right, advocacy, lex

IS UNIFORM CIVIL CODE A Final NAIL TO COFFIN?

ABSTRACT:

This paper largely discusses the notion of the Uniform Civil Code and its legal dimensions. The core substance of the Uniform Civil Code is discussed in this study, as well as what it means and its legal perspectives alongwith ideas before that Uniform civil code is related or equal to premise underpinning the notion of article 44 of Indian constitution which states that “The State should endeavour to acquire for the people a consistent civil code across the territory of India”. Furthermore, various individuals have varied perspectives on unified civil code; some believe it should be adopted, while others are completely opposed; thus, in order to explain this, the author will offer his point of view with logical reasoning in order to choose which side to select. So, the first part of our study topic will comprise the views of the constitutional assembly, which will include the perspectives of various members of the assembly as well as their rationale. Second, the author will explain why he believes or not  that a standard civil code should be established, including its benefits and drawbacks. The third sub issue will be particularly intriguing since it will cover current developments, and the fourth section will discuss case laws on UCC.

INTRODUCTION:

India is a country composed of people from diverse origins, languages, faiths, and so on, implying that India values diversity. However, why do we need a uniform regulation when it comes to personal law? Why can’t we support diversity in that arena as well? This is the main question that we will attempt to address in this piece. So, first and foremost, what is an unified civil code or article 44? “The State should endeavour to acquire for the people a consistent civil code across the territory of India,” declares Article 44[1]. In other words, the UCC is a body of legislation that addresses the personal issues of Indian residents without regard for religion in order to protect the people’s fundamental rights. Several events have occurred that have made “Article 44” relevant today, including the state election in Uttarakhand in which Pushkar Singh Dhami announced that UCC would be implemented soon, the newly elected chief minister of Gujarat forming a committee to develop guidelines for UCC, and, most importantly, the private member bill pertaining to UCC. The concept of UCC dates back to the colonial era, when Lord William, the then Governor General of India, strove to protect women from violence and hinted at the possibility of a universal civil code and moreover due to an upsurge in laws addressing personal problems following the end of British control, the government was obliged to form the B N Rau Committee in 1941 to codify Hindu law. It was the Hindu Law Committee’s mission to investigate if common Hindu laws were essential or not and as per committee’s suggestion women should have equal rights under a codified form of Hindu law and suggested that act of 1937 should be revisited.

RESEARCH METHODOLOGY:

The author employed a doctoral strategy for research, which means that already published or secondary sources were used, and for this, numerous blogs, articles, and research papers were used. Additionally, the author visited websites such as The Hindu, Ipleader, Legal Service India,Indian express and Live law among others.

Moreover, in this research paper the author will be answering to the following questions:

  1. What all are the challenges in implementing uniform civil code?
  2. Does Goa truly have a uniform civil code?

REVIEW OF LITERATURE:

In order to do this, the author studied publications from several major innovative magazines, articles, and blogs that were published. We found 11 publications that addressed uniform civil code-related topics for our systematic content analysis, to mention a few:

  1. THE HINDU: In this essay titled “The Uniform Civil Code[2],” the author discussed the opinions of the constitutional assembly, uniform civil code judgments, supreme court views, law commission views, and government attitude. To summarise, the author believes that a uniform civil code is necessary and should be established.
  • LEGAL SERVICE INDIA: In this blog titled “uniform civil code[3],” the author expounded on the constitution’s position on this, the necessity for a consistent civil code, the worldwide scene, and the disadvantages. To summarise, the author believes that UCC is a necessity of the hour and firmly supports his point by noting that UCC makes India secular.
  •  IPLEADERS: In this blog titled “Does the Uniform Civil Code Bring Uniformity in India[4],” the author discussed historical background, the Goa case study, obstacles, current developments, and major uniform civil code judgments. To summarise, he believes that the time has come to codify a single law for family problems in order to eliminate discriminatory personal laws, and he believes that “law is dynamic and changes with the needs of the moment.”

SUGGESTIONS:

The author wholeheartedly supports the battle for the implementation of the UCC and the harmonisation of personal laws. The author supports it not out of bias, but because it is an urgent necessity. It is past time for India to create a unified legal system for marriage, divorce, succession, inheritance, and maintenance. A uniform civil code is required in a society where secularism is highly valued in handling the nation’s outrageous challenges.

CONSTITUTIONAL ASSEMBLY ON UNIFORM CIVIL CODE:

The UCC provision sparked heated debate in the Constituent Assembly about whether it should be included as a basic right or a directive principle. The subject had to be determined by voting, and by a majority of 5:4, the sub-committee on basic rights, chaired by Sardar Vallabhbhai Patel, ruled that obtaining a UCC did not fall under the purview of fundamental rights. Members of the Assembly expressed diametrically opposed positions on the UCC. Some also believed that India was too heterogeneous for the UCC. Bengal member Naziruddin Ahmad claimed that some civic rules in all societies were “inextricably linked with religious ideas and practices.” He believed that the UCC would violate Article 19 of the draught Constitution (now Article 25), which provides the right to religious freedom subject to public order, decency, and health. While he was not opposed to the notion of an unified civil law, he maintained that the moment had not yet come, and that the process would have to be gradual and with the permission of the affected populations. Moreover, Member K.M. Munshi, on the other hand, dismissed the concept that a UCC would violate religious freedom, pointing up that the Constitution allows the government to pass rules governing secular activities connected to religious customs if they are meant to promote social transformation. He campaigned for the UCC, citing benefits such as encouraging national unity and women’s equality. He said that if personal rules of inheritance, succession, and so on were considered religious, many discriminatory practises of Hindu personal law against women could not be eradicated[5].

 Furthermore Dr. B.R. Ambedkar had a more mixed attitude regarding the UCC. He believed that, while ideal, the UCC should be “purely optional” in the beginning. He argued that the Article “merely” requested that the state “seek” a UCC, implying that it would not impose it on all citizens. The modifications to the UCC to preserve personal laws were subsequently rejected.

WHY UNIFORM CIVIL CODE

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

                             —B.K. Sharma, Author

According to the writers, it would be incorrect to claim that UCC is creating a negative environment or undermining the ideals of the Indian constitution. According to the author, the following reason it should be endorsed:

  1. The Common Civil Code would provide a set of rules to govern all people’ personal problems, regardless of faith. It is the foundation of true secularism[6].
  2. Tax law differences contribute to the need for UCC. Muslims are exempt from paying stamp duty on gift deeds, same as Hindu Undivided Families are.
  3. It would reduce gender discrepancies in present legislation, since certain archive text restricts women in particular. Furthermore, there are more advantages to having UCC. This is not to say that there are no disadvantages, but the advantages outweigh the disadvantages.
  4. It will grant more rights to women as unified civil code would also aid in the advancement of women’s rights in India. Because our society is very patriarchal and sexist, permitting outdated religious traditions to regulate family life condemns all Indian women to subjugation and cruelty. A unified civil code will aid in the transformation of these ancient practices that have no place in today’s society.
  5. It encourages true secularism as in India, we now have selective secularism, which implies that we are secular in certain sectors but not in others. A unified civil code means that all Indian people, whether Hindus, Muslims, Christians, or Sikhs, must obey the same rules. This seems reasonable and secular to me. A consistent civil law does not impede people’s ability to practise their religion; it just implies that everyone is treated the same. That is true secularism.

Furthermore, there are more advantages to having UCC. This is not to say that there are no disadvantages, but the advantages outweigh the disadvantages.

CURRENT DEVELOPMENT:

As it is a common and intriguing problem, legislators and bureaucrats have paid close attention to it. For example, the most recent and relevant development was the submission of a private member’s bill on UCC (The UCC in India Bill 2020) in the Rajya Sabha. As part of the private member’s business, “BJP MP Kirodi Lal Meena” asked permission to propose a Bill to establish the National Inspection and Investigation Commission for the establishment of a uniform civil code, its application throughout India, and other things. The Bill offers a set of laws to guarantee everyone’s civil liberties, regardless of faith. Furthermore, the chief minister of Assam recently joined the chief ministers of Gujarat and Uttarakhand[7] in applauding and proclaiming support for the UCC. Additionally, “the UCC has been a pledge from our party; we are working on it; and, when the time is right, we will implement it,” Amit Shah stated at the Times New Summit. The Gujarat government has also announced the formation of a commission to explore how to appropriately incorporate UCC into the legislation; a draft is already being produced for this purpose. On May 28, 2022, the Uttarakhand government appointed a five-person committee to begin the implementation process. Following this argument, Law Minister (Kiren Rijiju) released a statement instructing states to use UCC at their discretion. The argument on this issue may be extended like a rubber band but the same idea applies here too if we stretch further, it will take more time. Moreover, The Bharatiya Janata Party (BJP) government has already taken steps to resolve the issue of triple talaq and Article 370. A law prohibiting triple talaq has been passed. The Muslim Women (Protection of Rights on Marriage) Act of 2019 criminalises triple talaq, and a resolution was passed with a 2/3rd majority in both houses of Parliament, resulting in the Government of India issuing a constitutional order in August 2019 to replace Article 370, which grants special status to the state of Jammu and Kashmir. All Indian laws are now applicable in Jammu & Kashmir. These two cases fuelled the debate about an unified civil code in the press. These two examples suggest that the legislation is heading in the right direction.

CASE LAWS ON UCC:

  1. Mohammad Ahmed Khan v. Shah Bano Begum  [1] 

In this case, Shah Bano filed a maintenance petition with the Supreme Court in 1985 after her husband granted her a triple talaq divorce and failed to pay her regular support. The Supreme Court decided in favour of Shah Bano, citing Section 125 of the Indian Criminal Code, which applies to everyone, regardless of religion. Then, Chief Justice Y.V. Chandrachud remarked that a Common Civil Code will serve to enhance national unity by minimising diverse legal allegiances. As a result, the court ordered that Parliament draught a UCC, but the government pursued a different tactic, overriding the court’s judgement and enabling personal religious legislation to triumph over uniform ones.

  • Sarla Mudgal v. Union of India

the question in this was whether a Hindu spouse who had been married under Hindu law might legitimately register for a second marriage after converting to Islam. Converting to Islam in order to join a second marriage, according to the Supreme Court, is an abuse of personal norms. A Hindu marriage might also be cancelled, according to the Hindu Marriage Act of 1955. As a result, converting to Islam and then remarrying would not be sufficient to nullify a Hindu marriage because it would violate Indian Penal Code Section 494[5]. The Supreme Court has also recommended a unified civil code in this case.

  •  Shabnam Hashmi v union of India

The petition in Shabnam Hashmi v. UOI, (2014) 4 SCC 1, was filed to ask the Supreme Court to make optional guidelines for the adoption of children regardless of religion. The Supreme Court determined that adoption was legal and that Muslims were covered by the JJ Act. The Court recognised the Measure as a secular act applicable to all Indian citizens, regardless of faith. Adoption was also recognised as a Fundamental Right in Article 21 of the Constitution. The Court emphasised the obligation of the Uniform Civil Code on personal law matters such as adoption.

  • Kalyani v. Union of India,

The case of Sarla Mudgal v UOI concerned Section 494 of the Indian Penal Code, 1860. Section 494 of the Indian Penal Code makes bigamy a crime. Muslims, on the other hand, are immune from their jurisdiction since their own statute, the “Shariat Act,” permits polygamy. The Court concluded that the second marriage is void under Section 494 of the IPC since it did not dissolve the prior marriage using Hindu rites. The Court found the person guilty of the offence under Section 494 of the IPC. The Supreme Court Bench raised Article 44 extensively. Better justice was presented as a desire for UCC.

 CHALLENGES IN IMPLEMENTING UNIFORM CIVIL CODE:

  1. India’s diversity:

Due to the enormous variety of our nation, the application of the Uniform Civil Code is a laborious process. Cultural disparities between states and communities are another impediment to unified personal law[8].

  • state in private matters:

The right to freedom of religion of one’s choosing is guaranteed under the constitution. The extent of religious freedom will be diminished when consistent standards are codified and enforced.

  • Minorities’ feelings of insecurity:

The presence of worries in the minds of India’s minority group is a major issue in the Uniform Civil Code’s adoption. The personal rules of the majority, Hindus, are already defined and apart from religion. Minorities are scared of being subjected to majoritarian legislation. The notion in UCC is that majority rule is imposed on minorities.

  • Article 25:

Article 25 of the Indian Constitution is the greatest impediment to the implementation of the Uniform Civil Code. Minorities in the country are fighting the Uniform Civil Code’s implementation by using Article 25. Article 25 of the Constitution guarantees religious freedom as a fundamental right. A person is free to practise and spread his or her faith under this Article. The religious practices widespread in the personal laws of communities are maintained to be practised. These communities argue that Article 25’s right to religious freedom allows them to regulate personal laws in accordance with their community’s rules.[9]

GOA’S UNIFORM CIVIL CODE:

The following facts can help answer the issue of whether the Goa Civil Code is consistently applied:

  1. Hindu males are permitted to practise polygamy under certain circumstances, according to the Codes of Usages and Customs of Gentile Hindus of Goa, Daman, and Double.
  2.  According to the Codes of Usages and Customs of Gentile Hindus, divorce is permitted only in cases where the woman has committed adultery. The failure of the first wife to give birth to any children before the age of 25 and the failure of the first wife to give birth to a male kid before the age of 30 are further reasons for approving bigamy.
  3.  Muslim males whose marriages are documented by the Code are not allowed to engage in polygamy.
  4.  Inequality in adoption and illegitimate children’s rights
  5.  Catholics who have permission from the Civil Registrar’s office may wed in the Church. Contrarily, non-Catholics are limited to registering their marriage at the Civil Registrar’s office.

The facts about the Rule stated above show that it has multiple such exceptions to itself, indicating that it is not a uniform code in the genuine sense. There are exceptions to the monogamous tradition, but only Hindus and other civilizations are permitted to practise it. When contrasted to legitimate offspring, the rights of illegitimate children are similarly unequal. Marriages between Catholics and non-Catholics are considered differently as well. This indicates that it is not being applied uniformly to all of its citizens. There are various faults in this Code.

CONCLUSION:

India has a unique blend of codified personal laws for Hindus, Muslims, Christians, and Parsis. There is no unified family-related law for all Indians in a single statute book, resulting in issues such as varying marriage ages for men and women, as well as varied marriage ages within women. For example, under the Hindu Marriage Act of 1955, the marriage age for a woman is 18 years, but under Muslim law, the marriage age is whenever that girl child reaches puberty, and this discrepancy is related not only to marriage but also to divorce and other family related issues such as adoption, inheritance, and succession, which will eventually be resolved by UCC. Furthermore, as mentioned above some argue that an uniform civil code will stymie India’s secularism, but the author wants to emphasize that in India, “secularism” means equality before the law for all religions and practitioners of all religions. However, due to the present patchwork of legislation, different citizens are treated differently based on their faith, rendering their statement invalid. In other words, consistent civil norms promote both secularism and egalitarianism. The author think that at this juncture, the UCC is a requirement that, if adopted, will relieve difficulties in today’s Indian society. The point is, if we can have codified law for all civil and criminal proceedings, why not for family law?

[2] 

Author:

Name :- Tarang Arora
College:- MNLU Nagpur


[1]  Ishita Bakre , ARTICLE 44 OF INDIAN CONSTITUTION-YET TO BE DELIVERED, Aug 23, 2021

[2]Disha Munjal, The uniform civil code, november 06,2022

[3] Krati Sachdev, uniform civil code, june 25,2019

[4] Anushka Yadav, Does the Uniform Civil Code brings the uniformity in India, January 14, 2021

[5] Ishita Bakre, ARTICLE 44 OF INDIAN CONSTITUTION-YET TO BE DELIVERED, Aug 23, 2021

[6]Meera Emmanuel, Uniform Civil Code neither necessary nor desirable at this stage, Law Commission of India, 1 sep,2018 

[7] Explained Desk, After Uttarakhand, Gujarat seeks to bring Uniform Civil Code: what is it? , October 31, 2022

[8] SAPTARSHI BASAK, Uniform Civil Code: What is it and What are the Arguments Against it?,  10 Dec 2022

[9] ET Bureau, Welcome assurance on Uniform Civil Code, Nov 25, 2022


1 thought on “<strong>IS UNIFORM CIVIL CODE A Final NAIL TO COFFIN?</strong>”

Comments are closed.