ANALYSIS OF UNIFORM CIVIL CODE
Updated: May 11, 2021
Author: Dharam Deepak Vishwash, IV year of B.A.,LL.B from Central University of South Bihar.
Co-author: Shubha Nandini, IV year of B.A.,LL.B from Central University of South Bihar.
Uniform civil code means having a common set of laws governing marriage, divorce, succession and adoption for all Indians, instead of allowing different personal laws for people of different faiths.
The aim of such uniformity is meant to be ensuring equality and justice for both men and women, who are often denied their rights in marriage, divorce and inheritance under patriarchal personal laws.
The British government in 1840 on the basis of Lex Loci's report had made uniform laws for crime, litigation, evidence and contract, but the personal laws of Hindus and Muslims were deliberately left out. On the other hand, the British India Judiciary provided for the implementation of Hindu, Islamic and English law by British judges. Also, in those days reformers raised their voices to impose laws against women against religious discrimination such as Sati, etc.
The Constituent Assembly was established to incorporate our Constitution in 1946 in Independent India, having both types of members: those who wanted to change society by adopting the Uniform Civil Code as Dr. B. R Ambedkar and others who represented the Muslims’ personal laws. Also, supporters of the Uniform Civil Code were opposed by small communities in the Constituent Assembly. As a result, only one line is included in the Constitution under Article 44 in Part IV of the DPSP (Directive Principles of State Policy).
Broadly classifying law is of two types – criminal and civil law – which are universally applied law, they do not depend on any religion. However, there is other set of laws which deal with marriage, divorce, adoption, maintainence, succession and inheritance etc. Any of these laws are called personal laws and are non-uniform in nature.
A Uniform Civil Code is not for civil laws, but it is for the concept of personal laws. These laws are not a universally applied law but are based on the religion of a person. The Uniform Civil Code as articulated under Article 44 of the Constitution states that:“The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” A Uniform civil code strives that the states must try or take steps to carry out same personal laws
Call for Uniform Civil Code
In 1956, in order to have a common public code nationwide, it was added as a guiding principle to the Constitution. Earlier, the UCC was incorporated into Article 35 but was renamed Article 44 of the Constitution. From the beginning itself, UCC has been neglected by independent governments. This was followed by the trial of Shah Bano, which was a landmark judgment.
Mohammad Ahmed Khan v. Shah Bano Begum, better known as Shah Bano Case. In this case, Shah Bano moved to the Supreme Court to seek maintenance under section 125 of the Code of Criminal Procedure when her husband divorced her after 40 years of marriage by giving her three times talaq and denied her regular maintenance. The Supreme Court has ruled in favor of Shah Bano in terms of section 125 of the Indian Criminal Code and is applicable to all citizens regardless of religion. Thereafter, the Chief Justice, Y.V Chandrachud, saw that the Common Civil Code would help the cause of national unification by removing unconstitutional loyalty. Therefore, the court ordered Parliament to organize the UCC.
On the other hand, the Rajiv Gandhi Government was not satisfied with the court's decision; Instead of supporting it, the government enacted the Muslim Women's Act (Protection of Divorce Rights), 1986 to overturn the Supreme Court decision in the Shah Bano case and sanction the Islamic Law on divorce. In the act, it was stated that a Muslim woman has the right to care for only three months after the divorce, e.g., and then transfer her maintenance to her relatives or to the Wakf Board.
In the case of Sarla Mudgal v Union of India, the question was whether a Hindu husband, married under Hindu law, could adopt a second marriage by converting to Islam. The Supreme Court ruled that accepting Muslims for a second marriage was a violation of personal laws. He further added that Hindu marriage could be dissolved under the Hindu Marriage Act, 1955, which is by converting to Islam and marrying and not ending the marriage under the Hindu Marriage Act, and therefore, it would be an offense under Section 494  of the Indian Penal Code.
Many PILs have been filed in the court in the past following this landmark decision. Time and again the Supreme Court has asked for the reply from the center. The recent PIL filed before the court was for gender and religion-neutral law conferring succession and inheritance rights to the citizens. The Supreme Court has asked for a response to the institution from the above PIL seeking neutral and religious reasons for succession and inheritance across the country.
It was led by 3 judges of the bench, and a notice was issued to the Ministry of Home Affairs Law and Justice and also women and child development on the plea. The petitioner argued that inheritance and succession are crucial as they impact life, liberty and dignity guaranteed under Article 21. The constitution is silent on the definition of the term religion.
Generally, religion is in the domain of spirituality mode of prayers and rituals to connect to God, whereas personal laws are different from religion, they deal with marriage, divorce etc. It is important that we have a uniform and universally accepted definition of religion so that personal laws and religion can be segregated from each other. It is said that women’s rights groups saw merit in the idea of a uniform civil code, which could provide women with rights not granted under the Hindu Code Bills, the Muslim Personal Law or other personal laws.
Role of the Supreme Court in paving the way for UCC
In the decision of the Juvenile Justice (Care and Protection of Children) Act, there appears to be an attempt to move to the UCC. As it opened the way for the adoption of children by people from Muslim communities even though they were not allowed under their laws. The Supreme Court of India has also asked the Union Government to establish a UCC to eliminate gender inequality and end the practice of retaliation under the framework of personal laws.
During the Constituent Assembly debates, KM Munshi, Alladi Krishnawamy and Ambedkar supported the UCC. While Muslim leaders contended that it would not be appropriate to give importance to UCC instesd of personal law, Alladi was of the view that it would bring peace amongst the people and also a sense of unity. Munshi while supporting the UCC also said that it is important to uphold the social credentials of the nation.
While supporting Alladi’s views, during Constituent Assembly debates, Ambedkar said that, “There was nothing new about the Uniform Civil Code."There already existed a common civil code in the country except for the areas of marriage, inheritance — which are the main targets for the Uniform Civil Code in the Draft Constitution.”
Religious fundamentalism runs very rampant in our society. Throughout our history a large group of people have been oppressed by these religious fanatics and justice in any form has been denied to them. To a great extent patriarchal stereotypical notions have contravened principles of gender justice and gender equality, women and children often being a victim of it. Any kind of discrimination on the basis of this is the denial of basic rights of the citizens. Removal of all these kinds of discrimination would not be against democracy but for the equality of the country through which nation building would even get more facilitated.
Recently, the law commission said that it is not possible or maybe it is not feasible to have a Uniform Civil Code, but there needs to be some common ground which can be arrived by talking to the religious groups. As india is primarily a religious country, it important to ensure that everyone respects each other’s religion and believes in the spirit of secularism and accept a proper Uniform Civil Code.
We are unity in diversity, when we have got same criminal and civil laws, then why not personal laws? The visions of the forefathers cannot be completed overnight but gradually and step by step with behavioural changes and proper education. Maybe it won’t turn the country into a utopian society but would definitely decrease the formation of religious cult. This is the time that everybody should come on board and fulfil the unfulfilled dreams of the founding fathers of the constitution.
Uniform Civil Code would be an ideal safeguard of citizen’s rights. Its adoption would lead to progressive legislation. While the society is progressing, the need has arisen for having a Common Civil Code for all citizens, irrespective of religion, ensuring that their fundamental and Constitutional rights are protected.
Even Secularism and National Integrity can also be strengthened by introducing UCC. As UCC will give equal status to all citizens irrespective of their caste, religion, gender and along with these people will be able to utilise their potential towards nation building. UCC is also important for the nation-to-nation integration and to solve the existing personal laws.
Although people see the UCC as the barrier to enjoy their old custom, but it will help the nation to have a common law system for better functioning and development. Goa is the best example within India where the Uniform Civil Code is being followed very smoothly, and it helps to create a good atmosphere for people of different religion by giving them equal rights.