating to crimes, evidence, and contracts was stressed in the Lexi loci report of 1840. However, it was agreed that Hindus and Muslims should be ruled by their laws, except for crimes, contracts, and evidence.

B N Rau Committee to codify Hindu law

In 1941, the government formed the B N Rau Committee to codify Hindu law due to an increase in legislation dealing with personal issues post-British rule was ended[2]. The Hindu Law Committee was tasked with determining whether or not common Hindu codified laws were necessary[3]. The committee advocated, according to Vedas, a codified Hindu rule to grant women equal rights. The 1937 Act was critically inspected, and the committee opined that the Hindus should have a civil law of marriage and succession.

Further, the UCC was enshrined in the Constitution as Article 44, one of the DPSPs. Despite the fact that Indian women continue to face discrimination, Hindu women with family problems now have more legal rights. This is because of the progressive rules passed by Parliament in 1954-55. Due to conservative opposition to improvements in Muslim personal laws, Muslim women were denied equivalent safeguards.

Objective of UCC

The primary objective of the UCC is to address the gender parity problem prevailing in India. As Dr B. R. Ambedkar also envisaged that UCC’s objective is to provide protection to vulnerable sections of society like women, children, and religious minorities. This is because it promotes equality and national integration. Prior to the implementation of the UCC, the simplification of the laws of different faiths is required.

Implementation of the Uniform Civil Code:

Article 44 [4]of the Indian constitution states that:

“The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

It primarily means that it is the duty of the State to ensure there are equal and similar laws for all citizens throughout the nation. Also, Uniform Civil Code is a part of the Directive Principles of State Policy. Since it is known that Directive Principles of State policy are not enforceable, thus, it can be inferred that UCC is per se not enforceable. But here lies one ambiguity, no fixed period has been put by the makers of our constitution. Also, the government is not taking any steps yet to implement it because it is not mandated anywhere to implement those on an urgent basis.

Article 44 is prudently phrased, requiring the State to “endeavour” rather than impose a uniform civil code. It is necessary to overlook the people’s desire to carry out the essence of Article 44. Following the other provisions of the constitution, the actual purpose of this article is to develop a homogeneous society that is pure and free of religious and caste divisions.

UCC- Boon or Bane?

Similar to a coin which has two facets, everything has its own advantages and disadvantages and so is the case with Uniform Civil Code.

Merits:
Equality amongst citizens:

India is a secular and democratic republic that requires a standard code to accommodate the diverse needs of its citizens. This is because, irrespective of religion, class, gender, caste, etc., there should be one code that governs all these aspects of human life. However, there exist various personal laws to complete that demand. This will promote equality amongst citizens as one code will govern every citizen irrespective of other scenarios.

Foster gender parity:

It has been observed that various personal laws of different religions tend to be more discriminatory towards women in particular. Men have been granted the upper Dias in matters like succession, inheritance, divorce etc. However, if such a code is brought, it will bring men and women both on equal footing.

Promote national integration:

All Indians are so far equal in the eyes of the law, as all criminal and civil laws (excluding personal laws) are the same. All citizens will be subject to the same set of laws once the Uniform Civil Code is implemented. There will be no opportunity for concerns of discrimination, concessions, or unique benefits enjoyed by a specific community based on their personal religious laws to be politicized.

To address various personal laws problem:

In all religions, existing personal laws are primarily founded on upper-class patriarchal society beliefs. UCC is typically requested by women who are victims as an alternative to existing legal codes. However, patriarchal orthodox individuals continue to believe that reforming personal laws will jeopardize their holiness and reject it vehemently.

Meeting the ambitions of the younger generation.

With 55 per cent of the population under the age of 25, modern India is a very different society. Universal values of equality, humanity, and modernism define their social behaviour and aim that they want to achieve. Their desire to lose their religious identities must be seriously considered to use their potential for nation-building fully.

Demerits:
Violating a few provisions of the constitution:

It is clear that Article 25-28 of the Indian constitution paves the way for everyone to follow their religion and culture. Article 25[5] of the Constitution provides for the freedom to practice and propagate one’s religion without violating the rights of other individuals. 

The vast array of interests:

Considering India is a diverse nation, there are many religious people following their culture and religion, so it seems a bit daunting. It is a famous saying in India that after every kilometre, the faith and practices of people change. Although if implemented, there will be far fewer controversies related to vast arrays of religions and so on. However, initially, it is a formidable task.

Jeopardizing religion:

In order to draft UCC, a disturbance with personal laws of various religions is required. Consequently, this may lead to animosity and tension between people of various faiths.

Changing age-old traditions:

Making the code requires changing in-laws that have been followed by people for ages. Such a code that requires making law or code that encapsulates spheres like marriage, divorce, inheritance, adoption, conversion, succession etc., requires the proper understanding of the laws existing individually in their respective religions.

Sensitive issue:

In its fundamental essence, code like this should be created by openly borrowing various personal laws, gradually changing each, issuing court pronouncements ensuring equality between the sexes, and adopting extensive understandings of marriage, maintenance, adoption, and succession while recognizing the benefits that one community may receive from the others as well. This project will be time and human-resource intensive. When dealing with minority communities, the government should really be sympathetic and impartial. Otherwise, it could result in communal violence that is even more destructive.

Challenges surrounding Uniform Civil Code:

The following are some of the issues that revolve around UCC:

Constitutional challenges

Freedom of religion gets into a squabble with the right to equality. UCC is in direct dispute with fundamental rights that are guaranteed under Art. 25 and 26. Both Article 25 (the right freely to profess, practice and propagate religion) and Article 26[6] (freedom to manage religious affairs) are, however, “subject to public order, morality and health” and to the values that are provided in all other fundamental rights such as equality and social justice.

Article 29[7] defines the right to conserve the unique culture prevailing in that region. These rights also conflict with the equality before the law enshrined under articles 14 and 15.

Social-political challenges

The most serious problem is people’s ignorance about UCC’s objectives. This is caused by a lack of awareness, false information, irrational religious beliefs, and other factors.

Need for a Uniform civil code for women’s upliftment

The prevalent practices that we see in society such as triple talaq and polygamy have direct repercussions on the rights intersecting the horizon of life and dignity of a woman. When it stands on the forum of separation, sacraments, and inheritance, women face eminent challenges and a heck of many struggles. Polygamy, desertion, and triple talaq are certain references that can be taken into account to evaluate it. Female in India is only guaranteed equality in the statute, & justice can only be met if they acquire equal rights. With regard to the privileges available to men and destitution in the sphere of apparent rights for women, women’s status within their families is unfortunately disgraceful.

Shah Bano case

Moreover, hence, due to the famous Shah Bano case of 1985, UCC has been a hot topic of discussion. When the question of making specific laws comes up to the deformed umbrella under which the law is exercised, the argument escalates. These laws should not infringe on the fundamental right to perform religious functions. Following that, the discussion turned to Muslim Personal Law, which is governed partly by Sharia law and allows for unilateral divorce and polygamy. The formulation of the Uniform Civil Code faces opposition apparently from Muslims, the Left wing of India and the orthodox families of Hindus as a threat to religious freedom.

A uniform civil code, if adopted, will provide the foundation for women to conquer many societal problems such as the bigamy and dowry systems, which make women feel inferior and degraded. Furthermore, in reality, it is well acknowledged that gender inequality is incorporated into the personal laws of communities. Taking into account the social and economic conditions in which they have developed, this has become one of the main reasons why reform of personal law or the implementation of UCC at its earliest is crucial not only to render gender equality and justice per se.

Judicial developments surrounding UCC:

1. Sarla Mudgal case[8]:

It was held in this case by the Apex court that India needs urgent implementation of the UCC. It was observed by the Supreme Court that the code should be made on the lines of the Hindu Code to ensure uniformity among citizens.

2. Shah Bano case[9]:

In this case law, the issue of maintenance was dealt with by the Supreme Court after Shah Bano’s husband pronounced triple talaq against her. While deciding the fate of the case, Chief Justice YV Chandrachud was of the opinion that the Parliament should work to outline a standard code. He believed that it will work as equipment that will catalyze national harmony and equality amongst the citizens of India.

3. Danish Eqbal v UOI and Ors[10]:

In advocating for implementing a UCC, Eqbal stated that gender equality requires uniformity in the age of marriage, grounds for divorce, maintenance and alimony, succession, adoption, and other areas. He also believed that a Uniform Code in the spirit of Article 44 is required to achieve these goals. In support of the Uniform Civil Code, Eqbal claims that it will “control fissiparous inclinations and foster brotherhood, unity, and national integration.”

4. John Vallamattom v. Union of India Case[11]

In 1997, a priest from Kerala named John Vallamatton filed a writ suit, alleging that Section 118 of the Indian Succession Act was discriminatory against Christians. The suit claimed that the section placed unreasonable restrictions on the willed donation of property for religious or charitable purposes by Christians. The section was declared illegal by a court consisting of Chief Justice of India V.V Khare, Justice S.B Sinha, and Justice A.R. Lakshmanan.

Further, Khare stated that,

“Article 44 provides that the State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India. It is a matter of great regret that Article 44 of the Constitution has not been effective. Parliament is still to step in for framing a common civil code in the country. A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies.”

Suggestions:

  1. The advice of its primary stakeholders from different sects and religions of society is a sensitive matter. Though it is a gruesome process involving a lot of human labour, the unanimous decision prevails.
  2. The government should take the initiative of taking out the best component of different personal laws from different religions of the nation. Thus, in this way, the government would do justice to the various laws of different religions and will be able to have a single code.
  3. While drafting UCC, it should be kept in mind to not hurt the the sentiments of any religion by violating any provisions of their respective religions.
  4. As we all know, change is a permanent form of nature which means the law is a dynamic field that requires specific changes from time to time. Those changes should be welcome with hands open. The government of India need not impose any such code on the citizens. However, such codes should be voluntarily accepted by them.
  5. The codification and implementation of UCC may not result in targeted gender and religious equality. Hence, some loopholes should be addressed at a later stage.
  6. Major awareness activities are required to change present personal laws, which the communities must lead.
  7. Existing institutions must be reformed, liberalized, and strengthened for this shift. For all women of all religions, sincere efforts for women’s empowerment must be made.
  8. Modern India’s identity is plural democracy. As a result, for a thriving Indian democracy, efforts should be centred on harmony in multiplicity rather than complete homogeneity.

Way ahead for UCC:

Given paramount importance due to the equality that India today seeks, it is necessary to keep in mind that this code somewhere requires that citizens be ready for change. UCC is not about religion, faiths, customs etc. However, it also revolves around how India will be able to accommodate its vast diversity. While it is also necessary while drafting such a code, there shall be no discrimination made concerning gender.

Since the day our constitution was drafted, Article 44 has remained one of the less significant parts of it, which today needs to be one of the most significant parts of the constitution. With time, the necessity for a Common Civil Code for all citizens residing in India, irrespective of religion, has developed, ensuring the protection of their natural and constitutional rights.

The introduction of UCC can also improve secularism and national integrity. It can be given effect in a gradual process. The UCC must strike a balance between individual religious belief systems and safeguarding fundamental rights. It should be a right and proper code in the eyes of an ordinarily prudent man, without regard for religious or political factors.

The current reforms to personal law require significant sensitization efforts, which local communities must first initiate. Modernization, democratization, and strengthening of existing institutions are necessary for this transition. The unique identity of India is that it is a plural democracy. Hence, the focus of policy initiatives should be on creating harmony in plurality rather than uniformity to flourish Indian democracy.

Conclusion:

It would be right to reach the conclusion that a democratic and secular nation like India needs indispensable laws like Uniform Civil Code. However, it is not required to impose any Code on a population that is not ready yet to change.

  1. Only improved literacy levels, understanding of critical socio-political issues and reasonable debates, and increasing social and religious mobility would allow the Uniform Civil Code to be implemented appropriately.
  2. The end goal of revising the Uniform Civil Code should be to achieve equality amongst citizens, dignity, national integration and justice for both genders alike.

Only an evolutionary process may create a UCC that respects India’s rich legal tradition, of which all personal laws are similar elements. As a result, for a thriving Indian democracy, efforts should be made around harmony in multiplicity rather than blanket conformity. The plural democracy is modern India’s identity.


[1] INDIA CONST, art 44.

[2] Business Standard, https://www.business-standard.com/ (last visited on March 20, 2022)

[4] INDIA CONST. art. 44.

[5] INDIA CONST. art. 25.

[6] INDIA CONST. art. 26.

[7] INDIA CONST. art. 29.

[8] Smt. Sarla Mudgal, President, … v. Union of India & Ors, AIR 1995 SC 1531

[9] Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945

[10] Danish Eqbals v. UOI & Ors., (2020)

[11] John Vallamattom & Anr vs Union of India, (2003)

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