Uniform Civil Code: An Overview
India has multiplicity of family laws. The Christians have their Christians Marriage Act 1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925. The Jews have their uncodified customary marriage law and in their succession matters they are governed by the Succession Act of 1925. The Parsis have their own Parsi Marriage and Divorce Act, 1936, and their own separate law of inheritance contained in the Succession Act which is somewhat different from the rest of the Succession Act. Hindus and Muslims have their own separate different from the rest of the Succession Act. Hindus and Muslims have their own separate persona laws. Hindus law has by and large been secularized and modernized by statutory enactments. On the other hand Muslim law is still primarily unmodified and traditional its content and approach.
The law is communal insofar as each community or religious group has its own distinct law to govern domestic relations. It is also personal insofar as each person carries his own aw wherever he goes in India. The family law is partly statutory and partly non-statutory. The present-day family law is thus a maze. There in no lex loci in India in matters of marriage, succession and family-relations. Thus is very confusing.
With a view to achieve uniformity of law, its secularization and making it equitable and non-discriminatory, the Constitution contains Art.44 of the Directive Principles of State Policy which runs as follows; "The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India"¬?.
The Common Civil Code: Constitutional Aspect-
Article 44 of the Constitution of India requires the State to strive to secure for its citizens a Common Civil Code throughout India.
The secular activities, such as inheritance covered by personal laws should be separated from religion. A uniform law thus prepared and made applicable to all would on the contrary promote national unity . It was pointed out at that time that, firstly, as Common Civil Code would infringe the fundamental right of freedom of religion as mentioned in Article 25 and secondly, it would amount to a tyranny to the minority. The first objection is misconceived because secular activity associated with religious practice is exempted from this guarantee and since personal laws (as argued from this point of view) pertains to secular activities they fail within the regulatory power of the state. Regarding the second point, nowhere in advanced Muslim countries has the personal law of each minority been recognized as so sacrosanct as to prevent the enactment of a civil code. In Turkey and Egypt no minority is permitted to have such rights.
If you will look to the countries in Europe which have a civil code, everyone who goes there from any part of the world and every minority has to the Civil Code. It is not felt to be tyrannical to the minority"¬¶"¬¶ Our first problem and the most important problem is to produce national unity in this country. We think we have got national unity, but there are many factors- and important factors- which still offer serious dangers to our national consolidation.
Communalism breeds discrimination at two levels: one, between people of different religions and two, between the two sexes. This dangerous and ruinous effect should be done away with, possibly by introducing a Uniform Civil Code. For women who constitute almost half the population of India, the Uniform Civil Code provide with equality and justice in courts of law- irrespective of their religion in matters pertaining to marriage , divorce, maintenance, custody of children, inheritance rights, adoption etc.
The only step taken forward in this direction was the codification f the Hindu law in spite of great protest; but the codification of Muslim law or enacting a Common Civil Code is a sensitive issue owing to its politicization. Enlightened Muslim opinion however, is in favour of codification.
Merits Of Uniform Civil Code:
If a Common Civil Code is enacted and enforced:
- It world help and accelerate national integration;
- Overlapping provisions of law could be avoided;
- Litigation due to personal law world decrease;
- 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.
Israel, Japan, France and Russia are strong today because of their sense of oneness which we have yet to develop and propagate.
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. 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.
According to the Committee on the Status of Women in India : "The continuance of various personal laws which accept discrimination between men and women violate 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 expeditious implementation of the constitutional directive in Art 44 by adopting a Uniform Civil Code.
Approach Of The Judiciary:
The Supreme Court for the first time, directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum , popularly known as the Shah Bano case, In this case, a penurious Muslim women 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 have 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 (Right to Protection on Divorce) 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 enacting the UCC; not binding on the government or the Parliament 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 question argued before the Supreme Court was that certain provisions of the Travancore Christian Succession Act, 1916, were unconstitutional under Art. 14 Under these provisions, on the death of an intestate, his widow was entitled to have only a life interest terminable at her death or remarriage and his daughter. It was also argued that the Travancore Act had been superseded by the Indian Succession Act, 1925. The Supreme Court avoided examining the question whether gender inequality in matters of succession and inheritance violated Art.14, but , nevertheless, ruled that the Travancore Act had been superseded by the Indian Succession Act Mary Roy has been characterized as a "ňúmomentous' decision in the direction of ensuring gender equality in the matter of succession.
Finally, the Supreme Court has issued a directive to the Union of India in Sarla Mudgal v. Union of India to " endeavour"¬? framing a Uniform Civil Code and report to it by August, 1996 the steps taken. The Supreme Court opined 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, however, to be noted what the Supreme Court expressed in Lily Thomas case . The Court said that the directives as detailed in Part IV of the Constitution are not enforceable in courts as they do not create any justiciable rights in favour of any person. The Supreme Court has no power to give directions for enforcement of the Directive Principles. Therefore to allay all apprehensions, it is reiterated that the Supreme Court had not issued any directions for the codification of a Common Civil Code.
The Supreme Court's latest reminder to the government of its Constitutional obligations to enact a UCC 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 said Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purpose by will. The bench comprising 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 regrets 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"¬?.
Thus, as seen above, the apex court has on several instances directed the government of realize the Directive Principle enshrined in our Constitution and the urgency to do so can be inferred from the same.
Secularism V\S Uniform Civil Code:
The spine of controversy revolving around UCC has been secularism and the freedom of religion enumerated in the Constitution of India. 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. 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 practiced. It means that religion should not interfere with the mundane life of an individual.
In S.R. Bommai v. Union of India , as per Justice Jeevan Reddy, it was held that "religion is the matter of individual faith and cannot be mixed with secular activities, Secular activities can be regulated by the State by enacting a law"¬?.
In India, there exist a concept of "positive secularism"¬? as distinguished from doctrine of secularism accepted by America and some European states i.e. there is a wall of separation between religion and State. In India, positive secularism separates spiritualism with individual faith.
Article 25 and 26 guarantee 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. 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.
UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is base on the concept that there is no necessary connection between religion and personal aw in a civilized society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them. No religion permits deliberate distortion. The UCC will not and shall not result in interference of one's religious beliefs relating, mainly to maintenance, succession and inheritance. This means that under the UCC a Hindu will not be compelled 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 will be a common law. The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said:
"Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedom are not autonomy but oppression. Therefore, a unified code is imperative, both for protection of the oppressed and for promotion of national unity and solidarity."¬?
Common Civil Code: Need Or No Need?
The four cases of, Shah Bano Begum , Mary Roy , National Anthem and Sarla Mudgal , expose the domination of religion over a community be it Muslim, Syrian Christian or Jehovites. It is a tyranny of the minority over majority. The unity of India would be at stake if religion is allowed to tighten its grip over Indian society. We have been a Sovereign Socialist Secular Democratic Republic and the State has no religion; it favours none and is a foe to none. Humanism is our creed and a Common Law for all Indian is our ideal. We believe and subscribe to rule of law and it is only a Common Civil Code that would help establish the rule of law. It is the panacea for all our ills.
Dr.Ambedkar, the principal architect of the Indian Constitution was of the view that the provision relating to a uniform civil code should be included in the fundamental rights chapter and thus should be made justifiable. However, on the point whether the same should be the committee was divided. Rajkumari Amrit Kaur, M.R. Masani and Hansa Mehta wrote in a dissenting note "We are not satisfied with the acceptance of a Uniform Civil Code as an ultimate social objective. One of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion which keeps the nation divided into water-right compartments in many aspects of life.... a uniform civil code should be guaranteed to the Indian people of five to ten years"¬?.
Uniform Civil Code Bill:-
A Bill on voluntary Uniform Civil Code is almost ready for introduction in the session of Parliament. A voluntary uniform civil code is a contradiction in terms. The moment it is made optional it ceased to be uniform. Any attempt to make the code voluntary or optional must be opposed. Instead of framing such optional civil code, the government would do well to take immediate steps to codify each set of personal laws incorporating therein the requisite reforms making them uniformly applicable to all the members of the concerned community.
The Bill covers personal law relating to marriage, divorce, minority, maintenance, guardianship and succession. The bill would be applicable to those who opt for it. If the bill is passed it would repeal the Special Marriage Act, 1954. The law commission has also proposed consolidation of the Indian Divorce Act and the Indian Christian Marriage Act into one statute on the analogy of the Hindu Marriage Act and has also suggested certain reforms in law.
After such a deliberate discussion it can be said that the mere three words and the nation breaks into hysterical jubilation and frantic wailing. This uniform civil code has social, political, and religious aspect. The UCC would carve a balance between protection of fundamental rights and religious dogmas of individuals. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious and political considerations.
But to conclude, I would like to say that citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only affront to the nation's unity, but also makes one wonder whether we are sovereign secular republic or loose confederation of feudal states, where people live at the whims and fancies of mullahs, bishops and pundits. I strongly support the crusade for the implementation of the UCC and homogenizing the personal laws. I support it, not because of any bias, but because it is the need of the hour. It is the high time that India had a uniform law dealing with marriage, divorce, succession, inheritance, and maintenance.
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1. Law Commission of India, Fifteenth Report,1960
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