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THE NEED FOR A UNIFORM CIVIL CODE IN MODERN INDIA

Publications, Research paper

ABSTRACT

India, a multicultural and eclectic country, has debated whether to adopt a Uniform Civil Code (UCC) for its inhabitants for many years. This abstract gives a summary of the current debate concerning the introduction of a UCC in contemporary India. The goal of the Uniform Civil Code is to substitute a uniform, secular legal framework that is applicable to all people regardless of their religion or community for the current personal laws, which regulate issues like marriage, divorce, inheritance, and succession. The UCC’s supporters contend that it will advance social peace, individual liberties, and gender equality, bringing India in line with contemporary democratic ideals. However, there are several obstacles in the way of India establishing a UCC. Because of the country’s unique religious and cultural environment, several religious groups are opposed because they worry about having their religious rights and practices infringed upon. The acceptance of the UCC has been significantly hampered by this opposition. This abstract also looks at the historical background of the UCC dispute, emphasizing earlier initiatives and commissions that sought to create a thorough code. It also outlines the legal requirements that must be met in order to adopt a UCC as well as the constitutional provisions that permit such adoption. This abstract also discusses the UCC’s current applicability to contemporary India. It examines the crucial concerns surrounding personal laws, such as triple talaq, gender discrimination, and the requirement for fair inheritance laws. It evaluates a UCC’s potential advantages in promoting national integration, enhancing individual rights, and assuring legal consistency. In conclusion, the topic of a uniform civil code in contemporary India is one that is both complicated and multifaceted. While advocates claim it has the potential to advance social cohesiveness and equality, there are considerable obstacles that must be overcome due to India’s varied religious and cultural environment. The abstract lays the groundwork for a thorough investigation of the UCC controversy, highlighting the significance of this discussion in determining India’s legal destiny.

KEYWORDS

Contemporary, Discrimination, Personal Laws, Fundamental, Implementation, Practice, Inheritance, Religious, Social

INTRODUCTION

A UCC fundamentally entails combining all “personal laws” into a single body of secular law that governs these matters and is applicable to all Indian citizens, regardless of their affiliation with a particular group. Although the precise details of such a universal code have not been established, it is presumed that it will combine the most contemporary and forward-thinking elements of all current personal laws while eliminating their more archaic counterparts. [1]To guarantee that this process is not merely a political ploy but the intellectually studied pursuit of harmonious government, striking a balance between Articles 25–28 and Article 44 of the Constitution is of the highest significance. Neither the majority nor the minority populations’ emotive justifications for wanting a UCC, nor should it be a political sham, nor be the driving force behind the necessity for one. Instead, it must be tackled carefully and carefully considering its effects on the country’s unique fabric. The UCC is supported by Article 44 of the constitution, which is a DPSP (Directive Principle of State Policy). These recommendations serve as the government’s road map for achieving social and economic democracy. The UCC, as a DPSP, urges consideration of the nation’s and society’s dynamic character. Any attempt to put the UCC into practice should aim to respect and protect the distinctive cultural characteristics of diverse groups.[2]

RESEARCH METHODOLOGY

The research for this descriptive essay’s in-depth examination of the necessity for UCC in contemporary India is drawn on secondary sources. The research makes use of secondary sources of data, including websites, journals, and research papers.

REVIEW OF LITERATURE

The Uniform Civil Code (UCC) in contemporary India is the subject of a complicated and divisive discussion that touches on a number of legal, religious, gender, and social justice issues. This discussion has benefited greatly from the contributions of academics, legal professionals, and policymakers. Here is a summary of some major ideas and revelations from the literature:

History

Even before division, there was a discussion over constitutionalizing the Uniform Civil Code (UCC) requirement. The subcommittee on fundamental rights, which convened from February to April 1947, kicked up the discussions. Both Modernists and strong Hindu nationalists called for the creation of a single civil code. Amrit Kaur, a Christian member of Congress who represented CP and Behar, and Minoo Masani, a Parsi member of Congress from Bombay, both urged that the clause be inserted in the justiciable portion of the constitution so that it could be enforced by courts. They said that “the existence of personal laws based on religion which keeps the nation divided into watertight compartments in many aspects of life has been one of the factors that has kept India back from advancing to nationhood.” The majority of the subcommittee members disagreed with this requirement, hence it was suggested that the clause not be included in the Directive Principles part of the constitution. The disagreement over the basic issue of how unity and uniformity relate to one another was simply one facet of the discussion in the Constituent Assembly. The second consideration has to do with the constitution’s ability to encourage social, religious, and cultural reforms. People who wanted to change religious practices, progress secularization, and ensure that all religious groups followed the same laws stood on one side of the debate. On the other side were those who thought a constitution should not force significant social and cultural changes but rather should represent the spirit of the country as it was at the time. KM Munshi, who represents the Hindu perspective, stated, “There is one crucial issue which we have to have in mind- and I want my Muslim friends to realize this- that the sooner we discard this isolationist stance on life, the better for the country. Religion must be kept to areas that properly relate to it, and the rest of life must be governed, unified, and changed in order for us to develop a strong and united country as soon as possible. Our first and most pressing issue is to foster national cohesion in our nation. It is useless to always cling to the past. We are leaving the past behind. We want India as a whole to be fused and unified as one country. Are we promoting the elements that aid in the fusion of our country into a unified entity, or should we constantly maintain it as a collection of rival communities? A Muslim League official from Madras named B. Pocker Sahib Bahadur responded, “There are several societies that have been adhering to different traditions for decades or for thousands of years. You want to undo everything and make them all the same with one penstroke. The unified civil code was criticized by Pocker Bahadur as an example of the tyranny of the majority. He inquired as to what community norms would serve as the foundation for the consistency of the code.

I have no doubt that a day would come when the civil law would be consistent, but Naziruddin Ahmad, a Muslim legislator from West Bengal, cautioned against unduly extreme constitutional provisions. However, that moment has not yet arrived. We think it is premature for the state to have the authority to impose uniformity on the Civil Code. We shouldn’t grant the state the authority to accomplish all at once what the British failed to do or were frightened to do for 175 years, and what Muslims abstained from doing for 500 years. I contend, sir, that we should go forward slowly, wisely, diplomatically, and sympathetically instead of hastily. Ahmad emphasized the significance of getting the approval of the communities whose religious laws would be impacted by the new code: “The goal should be towards a Uniform Civil Code, but it should be gradual and with the consent of the people concerned.” Therefore, he advocated that Parliament, which might win the support of the communities through their representatives, make the choice on whether to apply a standard civil code rather than having it written into the constitution. A universal civil code was eventually mentioned in the “Directive Principle of State Policy” as Article 44 when the framers opted to join the draftsmen’s position. In accordance with this clause, “the State shall endeavor to secure for the Citizens a Uniform Civil Code throughout the Territory of India.” The section just called for the state to “endeavor to secure a civil code for the citizens of the country,” according to Dr. Ambedkar, the head of the Drafting Committee. It is not stated that the state must impose the Code on all residents after it has been created. Ambedkar emphasized that Parliament would still have the final say in whether to carry out this suggestion for policy and that it was “perfectly possible” that it might determine that “in the initial stage, the application of the Code may be purely voluntary.”[3]

Constitutional Perspective of Uniform Civil Code

India is one of the world’s fastest-rising superpowers, but the country’s women, who make up 50% of the population, battle daily to be treated with respect and decency. Women in this culture become victims on a social, political, economic, and moral level, regardless of their status or caste. Social media posts about the infringement of human rights are made on a daily basis, but the solution to the problem still seems to be a phantom. The preservation of individual rights, regardless of variations in caste, faith, religion, race, sex, and place of birth, was guaranteed by our constitution in Part III. It has placed severe restrictions on the state, forbidding it from passing any laws that would lead to discrimination on any of the aforementioned grounds. The state accords all religions with the same respect under the fundamental principle of secularism. Every religion is given the freedom and discretion to create its own unique set of rules that will protect it from the reach of the government. Although at first, it would have seemed desirable and acceptable to include these essential liberties in our constitution, particularly in the area of religion. But times have significantly changed; women are becoming more knowledgeable in all professions, holding the most demanding and respectable positions across all industries, being aware of their rights, and being in a position to contest the legitimacy of those rights. They might therefore gradually discover the snowball effect in this regard. Of course, unless anything is opposed, anything can continue to occur, even if it is nonsensical. It is an undisputed and well-recognized truth that each person’s faith, tradition, culture, and customs must be given top priority. This clause, which is included in Articles 25 through 28, guarantees religious freedom to all faiths. It opened the door for customized regulations that were tailored to each person’s faith and culture. However, personal laws frequently infringe on other fundamental rights protected by Articles 14–15 and 21 while masquerading as religious liberties. Almost all personal laws, in one way or another, plainly display certain aspects that are discriminatory towards women. If we examine the articles of our constitution like 14, 15, and 21, they serve as a watchdog against any gender-based injustice, discrimination, cruel treatment, and infringement of our fundamental rights. However, in actual situations, we showed that we were unable to get the desired result. India is growing quickly in all areas—technological, scientific, economic, and intellectual. By successfully launching 104 satellites with a single rocket on February 15, 2017, India just made history as the first nation to do so. Despite these accomplishments, women in India still face discrimination. Women astronauts Ritu Karidial, Nandini Harinath, Anuradha TK, etc., played a big and crucial role in this remarkable feat. The changing sex ratio in India effectively illustrates the prejudice against women from the moment of birth. It is acknowledged that the long-standing preference for males over women in India’s patriarchal society has a significant role in preventing women’s emancipation. India, a multicultural nation with a kaleidoscope of cultures, religions, customs, and usages, upholds unity in diversity. However, a detailed examination of the internal structure as it relates to specific laws and their long-standing implementation reveals a stigma on women’s status. My essay focuses on the rights and position of women in the context of constitutional considerations.[4]

Religious Communities and Personal Laws

  • There are currently a few exclusions to the Hindu Marriage Act that apply to marriages under the Act. According to Section 2(2) of the statute, its provisions do not apply to Schedule Tribes, and Section 7 states that the Hindu Marriage statute’s provision is superseded by customary practice. Once implemented, the UCC will eliminate these exceptions. The husband’s family members are identified as themajor heirs of the deceased wife under the Hindu Succession Act of 1956, while her parents and siblings are regarded as subsidiary heirs. The statute distinguishes between property inherited from ancestors and property obtained independently. Grandchildren have a birthright to inherited property, but not to property that their grandparents purchased. The husband’s family members are identified as the major heirs of the deceased wife under the Hindu Succession Act of 1956, while her parents and siblings are regarded as subsidiary heirs. The statute distinguishes between property inherited from ancestors and property obtained independently. Grandchildren do not have a birthright to any property that their grandparents have acquired. To achieve consistency under UCC, it may be necessary to alter who is regarded as a legal heir and how property is obtained under the Hindu Succession Act. According to Section 18 of the Hindu Succession Act, which governs inheritance, full-blood relations are given preference over half-blood relations. It also provides a list of individuals who are disqualified from inheriting a property for a variety of reasons. All of this might alter with the implementation of UCC. Only Hindus, Jain, Sikhs, and Buddhists are eligible for the Hindu Adoption and Maintenance. Couples from the communities are legally permitted to adopt children and grant them the opportunity to inherit property. The UCC will make an effort to standardize everything, including adoption. As a consequence, communities that are presently prohibited from adopting children legally would be given the choice to do so. From a legal perspective, a HUF is a distinct entity. The HUF is able to do business, purchase shares of stock, and participate in mutual funds thanks to its own PAN card. A 25 lakh tax exemption is granted to the HUF. Millions of Hindu families would be impacted if the government eliminated the tax, insurance, and investment exemptions granted to a HUF as discriminatory. Modifying the current loan, insurance, and bank account systems will have consequences.[5]
  • Muslim clergy generally oppose a UCC. “Personal laws are not exclusive to Muslims. The Constitution protects the personal rules of many different religions and ethnic groupings, according to Lucknow-based religious leader Maulana Khalid Rasheed Farangi Mahali. Additionally, he contends that all religions should first come to an agreement and address all facets of personal legislation. Islam views marriage as an agreement between two people. The Nikahnama, which bears the signatures of both parties and witnesses, is the legal document certifying the marriage contract. There is a clause to void a contract wherever one exists. Males and females can separate here. However, issues arise when the terms of the contract are not fulfilled. Consider the instance of Mehr, the amount paid to the bride by the groom as specified in the Nikahnama. However, this is frequently not paid for or the husband asks his wife to excuse him from paying it. Typically, when the parameters of the marriage are amicable, women accept their husbands’ requests to waive obligations.[6]

Judicial Intervention

  • Shah Bano Case (1985)[7]: Although not directly connected to the UCC, this case addressed the problem of Muslim women’s upkeep. Regardless of Muslim Personal Law, the Supreme Court of India declared that Muslim women are entitled to maintenance under Section 125 of the Code of Criminal Procedure.Significant debate and discussion over the necessity of a UCC were sparked by this instance.
  • Triple Talaq Case (2017)[8]: In Shayara Bano v. Union of India, the Supreme Court ruled that Muslims who practice quick triple talaq (talaq-e-biddat) are engaging in discriminatory and unconstitutional behavior. Although this decision did not establish a UCC, it did demonstrate the necessity for personal law reform.
  • 2018’s Sabarimala Shrine Entry Case[9]: In this case, women of menstrual age were admitted to the Sabarimala shrine in Kerala. Even though it wasn’t directly relevant to the UCC, it brought up issues regarding the clash between gender equality and religious beliefs, which is crucial when discussing personal laws and the UCC.
  • Marital Rape Debate: In India, there has been debate about whether or not to make marital rape a crime. There hasn’t been a specific case, but it’s a hotly debated topic that touches on personal laws and the necessity for consistency in the laws governing marriage and personal rights.
  • Several attempts have been made throughout the years to propose legislation in the Indian Parliament that would adopt a uniform civil code. These measures, meanwhile, ran into opposition and didn’t become law.

SUGGESTION

The adoption of a Uniform Civil Code (UCC) in contemporary India is a complicated and hotly contested topic. The notion of a UCC is established in Article 44 of the Indian Constitution as a guiding principle of state policy, but because of the country’s diverse religious and cultural milieu, its practical implementation has encountered several difficulties. Here are some ideas and things to think about when putting a UCC into practice in contemporary India:

  • Consult with all interested parties.
  • Gradual Transition.
  • Gender Equality.
  • Legal Clarity.
  • Education and Awareness.
  • Protection of Minority Rights.
  • Human Rights and Fundamental Freedom.
  • Safeguard against misuse.
  • Legal Aid and Support.
  • Review and adaption.
  • Political Consensus.
  • International Best Practice.

CONCLUSION

The adoption of a Uniform Civil Code (UCC) is an important point of discussion and consideration in modern India. As a multicultural and heterogeneous country, India is home to a wide range of religious and ethnic groups, each of which has its own set of personal laws that regulate things like marriage, divorce, inheritance, and property rights. For the nation, this variety has been a source of strength as well as difficulty. The Indian Constitution’s tenets of equality, fairness, and secularism are what essentially drives the requirement for a UCC in contemporary India. No matter their religious affiliations, all citizens would be treated equally under UCC’s unified set of laws. In concerns pertaining to women’s rights, where personal laws frequently discriminate against women, resulting in uneven treatment in areas like divorce, alimony, and inheritance, this is especially significant. A UCC can also make the legal system simpler, which will make it easier for the average person to access and comprehend. It can simplify the legal system and clear up the uncertainty brought on by many personal laws, enhancing the openness and effectiveness of the judicial system. However, there are difficulties in India with the implementation of a UCC. It is a difficult task because of the variety and ingrained customs of the nation. Any attempt to establish a consistent code must be done with consideration for the many religious and cultural communities and with respect for their values. The necessity for a UCC in contemporary India is clear since it is consistent with the constitutional ideals of justice and equality. It might guarantee consistency, gender fairness, and ease of use in court proceedings. However, its execution needs to be the result of democratic, inclusive, and consultative procedures that honor and take into account the rich variety of the country. Addressing this significant issue in contemporary India requires a well-rounded strategy that protects both individual liberties and community harmony.

Name: Ujjwal Vikash

College: Campus Law Centre, Faculty of Law, University of New Delhi (2020-2023)

[1] Home – Journal on Contemporary Issues of Law, https://jcil.lsyndicate.com/wp-content/uploads/2023/06/Satyam-Shobitabh.pdf (last visited Sept. 14, 2023).

[2] Equilibrium Between Articles 25-28 and 44: The Imperative for a Uniform Civil Code, The Wire, https://thewire.in/law/equilibrium-between-religious-freedom-and-ucc-dpsp (last visited Sept. 14, 2023).

[3] UCC : a rational choice of historical significance – iPleaders, iPleaders, https://blog.ipleaders.in/ucc-a-rational-choice-of-historical-significance/ (last visited Sept. 14, 2023).

[4] Constitutional perspective of uniform civil code, Legal Services India – Laws in India, Supreme court judgments, lawyers in India, https://www.legalservicesindia.com/article/2367/Constitutional-perspective-of-uniform-civil-code.html (last visited Sept. 14, 2023).

[5] How UCC might impact personal laws of different religions, aajtak, https://www.indiatoday.in/interactive/immersive/ucc-uniform-civil-code-india (last visited Sept. 14, 2023).

[6] UCC For Islam: Beneficial For Muslims Or An Interference?, https://www.outlookindia.com/, https://www.outlookindia.com/national/ucc-for-islam-beneficial-for-muslims-or-an-interference–news-294990 (last visited Sept. 14, 2023).

[7] 1985: Shah bano case, Frontline, https://frontline.thehindu.com/the-nation/india-at-75-epochal-moments-1985-shah-bano-case/article65730545.ece (last visited Sept. 17, 2023).

[8] Huizhong Wu, Triple talaq: India’s top court bans Islamic practice of instant divorce | CNN, CNN (May 18, 2017), https://edition.cnn.com/2017/05/18/asia/triple-talaq-supreme-court/index.html (last visited Sept. 17, 2023).

[9] Sabarimala Temple Case/Verdict: Supreme Court allows all women to enter Sabarimala Temple, The Economic Times, https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-allows-women-to-enter-sabarimala-temple/articleshow/65989807.cms?from=mdr (last visited Sept. 17, 2023).