ABSTRACT
The term Uniform civil code is a huge step forward in bringing the whole country together. This code means every person is treated in an equal way. In no way it restricts or imprisons people’s freedom. There is a provision in Article 44 of the Constitution of India, There is a fourth chapter in it name Directive Principle of State Policy that makes way for a condition for Uniform civil code in the complete topographical territorial dominion of India.According to Article 44 allude to The state shall endeavour to gaurded the citizen a Uniform civil code all across the territory of India.The appeal to replace the religious bodies and customary personal laws with the escalating uniform civil code has been there since the pre-independence era and persists even today. Along with it the convolution and complication also endure seeable from the days of constituent assembly debates to the present. It is often disscussed that several features of the personal laws underprivileged women and are a hindrance to the realisation of national combination. The laws need to be separate from religion, and tangible steps toward complete uniformity in civil laws are straight away required to be taken like we have in the criminal laws. On the other side of the coin its adversary considers it to be an assail on the right to freedom of religion in general and personal and customary laws in particular.
KEYWORDS: Uniform Civil Code, One nation One law, Gender justice, Law, Marriage, Divorce, Society, Harmonizing equality
INTRODUCTION
Uniform Civil Code is clearly alluded to Article 44 of the Constitution of India, in the fourth chapter in its name Directive Principle of State Policy. Article 44 states that “The State shall endeavour to secure the citizens a Uniform Civil Code throughout the territory of India”. This code makes reference to a common law that should be applied to all religious bodies such as Hindu, Muslim, Marriage, Divorce, Legacy, Transfer of property, Maintenance, Adoption, etc.
This code basically has an objective to supersede all the different personal laws that right now control personal issues in the different bodies. This code essentially line up to encourage social solidarity, gender non-discrimination and treating every religion equally and provide equal facility by abolish anguished legal system based on different religion and bodies. This code is a draft in India to put together and apply on personal laws of the citizens. In the October Of 1840 The Lex loci report accented the essentiality and need of UCC in Indian laws related to unlawful act, proof and commitment. The public circle is controlled by British and Anglo-Indian law in relation of offence, national relation, laws of commitment and proof. The Muslim personal law was not rigorous enforced as balanced to the Hindu law .It had no consistency in its application at the courts and was oppressively constricted because of administrative cause of action. Uniform civil code conduct to the traditional law, that was frequently more prejudicial against women, to be strong matches over it. Uniform civil code is basically for controlling all laws just like Muslims, Hindus, marriage, divorce, society, gender justice, maintenance in one plate form because of this we can say this by another sentence One nation One law.
RESERAHC METHODOLOGY
Uniform Civil Code is meant to replace various laws currently applicable to different communities which are inconsistent with each other. These laws include the Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Indian Divorce Act, Parsi Marriage and Divorce Act. And the secondary sources like newspapers and websites used for the research. Uniform Civil Code is defined in the Indian Constitution under Article 44 of DPSP. It states that it is the duty of the state to secure for the citizens a Uniform Civil Code all through the territory of India. So, the first source for the deep analysis is the Constitution of India. In other words, we can say that it means One country, One rule. During the drafting of the constitution of India, Leading leaders like Jawaharlal Nehru and Dr B.R Ambedkar pushed for a uniform civil code.
REVIEW OF LITERATURE
The law is communal insofar as each communistic or devout body has its own different law to administer state association. It is also personal insofar as each person carries his keep law wherever he goes in India. The family law is partly statutory and partly common law. The present-day family law is thus a tangle. There is no lex loci in India in matters of marriage, succession and state relations. Consequently, it is very confusing. With a view to attain consistency of law, it’s treating every religion equally and providing equal facility and making it equitable and non-discriminatory, the Constitution contains Article 44 of the Directive Principles of State Policy which runs as follows; “The State shall attempt to inviolable for the citizens a uniform civil code throughout the conduct oneself towards of India.”
OBJECTIVES OF UNIFORM CIVIL CODE
The notion of Uniform civil code scope to auxiliary personalised laws based on customs and traditions or normative individualism of different religious societies with a combined mutual set of decrees controlling divorce, marriage, legacy, rituals and other particular staples. The objective behind this establishment is to have a common law for all the citizens irrespective of their marriage ceremony, divorce, legacy, land property etc. Also forbid marriage with more than one person, Bigamy. And promoting nationalistic passion through unity. The attentive comprehension of Article 44, it is also main cognizance that Article 44 is not enforceable by court, as we can see it is a Directive Principle of State Policy. It is amenability of state to endeavour towards the enactment of Uniform civil code but the real enactment of this code is subject to governmental resolution and agreement among various participator.
Uniform Civil Code appeard as a critical topic of interest in the Indian government in the Shah Bano case in 1985.At that time the debate is mainly concentrated towards the Muslim Law on the question of making laws applicable to all citizens without shortening the fundamental right to practise religious functions. In 2024 on 7th of February, The Legislative Assembly of Uttarakhand passed The Uniform Civil Code of Uttarakhand Act, 2024 because of that Uttarakhand is the first state in India to have a law on the Uniform Civil Code. The CM of Uttarakhand Pushkar Singh Dhami describes it as a “historic moment” for the country.
CONSTITUTIONAL ASPECT OF THE UNIFORM CIVIL CODE
Article 44 of the Constitution of India requires the State to endeavour to make for its citizens a Common Civil Code throughout India.The secular hustle such as legacy covered by personal laws should be devided from religion. A uniform ordinance thus prepared and made relevant to all would on the contradictory promote national harmony. It was signalised at that time that firstly as Common Civil Code would contravene the fundamental right of freedom of religion as mentioned in Article 25 and secondly, it would amount to a dictatorship to the minority. If you look at the countries in Europe which have a civil code, everyone who goes there from any part of the world and every minority has the Civil Code. It is not felt to be oppressive to the minority .Our first concern is to assemble alliance unity in this country. The first objection is misinterpreted because secular activity related with religious practice is excused from this assurity and since personal laws deal with secular activities they fail within the monetary power of the state. Socialism reproduces prejudice at two levels: First one between people of different religions and Second one and between the two sexes. This dangerous and ruinous effect should be done away with possibly by introducing a Uniform Civil Code. For women who comprise almost half the population of India, the Uniform Civil Code provides equality and justice in courts of ordinance regardless of their religion in matters concerning marriage, divorce, maintenance,right to custody of children , inheritance rights, adoption etc.
Regarding the second point, nowhere in advanced Muslim countries has the personal law of each minority been recognized as inviolable as to prevent the rule of conduct of a civil code. We think we have got a national alliance but there are many reasons which still offer real dangers to our national unification.
MERITS OF UNIFORM CIVIL CODE:
If a Common Civil Code is enacted and enforced It will help and expedite accommodation to the whole country .Intersecting provisions of law could be ignored. Legal proceedings due to the personal law world are reducing. It will de-link law from religion which is a very desirable objective to achieve in a secular and socialist pattern of society. It will create a national identity and will help in containing fissiparous tendencies in the country .The uniform civil code will contain uniform provisions applicable to every one and based on social justice and gender equality in family matters.
Sense of oneness and the national spirit would be roused, and The country would emerge with new force and power to face any odds, finally defeating the communal and the divisionist forces.India has set before itself the ideal of a secular society and in that context achievement of a uniform civil code becomes all the more desirable such a code will do away with diversity in matrimonial laws, simplify the Indian legal system and make Indian society more homogeneous.
According to the Committee on the Status of Women in India The regularity of many personal laws which accept favouritism between men and women infringe 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”. The Committee recommended speedy fulfilment of the constitutional directive in Article 44 by embracing a Uniform Civil Code.
JURISDIVE VIEW:
The Supreme Court for the first time directed the Parliament to frame a Uniform Civil Code in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum. In this case, a parsimonious Muslim woman claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq from him. The Supreme Court held that the Muslim woman has a right to get maintenance from her husband under Section 125. The Court also held that Article 44 of the Constitution has remained a dead letter. The then Chief Justice of India Y. V. Chandrachud observed that,
“A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”
After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of criminal Procedure. The explanation given for implementing this Act was that the Supreme Court had merely made an observation for enactment of Uniform Civil Code not binding on the government and that there should be no interference with the personal laws unless the demand comes from within.
In Mary Roy v. State of Kerala the discussion before the Supreme Court was that definite equipping of the Travancore Christian Succession Act were unconstitutional under Article 14 Under these provisions on the death of a husband having made no legally valid will before death his widow was entitled to have only a life interest conditional at her death and his daughter. It was also discussed that the Travancore Act had been superseded by the Indian Succession Act, 1925. The Supreme Court ignored inspect that whether gender inequality in matters of succession and inheritance violated under article 14 but notwithstanding govern that the Travancore Act had been superseded by the Indian Succession Act Mary Roy has been characterised as a significant decision in the direction of making sure gender equality in the matter of consecution.
Eventually the Supreme Court has issued a directive to the Union of India in Sarla Mudgal v. Union of India to attempt to set in a frame of a Uniform Civil Code and report to it by August, 1996 the steps lay hold of The Supreme Court suggested that: “Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two- nation or three “nation theory and that in the Indian Republic there was to be only one nation- and no community could claim to remain a separate entity on the basis of religion”.
It is to be noted what the Supreme Court expressed in the Lily Thomas case. The Supreme Court held that the directives as detailed in Part fourth of the Constitution that is Directive Principles of State Policy Article 44 are not enforceable in courts as they do not create any justiciable rights in favouritism of any person. Therefore to diminish all the foreboding it is restated that the Supreme Court had not issued any directions for the codification of a Common Civil Code.The Supreme Court has no power to give directions for enforcement of the Directive Principles.
The Supreme Court’s latest reminder to the government of its Constitutional accountability to enact a Uniform Civil Code came in July 2003 when a Christian priest knocked the doors of the Court challenging the Constitutional validity of Section 118 of the Indian Succession Act. The priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating the Section 118 of The Indian Succession Act was intolerance against the Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purpose by will. The bench is composed of Chief justice of India V.N.Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck down the Section declaring it to be unconstitutional. Chief justice Khare stated that,
“We would like to State 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 been given effect to. 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”.
The apex court has on several instances directed the government to realise the Directive Principle enshrined in our Constitution and the urgency to do so can be inferred from the same.
DIFFERENCE BETWEEN SECULARISM AND UNIFORM CIVIL CODE:
The root cause of controversy revolving around Uniform Civil Code has been secularism and the freedom of religion recited in the Constitution of India. A State is only concerned with the relation between man and man. It is not concerned with the relation of man with God. It does not mean allowing all religions to be practised. It means that religion should not interfere with the mundane life of an individual.The Preamble of the Constitution states that India is a “secular democratic republic”. This means that there is no State religion. A secular State shall not discriminate against anyone on the ground of religion. In S.R. Bommai v. Union of India as per Justice Jeevan Reddy, it was observed that “religion is the matter of individual faith and cannot be mixed with secular activities; freethinking can be regulated by the State by enacting a law”. In India, there is a wall of separation between religion and State. In India, positive secularism separates spiritualism with individual faith.There exists a concept of “positive secularism” as differentiated from the doctrine of secularism accepted by America and some European states .
The protection of Articles 25 and 26 is not limited to matters of doctrine of belief. It extends to acts done in pursuance of religion and, therefore, contains a guarantee for ritual and observations, ceremonies and modes of worship, which are the integral parts of religion.Article 25 and 26 guarantee the right to freedom of religion, Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. But this right is subject to public order, morality and health and to the other provisions of Part iii the Constitution, Article 25 also empowers the State to regulate or restrict any economic, financial, political or other secular activity, which may be associated with religious practice and also to provide for social welfare and reforms. Uniform Civil Code will not violate Article 25 and 26.
Article 44 is based on the concept that there is no essential connection between religion and personal ordinance in a civilised society. The Uniform Civil Code will not and shall not result in the legacy of one’s religious beliefs relating, mainly to maintenance, succession and legacy. This means that under the UCC a Hindu will not be forced to perform a nikah or a Muslim be forced to carry out saptapadi. But in matters of inheritance, right to property, maintenance and succession there should be only one law.Marriage, succession and like matters are of secular nature and ordinance can regulate them. No religion permits deliberate distortion.
CASES OF UNIFORM CIVIL CODE IN INDIA
- Mohammad Ahmed Khan v. Shah Bano Begum, 1985: In this popular case the supreme court lead in favour of Shah Bano under the maintenance of wives, children and parents. And came to a conclusion that a muslim husband’s commitment to afford maintenance to his wife after divorce who was not able to support herself.
- Sarla Mudgal v. Union of India: In this case it was held that the principles were against the practice of celebrating a second marriage by conversion to Islam, with the first marriage not being dissolved.
- Kesavananda Bharati case, 1973: In this case it laid down a new doctrine of the “basic features” of the Constitution of India. And it was held that the validity of 24th amendment act. And it was stated that parliament can not abbreviate a fundamental right that makes a part of the basic feature of the Constitution.
SUGGESTION AND CONCLUSION
The uniform civil code has been like an undelivered mail since the time of independence as like it has been discovered in Shah Bano case. Have an experience of UCC is not just an issue of fairness but it is also a matter of carrying the different cultures. The freedom to follow one’s culture in India exists just like a rigid right of a person just like any other of rights. India has to take hold of a way to shelter these different cultural bodies of people by permitting them to make use of their religious belief by supplying personal ordinance that on the other hand’s consequence of inequality. The people of different religions need to learn about the basics of the ordinance and the basics of the religious variety. Because the Indian constitution permits the people to follow their religion according to their culture that will also be regulated after the continuance of UCC. Thus, We can say that the proposition adopted is proved to be best because having an experience of ucc is the immediate requirement of today’s era.
AUTHOR’s DETAIL:
Anshita Tripathi
St. Andrew’s college, Gorakhpur, U.P