ABSTRACT
This paper is about the most debated, crucial and controversial topic, The Uniform Civil Code enshrined in Article 44 of Constitution of India, its nature, need and extent of its implementation in India. India known for its diverse religion, culture and custom which has been practiced by the people of this country since ages, and because of this it is famous across the world. In India all religious communities in matters such as marriage, divorce, inheritance, adoption, succession and maintenance are governed by their respective personal laws which comprise religious and customary rules and these personal laws are inconsistent with each other. There is imperative need of Uniformity in Civil Code which would provide the equal status to all citizens irrespective of their religion, class, caste, gender etc. The Uniform Civil Code necessitates for the formulation and implementation of one law for India, which would be applicable and govern the personal matters of citizens irrespective of their religion.
This research paper is a detailed analysis of the constitutionality & the need of the Uniform Civil Code in India. The paper also attempts to answer the question that whether it should be implemented in country like India or not? Moreover, the paper discusses the challenges that creates hindrance in its implementation. And eventually the paper ends with some suggestion for effective implementation of the Uniform Civil Code.
KEYWORDS:
India, Personal Laws, Secularism, Uniform Civil Code,
INTRODUCTION:
The Constitution of India has enumerated certain Fundamental Rights and Directive Principles of state Policy in Part-III & Part-IV respectively. These part of Constitution of India prescribe the fundamental obligation of the states to its citizens and rights of the citizens to the State. Fundamental Rights are the basic human rights that are essential for overall development of human being and to live with grace and dignity. Any law made by state should be in conformity with the Directive Principles of State Policy. Though directive Principle of State Policy are neither enforceable nor Justiciable but these principles are indispensable for creating just and equitable society. They also ensure effective governance.
Uniform Civil Code is one of the DPSP which embodies in Article 44 of Constitution of India.
“The state shall endeavour to assure or establish the uniform Civil Code for the citizens for the whole of India”. [1] The inclusion of this principle in constitution was a progressive step taken by the constituent assembly.
It imposes a responsibility on state to secure for citizens a uniform civil code, means One Country One Law. In India there is uniformity in criminal law and there is even uniformity in civil laws for example: Contract Act, Transfer of property Act, corporate Law which applies to all citizens uniformly except matters like marriage, divorce, inheritance, adoption, succession and maintenance which are not governed under a single law but governed under the personal laws.
The provision for UCC has been incorporated in constitution since its day of enforcement but the desire for implementation of Uniform civil code is still unrealized. The reason for the same is that Uniform Civil Code comes under Directive Principles of State Policy which are just directions given to the state and it cannot be enforced in court of law. It suggests that though the framers of Indian constitution admitted that implementation of Uniform Civil Code would eliminate the discriminatory practices against women under the pretence of religion and it would also accelerate national integration still they didn’t make its implementation a constitutional mandate
The primary criticism of Uniform Civil Code is that it is considered as violation of Article 25 of Constitution which guarantees the freedom of conscience, and confers right to practice and profess religion. There is misperception or misbelief about the Uniform Civil Code that it would require citizens to follow laws that may not be in accordance with their religious beliefs, customs and practices.
This paper is a comprehensive analysis of the existing condition with regard of Uniform Civil Code and it attempts to ascertain whether the implementation of uniform Civil Code appropriate in country like India, consisting of people having diverse religion, custom & practices.
RESEARCH METHODOLOGY:
The research of this paper is based on several secondary sources in order to scrutinize the reasonableness of implementation of the Uniform civil code. Secondary sources of information which is collected from various sources such as articles, books, online legal database, bare acts etc. Landmark judgements of the Hon’ble Supreme Court have also been referred. The Uniformity in Civil Code in other countries has also been referred so as to come to a valid conclusion.
REVIEW OF LITERATURE:
Although the uniformity in civil matters is a requisite for good and effective governance. Considering the contradiction and conflicting views of constituent assembly members on UCC, middle course was taken and UCC kept under DPSP, which provides that the principles included in DPSP cannot be enforced but its obligatory on the part of state to pay due regard on these principles[2].
Though the implementation of Uniform Civil Code is not a constitutional mandate but to preserve and maintain the secular feature of our constitution it is imperative that the state should make deliberate efforts to keep the religion and secular matter separate. The framers of our constitution left it on the state to implement single set of laws and expressed that lead for implementation should come from concerned religion or denomination but whether the lead comes from religion group or not, national integrity demands that the state must act for codification of personal laws in one set of laws. Thus, Directive Principle of State Policy is not intended to restrict the state action but it is intended to make the state act in just and equitable manner.
The legislature is unenthusiastic in implementing the Uniform Civil Code because the hypersensitivity of the matter and the sentiments of persons linked with it. The judicial trends on execution of single set of laws pertaining to personal matters, over the years manifested that if the state has not made direct law for implementing the UCC, the judiciary may take initiative steps by interpreting the secular laws in such a way that helps in making it applicable.
Progressive steps taken by judiciary towards the implementation of Uniform Civil Code:
- John Vallamattom v. Union of India[3],
In this case the petitioner was a Christian priest, he challenged the constitutional validity of section 118 of the Indian Succession Act, 1925 on the ground that it discriminates Christians as it imposes unreasonable and arbitrary restrictions on them related to donation of their personal property for various religious or charitable purposes through will.
The Supreme Court, expressed “the disappointment on neglectful and careless approach of the state towards implementation of a UCC. It observed that a common civil code shall aid national integration by removing contradictions based on ideologies and held that absence of UCC allows violation of Fundamental Right to equality and right to life”.
- The Supreme court in Shabnam Hashmi v. Union of India[4], recognized the right to adoption even to Muslims under section 40 of Juvenile Justice Act 2000 and held, “The personal belief and faiths, though must be honoured, cannot dominate the operations of the provisions of an enabling statute”.
- In Sarla Mudgal V. Union of India[5]
In this case three Hindu males married to their Hindu wives apostatized themselves to Islam. They married for the second time with the Muslim girls (who were also apostatized from Hinduism to Islam). The Supreme Court categorically stated that “guarantee given under Article 25 & 26 are for essential religion and denomination practice and it cannot be claimed in secular matter, the court further held that marriage, divorce, succession and others akin to family matters comes under the purview of secular activities for which rights given under article 25 cannot be claimed. The court further held that the principle of justice, equity and good conscience require that there should be harmony between the two systems of law and emphasizes the implementation of the Uniform Civil Code to govern the family matters.”
- In Mohd. Ahmed Khan v. Shah Bano Begum[6]
The question raised in this case is whether the maintenance can be claimed by Muslim woman u/s 125 of Cr.P.C. The Supreme court held that maintenance can be claimed by parents, wives and children u/s 125 of Cr.P.C., the court further held that it is a secular provision and maintenance under this can be availed by all citizens irrespective of the religion to which they belong.
- In Lily Thomas & Ors. V. UOI[7]
In this case the judgement in Sarla Mudgal case sought to be reviewed and set aside on the ground that aforesaid judgement is contrary to the fundamental right as enshrined in article 21, 25 & 26 of Constitution of India.
The court rejected the contention and held that “verdict of this court in Sarla Mudgal case is not inconsistent with any of the right provided under part-III of constitution. The court further held that Freedom guaranteed under article 25 of constitution is such freedom which does not encroach upon a similar freedom of other person”.
Although the judiciary has taken progressive steps towards the implementation of UCC but the uniform law made by legislature has its own worth and it is for the state to take a step forward towards implementation of uniform civil Code.
METHOD:
- UNIFORM CIVIL CODE AND SECULARISM:
India is a Sovereign, secular, republic, socialist, and democratic country. Secularism is the principle that makes a state impartial or unbiased in matter of religion. The term Secular was inserted in Preamble of Indian constitution by 42nd Constitutional amendment Act,1976. It states that India is a secular country without any state religion. It accepts and respects all, religions and it has no religion of its own.
A uniform Civil code is a prerequisite for a developed country and it is imperative for national integration and achieving unity in diversity. The radical object and the principle behind the Uniform Civil Code is to establish a set of laws which would govern the personal matters of all citizens within the country irrespective of their religion or denomination and this is the core of secularism.
The Hon’ble Supreme Court in S.R. Bommai v. UOI[8], held that “secularism is one of the basic features of the constitution. Secularism asserts that all religions must be treated equally. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith or belief of a person is immaterial. In matters of State, religion has no place.”
Thus, secularism demands homogeneity in personal laws across the country.
- UNIFORM CIVIL CODE AND PERSONAL LAWS:
India is a nation of diverse religions, denominations and communities. Despite of this diversity India well known for its “unity in diversity”. It is a unique blend of various religions such as Hindus, Muslims, Christian, Sikhs, Buddhists, Jains and Parsis these religions follow their own personal laws which are considerably dissimilar to each other. The purpose of making the law is not to force something on the society, but to regulate the social, political, cultural behaviour of the society for better functioning and working of the society. There exists a great deal of dissimilarity between personal laws. Polygamy is prohibited under Hindu law but not in Muslim law. Hindu law permits adoption but adoption is not allowed under Muslim law. Moreover, maintenance can be claimed by Muslim Women only till the end of iddat period. But, CrPC does not acknowledge the concept of iddat period and maintenance even goes beyond the iddat period under sec 125 of Cr.P.C.
The Hon’ble Supreme Court in Shayara Bano v. UOI[9] held that “the act of Talaq-e-biddat is not an admissible form of talaq, as the court observed that it’s not an essential part of the Islamic religion. Further the court declared the triple talaq as unconstitutional and directed the legislature to take measure against it in order to stop the abuse against women.”
Before 2005, The Hindu Succession Act had numerous drawbacks for women coparceners, and widows. Also, if registration of marriage is made compulsory, practices such as forced and child marriages can be eliminated.
Thus, in the wake of apparent conflict in personal laws of different religion there is exigency of implementing uniform Civil code which will ensure gender equality and women empowerment.
- CHALLENGES IN IMPLEMENTING UNIFORM CIVIL CODE:
The incorporation of single set of rules which would be blend of all personal laws picking up the best elements from them, governs the personal matters of the citizens uniformly such as marriage, adoption, inheritance, divorce, succession and maintenance would result in national integration, and social harmony but there is myth or delusion around the concept of UCC, which are as follows:
1. Constitutional challenge: In India there is plethora of religion and denominations and communities. Many communities particularly minority communities misunderstood UCC as an encroachment on their fundamental right guaranteed under article 25 and article 29 of constitution. They fear that a common set of laws require them to follow rules which will be influenced by majority religion group and it may neglect their religious beliefs and traditions.
2. Practical challenges: There is also practical challenge that create hinderance in implementation of UCC. The formulation of set of rules that will govern all communities uniformly, the need of bring harmony amongst wide range of laws & practices and to avoid the possibility of conflict with other provision of constitution is a tedious task. UCC requires a thorough review of all the existing personal laws in order to ensure that a single law should be blend of all personal laws. This review may take several years to arrive at a comprehensive and acceptable UCC.
3. Political challenges: The government should be sensitive towards the religious sentiments or susceptibility and it also be unbiased while formulating single law for both majority and minority communities. If it uses for political gain, it may result communal violence.
- UNIFORM CIVIL CODE IN GOA:
Goa is the only state of India which has adopted Uniform Civil Code. It has common set of laws names as Goa’s family law. In Goa all citizens belonging to different religion and denomination are bound and governed under the same set of laws in the matters associated with their marriage, adoption, divorce and succession.
The Goa civil code is mainly established on Portuguese code of 1867, which was initiated in Goa in 1870. The civil code was preserved in Goa after its merger with Indian Union in 1961. In 1981, Indian government authorized the personal law committee to determine whether the non-uniform laws applicable in the India could be extended to Goa. But it was categorically resisted by Muslim Youth welfare Association & Goa Muslim Women’s Association.
DIVERGENCE BETWWEN GOA CIVIL CODE AND INDIAN LAWS:
1. In Goa marriage is a contract between two persons of different sex, therefore the registration of marriage is a mandate Goan code so that if there is dispute it can be resolved by law. The property and wealth owned by each spouse are equally divided between the spouses during the course of marriage and in case of divorce each spouse is entitled to half share of property. The code also permits antenuptial agreements which may state a different ratio of distribution of assets between spouse in the case of divorce. A married person cannot alienate the property acquired after marriage without the consent of his/her spouse.
2. In Goa, Muslim men who got their marriage registered do not have the right to polygamy in Goa. Also, there is no provision for Triple Talaq in Goa.
3. The allocation of Property amongst heirs is equal. Both male and female heirs have the right to inherit the property without and distinction. Further, the parents cannot absolutely disinherit their children. It is mandatory in Goa civil code that at least half of the parent’s property has to be passed on children.
Goa has incorporated common civil code and not uniform civil code, uniformity in application of laws to all citizens regardless of their religion is the prerequisite of the UCC. But the family laws of Goa have a great deal of difference from UCC. For example:
(i) Bigamy is forbidden by Goa civil code for all religion and denomination except the Hindus. Hindus are kept in a different sphere to which this prohibition does not extend. Under specific circumstances mentioned in the Codes of Usages and Customs of Gentile Hindus of Goa, the Hindu men of Goa have the right to bigamy while the person belonging to other religion does not have any such right. It is apparently not compatible with the UCC.
(ii) There is also inconsistency in provision pertaining to adoption and illegitimate children.
(iii) The Roman Catholics marrying in the church are excluded from divorce provision under the civil law. For any other religion divorce can be taken on any valid grounds but to the point of exception for Hindus, divorce is permitted only on the ground of adultery by the wife.
It can be concluded that the Goa has adopted common civil code and not uniform civil code. The code incorporated in Goa has uniformity to some extent but at the same time it has certain exceptions with respect to applicability and these exceptions are based on religion. Goa has not adopted UCC strictly. Hence to bring uniformity in personal matters India still has a very long way to go.
SUGGESTION:
From the above discussion it is clear that Uniform Civil Code is an absolute necessity. And in order to implement it in an effective and efficient manner and also to maintain the spirit of uniformity of laws following suggestion can be made:
- The Uniform Civil Code should be drafted keeping in mind the best interest of all the religions including minority community. Where the code represents all sections of the country and it does not favour to any particular religion nor it neglect or overlook any religion the effective implementation can be ensured.
- The Uniform Civil Code must enhance harmony amongst various religions and it must reduce tension or conflicts between different religious or communities within the country.
- A committee should be constituted to maintain uniformity and to ensure that there must not be any Uniform Civil law which hurts or likely to hurt the religious susceptibility or sentiments of any particular community or religion.
- The matter is one of the most hypersensitive matters, it desirable that the initiative for its implementation comes from the concerned religious group.
- It is high time to shed light on the precise concept of Uniform Civil Code. It can be implemented only when people of this country will understand that religion and law are two different concepts altogether and it should not be integrated. This can be done through education and various awareness programmes organised by government.
- The government must undertake some initiatives to remove the fallacy and misperception associated with the Uniform Civil Code and must disseminate the intention and object of uniform civil code, which is that, it does not threaten the minority religion but it aims to treat each human being with dignity which personal laws have so far failed to do.
CONCLUSION:
At the end, it can be concluded that UCC is the core of secularism, which treats all the citizens equally with dignity and it firmly prohibits any discriminatory practices against women in the guise of religion. The implementation of UCC in India is a challenging process but it is not impossible, since it has been proved by passing of certain secular legislation such as Special Marriage Act. The main problem in implementing the UCC is illiteracy and lack of knowledge about this. The main concern of UCC is to remove social difference that exist in the society and continuously raising due to religion. The state should attempt to remove this ambiguity and vagueness. The incorporation of single set of laws harmonise diverse cultural groups across the country, would avoid overlapping of provisions of personal laws, simplified the Indian legal System and country will emerge with the new source and power. In this sense UCC is the need of the hour.
NAME: NEHA ARYA
COLLEGE: LAW CENTRE-II, FACULTY OF LAW, UNIVERSITY OF DELHI
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[1] The Constitution of India. Art. 44
[2] The constitution of India. Art.37
[3] John Vallamattom v. Union of India, AIR 2003 SC 2902
[4] Shabnam Hashmi v. Union of India, 2014 SC; Writ Petition (Civil) No. 470 of 2005
[5] Sarla Mudgal V. Union of India (1995)3 SCC 635
[6] Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556
[7] Lily Thomas & Ors. V. UOI (2000) 6 SCC 224
[8] S.R. Bommai v. UOI, 1994 AIR 1918
[9] Shayara Bano v. UOI, AIR 2017 9 SCC 1 (SC)
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