Abstract
The Uniform Civil Code (UCC) is a concept in India’s constitution that aims to replace personal laws based on religious customs with a common set of laws governing citizens, including marriage, divorce, inheritance, adoption, and maintenance. The implementation of UCC is solely the responsibility of the government. This article primarily focuses on the historical context that led to the formation of UCC and the key decisions that influenced it. Since British administration, the UCC and religious rights have been a contentious issue. Argument of the UCC is multidimensional, having political, theological, and cultural dimensions. In India, the implementation of a UCC is laden with legal and constitutional issues, necessitating a delicate balancing act between advancing equality and safeguarding religious freedom. Implementing UCC offers numerous advantages, including the ability to build a sense of belonging among residents by establishing a shared set of laws that transcend denominational divides. The UCC has a lot of adversaries, most of whom are conservatives who want court decisions to be based on their personal laws. In this essay, the impact of the UCC and religious rights is given equal weightage. This paper seeks to provide its readers with a comprehensive understanding on UCC implementation
KEYWORD
Uniform Civil Code, Religious rights, Freedom, Implementation
INTRODUCTION
UCC stands for basically replacing ongoing / current laws that are applied to all those communities that are uneven with each other. The other reason of implication of UCC was to protect women of all religion and caste and to provide them security in India. The main aim of UCC is to bring uniformity in legal framework to all citizens. It is mainly concerned about the matters of marriage, divorce and succession that are still governed by religion based personal laws. But this concerned matters are the major controversial issue as most of the communities wants to bind their personal laws in regards of marriage, divorce or succession.
UCC comes under Art. 44. of Indian constitution as a part of DPSP. It emerged as a most crucial topic since 1985 following the Shah Bano case where triple talaq can’t be held as a divorce it has to be proper legal procedure of court for a divorce to occur. Goa was the first state to implement UCC in 1961.
Religion which is basically matter of fact and its rights are protected under Art.45. Religion freedom prevents the cultural majority by using the power of state of imposing their belief on others. Religious rights stands as a major challenge in front of UCC as in the case of India the religious rights mainly is a concern for minority as UCC can reflect kind of majoritarian approach which may give rise to the feeling of certain minorities getting targeted.
The most controversial line said by prime minister Narendra Modi was ‘how in a home one law can be applicable to only one individual and the other law getting applied to another individual’ , ‘how can this rule work in home’, as addressed this statement in an interogative form to audience again started the controversy on ongoing topic enactment of UCC and religious rights . This statement was passed by PM at Madhya Pradesh which is in poll-bound state while speaking to party functionaries.
This particular statement of PM Narendra Modi was mainly directed towards Muslims in India as in article of ‘The Hindu’ it was seen him stating that. Mainly the opposition from Muslim community in India primarily emerged from the concerns of implementation of the UCC and it’s impacts because most of the Muslims fear that there will be abolition of their personal laws from shariah due to the application of the UCC.
The fear among minority is not only limited to Muslim but it is also applied to Christian community as they feels that UCC will Interfere in their personal laws when in regards of divorce.
UCC also has a good response of acceptance as not all Muslim community and Christian community are against it. In many cases it has been said that people satisfied with law procedure these people mostly are women who get many benefit and their rights are hindered in the most cases such as divorce, marriage and succession.[1]
RESEARCH METHODOLOGY
This paper is descriptive in nature and based on empirical data by relying on secondary sources for the deep analysis in the religious rights and impact of enactment of Uniform Civil Code in India. secondary sources of information such as newspapers, websites are used for research.
REVIEW OF LITERATURE
(Historical background)
The roots of UCC can be seen established since colonial period. When the British government was stressed out because they weren’t able to apply one law on all religion mainly on Hindu’s and Muslim. As each of this religion had their own laws such as the Hindu’s used Vedas, Manusmriti for deciding the punishment for any wrong done by Individual and Muslims used their personal laws such as shariah and these two communities even wished that when the trial of cases of their community is going in the court, the British judge should apply their particular religion’s personal law and then to give a verdict. Tired by that ongoing demand, British government resolve to create one specific which will be applicable to all people regardless of their particular caste and religion. Thus, they created specific laws relating to various torts and in the process of this British Government submitted his report on 1835, portraying the need of UCC.
SHAH BANO CASE
In 1985, the landmark case of Shah Bano Begum, it was seen that shah Bano who is a Muslim women married to Mohammed Ahmed Khan filed petition against her husband in a local court of Indore under section 125 of code of criminal procedure asking him for the maintenance amount for herself and children .The husband of Shah Bano gave an unalterable Talaaq (divorce) to her which was his prerogative under Islamic law and he took up the defence that as Shah Bano stopped being his wife , thus he had no obligation to provide her maintenance except under the Islamic law which was in total Rs.5400. This issue was finally taken to Supreme court and the verdict given by Supreme court was under Shah Bano favour as secular criminal procedure code was used regardless of religion.[2]
The shah Bano case was first of its kind to bring in the limelight the view of how some Muslim women were neglected by their husband and to show that even if divorce is in domain of the personal law, and maintenance is not. thus, why keep Muslim women as exclusions in this law. from this case the awareness of significance of UCC start spreading. As due to the main element of UCC as equality and protection of women’s rights, there was an impact on verdict of Supreme court in the case of Shah Bano and to bring uniformity in laws irrespective of their religion or caste.
Reasons for Shah Bano case being landmark case[3]
1. It portrayed motivational and further developmental character of Muslim women in which they progress and divisions of Muslim society who were prepared to face and challenge the religious orthodox thoughts
2. The predicament of the Muslim women was brought in to the spotlight and the discrimination that they faced in matters mostly related to marriage and divorce.
3. Bringing the implementation of UCC is regarded as a big step to ever take.
4. Most significant part of it was that it raised a discourse about the exercise of principle of equality and rights of women
(LATER EFFECT OF SHAH BANO CASE ON UCC)
The Shah Banno case soon appeared to be as political issue of whole nation and a controversy which was widely argued while most of the liberal, rational and progressive Hindu as well as Muslim supported the supreme court’s decision, But the all India Muslim Board denied. The main fear of conservative Muslims was that their communal identity was at stake if their personal law were government by in 1985.
Rajiv Gandhi’s Congress government lost local elections due to its endorsement of the Supreme Court’s decision. Muslim board members, including Khan, began a campaign for complete autonomy in their personal laws. The press played a significant role in sensationalizing this incident. An independent Muslim Member of Parliament proposed the Muslim Women (Protection of Rights of Divorce) Bill 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women and legislated alimony for Muslim men only for 90 days after divorce. This bill defeated liberal movements and women’s protection in Indian society. This major challenge was quite difficult to tackle as it hinder the development as well as influence of UCC and made limitation to women’s rights such as there were many laws but still women were dominated by religious laws rather than n secular laws and uniform civil laws.
(CURRENT STATUS OF UCC)
Hindu nationalists in India advocate for a secular, equal civil code, despite religious and secular opposition. The Sangh Parivar and BJP are leading the fight for equal treatment. The Goa Civil Code, originally Portuguese, continues in Goa, India. Sikhs and Buddhists object to Article 25, which terms them as Hindus with personal laws, but ensures the right to bear a Kirpan.[4]
“This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a [5]court”, the Supreme Court of India said this and asserted the need for a uniform civil code in October 2015.
The UCC bill, included in the BJP’s 1998 and 2019 elections, was first proposed in Parliament in November 2019. However, it was withdrawn due to opposition MPs’ protests. The BJP is considering the bill’s specifics due to its differences with the RSS. A plea was filed in the Delhi High Court, and a Supreme Court request was made to transfer the plea to avoid inconsistency.
The Uniform Civil Code debate began in India after the Bhartiya Janta Party (BJP) promised to bring one in the country if elected. Public Interest Litigations (PILs) were filed in the Supreme Court, demanding the Union government to implement the code. In 2020, BJP leader Ashwani Kumar Upadhyay filed a PIL seeking gender-neutral and religion-neutral succession and inheritance grounds for Indian citizens. In Goa back to 1867 the history of the Uniform Civil Code is laid. The 21st Law Commission of India found that a uniform civil code is neither necessary nor desirable at this stage. Thus, the current status of UCC is that it is still not enforceable through courts as clarified by constitution.
CRITICAL ANALYSIS OF UCC
(VALIDITY)
The main task which UCC performs is that it ensures women empowerment and highly promotes gender justice. The way countries like Canada, U.S.A, Germany, France and Britian has successfully implemented UCC and progressed themselves in same manner India can progress further by implementing UCC. If UCC is enforced successfully, we would take a long stride in the direction of one nation one rule.
Sarla Mudgal vs. union of India ,1995
Facts of the case-Husband of Sarla Mudgal a Hindu women married Muslim lady though he himself was a Hindu and later by embracing Islam he held that with this second marriage there is a dissolution of the first marriage under Hindu law.[6]
Here it is under a Hindu marriage act that unless and until the first marriage is dissolved by a decree of Hindu marriage act the second marriage during the subsistence of the first one would probably violate the Hindu marriage act which has the basic principle of monogamy in it’s act. According to section.494 it is said that marriage would be punishable as it leads to bigamy which is punish under section-494. Second marriage also leads to violation of principles of natural justice.
In accordance of constitution of India- Art .44 and 25 to 27
In the matters of marriage, inheritance and succession the necessity to apply Uniform Civil Code is portrayed and fundamental rights relating to religion of members of any community should not be affected because of this personal law have been permitted to operate under authority of legislation , the same can be superseded by a Uniform Civil Code .
Sarla Mudgal promoted the creation of a Universal Civil Code (UCC) to address the problem of second marriages taken place by Hindu husbands who had converted to Islam. The court made a point of the abuse of personal laws and the requirement for a UCC to guarantee gender equality and rights. The necessity of protecting religious freedoms and addressing them with serious effort was highlighted by Justices Singh and Sahai. H.M. Seervai disagreed with the judges’ position, contending that they lack the authority to carry out Article 44’s requirement for a UCC. The UCC shouldn’t be used to impose majority views or disparage the cultural practices of minority populations; rather, it should address discriminatory practices in personal laws and advance a more fair society.
Critics on UCC –
A portion of legal professionals think that the fundamental freedoms of religion (Articles 25 to 28) will be violated by a uniform civil code. Fundamental rights are listed in Articles 12 to 35 of Part 3 of the Constitution. Fundamental Rights and Directive Principles are supposed to support one another in a perfect world. However, there has frequently been a point of contention and disagreement between them. These are actually two opposing sides of a scale, and it is up to the governments to establish a balance between them.
On the basis of parliamentary discussions and legal rulings, conflicts between fundamental rights and directive principles are understood and resolved. Several significant rulings on the conflict between Directive Principles and Fundamental Rights. Two of the judgments are in the Golaknath vs State of Punjab (1967) and the Kesavananda Bharti vs State of Kerala (1973) cases.
Based on these rulings, it can be claimed that the Parliament has the authority to change a citizen’s fundamental rights, but the change should not impact the Constitution’s “basic structure.”[3]
PRO’s of Uniorm Civil Code
i. Equality and Social Justice
One of the main arguments in favour of establishing a UCC is that it would guarantee equality and social justice by giving all citizens, regardless of their religious affiliations, a standard legal framework. Personal laws currently frequently support discrimination and gender inequality. The elimination of discriminatory practices like triple talaq (quick divorce) in Muslim personal law and uneven inheritance rights for women could be aided by a UCC.
ii. Secularism and National Integration:
The Indian Constitution’s stipulation of secularism would be supported by the implementation of a UCC. It would further the notion of a secular state that accords equal treatment to all citizens, irrespective of their religious convictions. By transcending religious barriers and promoting a feeling of togetherness and common identity, a UCC might help promote national cohesion.
iii. Women’s Empowerment:
India’s personal laws, notably those pertaining to marriage, divorce, and inheritance, have frequently come under fire for being prejudiced towards women. By eradicating discriminatory behaviors and guaranteeing equal rights and protections for all people, a UCC might potentially result in greater gender equality and the empowerment of women.
iv. Legal Certainty and Simplification:
The existence of various personal laws leads to legal complications and confusion. By providing a standard set of laws which will be applicable to all citizens, a UCC would promote legal certainty and simplify the legal system. This would eliminate ambiguity and improve access to justice, particularly for underprivileged groups who may find it difficult to traverse complex legal processes.
CON’S OF Uniform Civil Code[7]
I. Religious Freedom and Cultural Autonomy:
One of the main worries is that a UCC may violate cultural and religious autonomy. India is a multicultural nation with multiple different religious sects, each with their own set of customs and laws. Imposing a unified code, according to critics, might jeopardize the rights of religious minorities and diminish their diverse cultural identities.
II. Preservation of Pluralism and Diversity:
A UCC, according to opponents, may damage the nation’s diverse structure and cultural variety. India is renowned for its rich culture and traditions, and historically, particular religious beliefs and practices have had an impact on personal laws. According to detractors, maintaining this variety is crucial for upholding social cohesion and honouring the rights of other ethnicities.
III. Implementation Challenges and Resistance:
Because of India’s diverse religious and cultural background, implementing a UCC is a challenging endeavor. Religious organizations and conservative groups who view the code as a danger to their traditions and practices may put up a lot of resistance. It might be a difficult undertaking to get over these implementation problems and get universal support.[8]
IV. Potential Disruption and Social Unrest:
Proponents of a UCC claim that its adoption will cause societal turmoil and conflict. Marriage, divorce, inheritance, and other areas of personal life are governed by personal laws that are strongly established in religious and cultural norms. Any abrupt and significant modifications to these rules could upend established conventions, thereby causing societal friction and unrest
CONCLUSION
The application of UCC is difficult as well as delicate matter which is frequently entangled with political, social, and religious concerns. To achieve a balance between individual rights, cultural variety, and the tenets of equality and justice, careful consideration, consensus-building, and consideration of other perspectives are necessary.
In India’s socio-political climate, UCC is regarded as a serious matter. This article has examined the UCC’s complexity, delving into its background ramifications, debates, and probable future.
As we look to the future, it is clear that for the UCC to be successfully implemented, more than simply political will and legislative changes will be needed. A larger social shift that embraces the ideals of equality and fairness while honouring the rich diversity of India’s cultural and religious landscape will also be necessary.
The UCC is a reflection of the greater socio-cultural dynamics of Indian culture, not just a legal issue, in conclusion. In order to guarantee that any progress toward a UCC is inclusive, equitable, and respectful of India’s unique cultural and religious fabric, it urges for additional study and conversation with a wide range of stakeholders.
[1] Mohammad Bilal, dailyo.in, why many muslims in India are against Uniform Civil Code, July 5,2023 https://www.dailyo.in
[2] Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SSC 556: AIR 1985 SC 945 https://www.scconline.in
[3] ias score, Shah Bano judgement and uniform civil code,12th July 2019 https://iasscore.in
[4] Rohit Srivastav , times of India, Uniform Civil Code- Is India all set, MAR 27, 2022,
[5] (Before Kuldeep singh and R.M Sahai JJ) writ petition civil no. 1079 of 1989 , Sarla Mudgal vs union of India (1995) 3 SCC 635: AIR 1995 SC 1531 https://www.scconline.in
[6] Aravindran Anandan ,The wire-Equilibrium between Art. 25 -28 and 44: The Imperative for a Uniform Civil Code, 1 August 2023 https://thewire.in
Sanika Ambavkar
ILS Law College, Pune
[1] Mohammad Bilal, dailyo.in, why many Muslims in India are against Uniform Civil Code, July 5,2023 https://www.dailyo.in
[2] Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SSC 556: AIR 1985 SC 945 https://www.scconline.in.
[3] ias score, Shah Bano judgement and uniform civil code,12th July 2019 https://iasscore.in
[5] Rohit Srivastav, times of India, Uniform Civil Code- Is India all set, MAR 27, 2022.
[6] ] (Before Kuldeep singh and R.M Sahai JJ) writ petition civil no. 1079 of 1989 , Sarla Mudgal vs union of India (1995) 3 SCC 635: AIR 1995 SC 1531 https://www.scconline.in.
[7] Aravindran Anandan ,The wire-Equilibrium between Art. 25 -28 and 44: The Imperative for a Uniform Civil Code, 1 August 2023 https://thewire.in.