Author: Ms.Shreya Lal, II Year of B.L.S.,LL.B from KLE College of Law, Navi Mumbai.
Abstract
India has always been the flag bearer of diversification and cultural manifolds. The settlement of foreign man in Indian soil and invasion of other realm inside the nation made it into a cradle of communities and religion. India as a nation till today stands rock solid in spite of variegated religions, communities, beliefs, nationalities, et cetera.
To govern and ensure smooth and sheen working of the nation and by its organs there are various bylaws also commonly known as personal laws made up for different branches of the Society.
Each fold has a different personal law to govern their people and let the good survive in harmony and the evil to pay off for their deeds. All of these laws of different columns lead to renunciation of human rights and humanity in colloquial sense.
The essence of a state resemblance to the great grandeur corollary to the uniform civil code landsus to the scripts of ancient and medieval history of the South Asian subcontinent aiming towards the ancient Vedic Hymns, to the Ashokan edicts also the great Mughal sovereign Akbar, can be said out loud as the predecessors of the Article 44 of the Indian constitution.
Returning to contemporary South Asia, the recent support for the codification of the reiteration seems problematic enough, and even more so in the given context, because in a situation very different from the circumstances that led the Constituent Assembly to use the questioned clause of DPSP, Article 44 reappeared the principle of national policy, even though there were subtle disputes on the floor of the assembly at that time. The paper here analyzes the historicalbackground of the unified civil encoding and formulates a provisional roadmap for such encodedtexts to adjust the optimal balance, so that a unified and complete melody represents the cultural diversity of India in the future.
Keywords: Uniform, civil, code, DPSP, Vedic, India.
Introduction
To start off with the abbreviation of Article 44 of the Indian constitution – UCC also commonly known as the uniform civil code in verbatim means the set of codification of laws of a subject with wide spectrum covered together and written to avoid dispute and draw a line between heterogeneity and homogeneity, also it mainly covers subject of personal laws (laws involved in person) or a group or class of people).
To state and codify the constitution here the article 44 which resides in the part IV of the book which is customarily termed as Directive Principles of State Policy.
‘To step on the front foot of UCC, we may not proceed without a call out for religion.’
From the ages of history till today religion has gained global domination by various means of mythological edicts and also from various realm invasion and resettlement of Homo sapiens across the map.
Religion as taught and preached is about the supremacy of the almighty god, with effects from the ancient times in negligence of decades and centuries. As preached and exhibited the effects of religion can be found in personal laws so as they are created to differentiate between assorted classes and communities.
To renounce about every social and human gathering involving the community, we have personal laws for marriage, adoption, maintenance, inheritance, succession, separation, divorce, et cetera. Religion has resulted in enforcement and formation of personal laws to govern their legality and step forward in the paths of preaching the same.
Indian laws could be bifurcated into two vivid spectrums mainly- Personal law and Lex loci
(alsoknown as law of the land or public law).
The former has a circumference of laws relating or involving an individual in regard to his/her duties, rights, responsibilities and correlation with the state, whereas the latter mentions about the laws that every person should abide to in concern tothe following territorial residence
Dr. B. R. Ambedkar sincerely said in the debates of the Constituent Assembly,
"I personally do not understand why religion should be given this wide and wide-ranging jurisdiction to cover all life and prevent the invasion of this field."
Giving religion such a broad leeway in the judiciary that it cannot be questioned even in the event of a violation of human rights is not a good sign for any country, especially for a country like India, which promotes equality and justiceTherefore, the Uniform Civil Code, a common law for all indigenous peoples in the areas of marriage, divorce, adoption, alimony and inheritance , could be a permanent and wise solution toviolations of people's rights through the abuse of religious beliefs.
The talks and inevitability of Uniform codification resides in the scriptures of personal laws ofdiversity. Religion was initially created for the people to have a firm believer in almighty and asense of strong unambiguous force to govern, help and support the foots on the planet.
The motive of religion as mentioned before was not able to survive in the last few centuries as it hasbeen a strong hand in the upliftment of inequality and discrimination between people whichironically was created to abolish the same and promote the sense of humankind and humanity.The suppression of minorities by the majority or the ruling of minority and war cry of themajority is what religion should not be used for The Preamble of the Universal Declaration of Human Rights (UDHR) states clearly that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom,Justice and peace in the world.
It can be assumed that the issue of the Uniform Civil Code in India is a sensitive issue and requires much thought before it is adopted by the Indian state.
Is the clock ticking to the vivid adoption and acceptance of article 44 or are we still paving andmaking religion sit on the pedestal and mask on inequality and inhumane activities?
The Constitutional Fold
Article 44 of the Constitution of India requires the state to endeavor to guarantee a common Civil Code for its citizens across India. Secular activities, such as inheritance protected by personal laws, must be separated from religion. On the contrary, a uniform law so worked out and applied to all would promote national unity. The Common Civil Code would violate the fundamental right to religious freedom mentioned in Articles 25 and; second, it would amount to minority tyranny.
The first objection is false, because secular activity related to religious practiceis exempt from this guarantee. and since personnel laws (as argued from this point of view) relate to secular activities, they fail within the framework of the state's regulatory power. As for the second point, nowhere in advanced Muslim countries has the personal rights of any minority been recognized as so inviolable as to prevent the adoption of a civil code in Turkey and Egypt. Nominority is allowed to have such rights.
The term civil code is used to cover the entire body of laws that govern. Rights relating to property and other personal matters such as marriage, divorce, alimony, adoption and inheritance. As things are, there are Different laws that apply these aspects to different communities in India. Hence, the laws governing inheritance or divorceamong Hindus in would be different from those for Muslims or Christians, et cetera.
The term Civil Code is used to cover the entire set of laws on property rights and other laws in personal matters such as marriage, divorce, child support, adoption, and inheritance. Hence the laws governing inheritance or divorce among Hindus in would be different from those for Muslims or Christians, etc.
The leaders of India at the time wanted a secular constitution modelled on Western democracy. However, there was no secularism in the western sense, but a "secular" state with religious laws for its religious groups. Through threats from Islamists to keep Sharia law strictly unchanged. Hence, the Muslims and the Christians had to be governed by their own set of laws.
The effect of the Hindu marriage act was to prohibit polygamy amongst Hindus and to increase the right of divorced wife to maintenance or alimony. The act applied to everyone in India except Muslim, Christians, Parsees and Jews. Since Jews and Parsees are a small minority remained de facto the only large community with a distinct religiouslaw that had not been reformed to reflect modern concepts. The legal practice of excluding Muslims continued with the passage of the dowry prohibition act of 1961 which specifically excluded, “dowry” or “mehr” in the case of persons to whom the Muslim personal law(shariat) applies”.
In 1973 on a debate over the revision of the criminal procedure code, it was pointed outin regard to the maintenance of divorced wives that in cases involving Muslims, the court should take note as to whether the woman had received maintenance under the personal law. For Muslims this period is from iddah or 3 months after the divorce. While the period 1950- 1985 can be summarized as a period in which the Muslim personal laws of were exempt from legislation and were not reformed, it can also be seen as a period of in which secular avenues were opened to Muslims to the largest of that was the Special Marriage Act of 1954. The idea behind this law was to give anyone in India the opportunity to get married in outside of personal law, what we would call a civil marriage.
In many ways, Law was almost identical to the Hindu Marriage Law of 1955, which gives an idea of how secularized Law had become in relation to Hindus.
The Special marriage law allowed Muslims to marry under Law and thus to maintain their protection, which was generally beneficial for Muslim women, which was not to be found in personal law. Succession and instead of the respective Muslim personal law divorce is also regulated by secular law and the maintenance of a divorced wife would be based on the rules laiddown in civil law.
The Shah Bano case went to the Supreme Court on April 23, 1985, which ruled that the divorced Shah Bano was entitled to maintenance under Article 125 of the Code of Criminal Procedure (CrPC). The government of Rajeev Gandhi acted swiftly by passing the Muslim Women's Act of 1986, a law that essentially provided alimony for Muslim women outside the Penal Code, ensuring that Muslim women were not protected by the law that they could no longer fall back on Article 125 of the CrPC. Was an improvement over previous divorce rights under Sharia law or Muslim personal laws, which the Shah Bano deemed inadequate. Those who want to reform Muslim personal laws have often cited examples from Muslim countries that such reform is possible.
Tence Farais in his chapter ‘The Development of Islamic Law’, points out that the 1961 Ordinance on Pakistani Muslim Family Law "requires written approval from an arbitration board for a man who wants to marry a second wife". Appointed by the government”. The interesting point about Pakistan is that India and Pakistan were ruled by Muslims under the Sharia law of 1937 from to 1947.However, by 1961, Pakistan, a Muslim country, had reformed its Muslim law more than India did in, and this is still the case today. The demand for a unified civil code essentially means unifying all these "personal laws" into a set of secular laws dealing with these issues that apply to all citizens of India regardless of the community to which they belong. Such a uniform code was not described in detail, it was supposed to contain the most modern and progressive aspects of all existing personal laws and discard the declining ones.
If you look at the countries in Europe that have civil codes, everyone who goes there from all over the world and all minorities have to adhere to the civil code, it doesn't feel tyrannical to the minority.
The main problem is to create national unity in this country. We believe we have national unity, but there are many factors and important factors that still seriously jeopardize our national consolidation. Communalism creates discrimination on two levels: on the one hand, between people of different religions, and on the other, between the two sexes. This dangerous and devastating effect should be eliminated in , possibly through the introduction of a uniform civil code. For women, who make up nearly half of India's population, the Uniform Civil Code provides equality and justice in the courts regardless of religion. in marriage, divorce, alimony, custody, inheritance, adoption, etc.
The only step taken in this direction was the codification of Hindu law, despite the great protest of;
But the codification of Muslim law or the enactment of a common civil code is a sensitive issue because of its politicization.
Merits of UCC
If a Common Civil Code were promulgated and implemented: It would support and accelerate national integration; overlaps of legal provisions could be avoided; Decline in Human Rights Litigation in the World; The feeling of unity and the national spirit would be awakened, and thecountry would emerge with new strength and power to finally meet the defeats of the communal and diversionist forces. Israel, Japan, France and Russia are strong today because of their sense of togetherness, which we still have to develop and spread. India has set itself the ideal of a secular society, and in this context the realization of a unified civil code of becomes even more desirable, such a law will eliminate the diversity of marriage law of, simplify the Indian legal system and become the most homogeneous Indian society. It will separate law from religion, which is a highly desirable goal to achieve in a pattern of secular and socialist society. It will create a national identity and help curb the Fissiparous tendencies in the country. It will contain uniform provisions applicable to all and based on social justice and gender equality in family matters.
According to the Committee on the Status of Women in India: "The continuation of various personal laws that allow discrimination against men and women violates fundamental rights and the preamble of the Constitution, which promises to guarantee all citizens" equal rights and contradicts the spirit of natural integration.
In the committee recommended the rapid application of the constitutional directive in Article 44 through the adoption of a Single Civil Code in the realm of equality and diversity.
Criticism
No urgency: the code is neither a priority nor an indispensable requirement for national integration The code is seen as a long-term social objective Some intellectuals believe that the implementation of the code must logically go through three stages:
The first stage is the codification of the personal law of various notifications, so that over a period of time an adequate comparative legal basis is available, which serves as the basis for the principles of the uniform civil code. Transitional phase of optionality If the code conflicts with the personal laws of a community, the community in question should adopt an Exception received
Operational problems: Ram Jethmalaini speaks in of a serious practical difficulty in adopting a uniform marriage law from most people - the Special Marriage Law of 1954 and preferring formal marriages. Religiously it is difficult, because the proponents of the Code of did not, in his opinion, give serious thought to what the different religious customs of in connection with marriage would look like and look like.
It would not significantly improve India's democratic ideal: In Nepal, the introduction of a uniform civil code has not improved national integration. false It can be argued that a democracy can survive even with the respect of separate personal laws of different communities, it depends on the specific historical experience of the nation and the structure of society, in fact, many democratic nations of the world today flourish without existence. a UCC
Threat to minorities: Some see the code as a threat to their religious identityas the code will seek to amalgamate all people The historical abuse of power by majority communities results in minorities naturally diverging from later reforms, so if you so convincing everyone to be comfortable and accepting a civil uniform law will be a long and burning price in maybe one. which will end in failure.
Judicial Approach
The Supreme Court first ordered Parliament to organize a UCC in the case of Mohammad Ahmed Khan against Shah Bano Begum, popularly known as the Shah Bano case, in 1985, seeking assistance for her husband under Article 125 of the Code of Criminal Procedure after giving her Triple Talaq. She also claimed that Article 44 of the Constitution was still a dead letter.
The then Chief Justice of India, Y.V. Chandrachud stated, "A common civil code will help the cause of national integration by eliminating divergent allegiances to the law withconflicting ideologies"
After this decision, discussions, meetings and riots at the national level. The government led by Rajiv Gandhi overturned the decision in the Shah Bano case by Muslim Women's Law (Right to Protection in the Event of Divorce) of 198628, which restricted a Muslim woman's right to maintenance under Article 125 of the Code of Criminal Procedure. In,to enforce this bill, the Supreme Court merely made a remark to proclaim the UCC; are not binding on the government or parliament and that no interference with personal laws may take place, unless the demand comes from within. Mary Roy v. Kerala raised the question before the Supreme Court that certain provisions of the Travancore Christian Succession Act of 1916 were unconstitutional, under Art.14 Under those provisions, his widow would have a permanent wedlock in the event of death is only entitled to a terminable part of her life in the event of her death or remarriage and her daughter. It has also been argued in that the Travancore Act was superseded by the Indian Succession Act of 1925. The Supreme Court avoided examining whether the gender inequality in inheritance matters violated Article 14, but ruled that the Travancore Act was replaced by the Indian Succession Act. Mary Roy was described as a " momentary "decision towards ensuring gender equality on inheritance issues. Finally, the Supreme Court issued a directive for the Indian Union in Sarla Mudgal v Union of India that Indian leaders did not adhere to the theory of two nations or the theory of three " nations believed in and that therewould be only one nation in the Republic of India and no community could claim to remain the basis of religion in. However, it is worth noting what the Supreme Court expressed in the Lily Thomas case. The Supreme Court has no authority to issue instructions for the application of the Guiding Principles’.
Sinha and Justicia A.R. Lakshamanan cancelled the section and declared it unconstitutional. Chief Justice Khare stated, "We would like to note that Article 44 states that the state will endeavor to guarantee all citizens a unified civil code throughout India,deeply regrets that Article 44 of the Constitution has been enacted, The Parliament has yet to intervene to work out a common civil code in the country.
A common civil code will help the national integration cause by eliminating ideological contradictions". The court recently regrettedwhen hearing a case concerning whether a Christian had the right to bequeath goods to a charity that has not yet implemented a Unified Civil Code. This is not the first time the Supreme Court has spoken out in favor of a Unified Civil Code or had a bad opinion of the government and legislature's inability to say so other occasions, as in the case of Shah Bano case.
However, it should be borne in mind what the Supreme Court expressed in the Lily Thomas case.The Supreme Court has no authority to apply the Guiding Principles. Therefore, to overturn all arrests, it reiterates that the Supreme Court failed to issue instructions to codify a Common Civil Code in July 2003 when a Christian priest knocked on the doors of the Court of Justice to validate the constitutional validity of Section 118 of the Indian Succession Act to contest of Kerala, John Vallamatton filed a 1997 judicial petition finding that section 118 of that law discriminated against Christians for imposing undue restrictions on the voluntary donation of property to religious or charitable purposes.
Chief Justice Khare stated, "We would like to note that Article 44 states that the state shall endeavor to guarantee all citizens a uniform civil code throughout the territory of India”.
Amalgamating the Subject
Rather than a top-down approach to a standalone code, prudence lies in a bottom-up approach to policy making through consensus building on uniformity. clear and unambiguous language in Chapter (Part IV) itself. The application of state policy in the legislative process forms the public order of India. Moreover, the same thing is mentioned in the constitution; the constitutionof the country.
Overall, it can also be read that the UCC was constituted as a public order that the state must follow for better governance, instead of deriving it in a code in the literal sense of the word in the middle (i.e., reducing) from the whirlwind of general concern; In the given context of vigilante justice followed by a recovery through the use of the stick in the literal senseof the word. Thus, despite its legal potential, codification cannot be enforced by the right-wing regime because it was supposed to defeat democracy; while it is a fundamental feature of the Constitution. From ancient times, as also mentioned above, even the greatest rulers like Asoka and Akbar did not resort to coercion to the point of imposing civil practices on their subjects; thesame can be interpreted as the cultural heritage of India. Under the given circumstances, the Unity Principle can slowly but steadily be introduced through amendments to the laws currently in force and not as a stand-alone legal act.
Cluster coding for uniformity instead of crocodiles cry out for a de novo code born with minority fire and fury will likely cope better with wandering patriarchs within a creed; with the same law of the land, albeitin pieces, used as a cane to domesticate them if necessary, so that the purpose and purpose of Codification of Article 44 of the Constitution can be achieved without recourse to legislative building blocks. and mortar for another room in the house, which is already crammed with statutes.
"By making countless statutes, people just confused you what God achieved in ten." The pure form of religious practices has been transformed into certain unorthodox religious practices that are unclean from cruel spirits”
Endnotes
Anand, Utkarsh (15 March 2021). "Has the Supreme Court set the ball rolling for a Uniform Civil Code?". Hindustan Times. Retrieved 21 April 2021.
^ Shimon Shetreet; Hiram E. Chodosh (December 2014). Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse. Oxford University Press. ISBN 978- 0198077121. Retrieved 22 August 2020.
^ "Article 44 in the Constitution of India 1949". Retrieved 22 August 2020.
^ Rina Verma Williams (2006). Postcolonial Politics and Personal Laws. Oxford University Press. p. 18, 28, 106, 107, 119. ISBN 0195680146.
^ Jump up to:a b Ramchandran, Smriti Kak (6 August 2020). "BJP, RSS hope for consensus on Uniform Civil Code". The Hindu. Retrieved 22 August 2020.
^ Banerjee, Anil Chandra (1984). English Law in India. Abhinav Publications.
p. 134. ISBN 978-81-7017-183-6. Archived from the original on 17 February 2017. Retrieved 26 September 2016.
^ Jump up to:a b Sarkar & Sarkar 2008, p. 2–3.
^ Jump up to:a b Sarkar & Sarkar 2008, p. 93.
^ Sarkar & Sarkar 2008, p. 263.
^ Jump up to:a b c d e f Lawrence & Karim 2007, p. 262–264.
^ Jump up to:a b c Chavan & Kidwai 2006, p. 87–88.
12. ^ Chavan & Kidwai 2006, p. 94–100.
13. ^ Jump up to:a b c d Chavan & Kidwai 2006, p. 83–86. 14. ^ Samaddar 2005, p. 50–51.
^ Jump up to:a b Singh, Shiv Sahai (1 January 1993). Unification of Divorce Laws in India. Deep & Deep Publications. pp. 7, 287–288. ISBN 978-81-7100-592-5.
^ Jump up to:a b Chavan & Kidwai 2006, p. 90, 94–100.
^ Jaffrelot, Christophe (14 August 2003). "Ambedkar And The Uniform Civil Code". Outlook India. Archived from the original on 14 April 2016. Retrieved 29 March 2016.
^ Pathak, Vikas (1 December 2015). "Ambedkar favoured common civil code". The Hindu. Archived from the original on 28 November 2016. Retrieved 29 March 2016.
^ Jump up to:a b c d e Sarkar & Sarkar 2008, p. 480–491.
^ Purandare, Vaibhav (8 September 2017). "How Muslim fears were allayed, and the UCC became a directive principle". The Times of India. Archived from the original on 11 September 2017. Retrieved 13 September 2017.
^ Jump up to:a b c Samaddar 2005, p. 56–59.
^ "The Special Marriage Act, 1954". indiakanoon.org. Archived from the original on 21 July 2020. Retrieved 16 September 2020.
23. ^ Lawrence & Karim 2007, p. 265–267.
^ Jump up to:a b c Samaddar 2005, p. 60–63.
^ Jump up to:a b Ojha, Drishti (11 April 2021). "Plea In Supreme Court Seeks Transfer Of Plea For Uniform Civil Code From Delhi High Court To SC". LiveLaw. Retrieved 21 April 2021.
^ Jump up to:a b c d e f Chavan & Kidwai 2006, p. 13–20.
^ "Call to implement Goan model of civil code". New Indian Express. 15 May 2012. Archived from the original on 8 May 2014. Retrieved 22 October 2013.
^ Boyle, Kevin; Sheen, Juliet (7 March 2013). Freedom of Religion and Belief: A World Report. Routledge. pp. 191–192. ISBN 9781134722297. Archived from the original on 13 May 2016. Retrieved 16 September 2015.
^ The Constitution of India, Right to Freedom of religion, Article 25 (PDF), archived from the original (PDF) on 21 June 2014
^ Anand, Utkarsh (13 October 2015), Uniform Civil Code: There's total confusion, why can't it be done, SC asks govt, New Delhi: The Indian Express, archived from the original on 15 October 2015, retrieved 13 October 2015
^ IANS (30 November 2016). "Muslim intellectual proposes a revolutionary Uniform Civil Code". The Statesman. Archived from the original on 1 December 2016. Retrieved 30 November 2016.
^ Ahmad, Tufail (30 November 2016). "My blueprint for the Uniform Civil Code". DailyO. Archived from the original on 30 November 2016. Retrieved 30 November 2016.
^ Anand, Hardik (28 May 2018). "Amend Hindu Marriage Act to ban same-gotra marriages: Khaps". Hindustan Times. Retrieved 13 August 2021.
^ "Uniform Civil Code: Another nail in the coffin to satisfy the facade of party manifesto". India Legal. 23 July 2020. Retrieved 14 September 2020.
^ Jump up to:a b Jigeesh, AM (6 December 2019). "After objections, BJP member withdraws Bill for UCC". The Hindu Business Line. Retrieved 22 August 2020.
^ Chari, Seshadri (16 August 2019). "Modi govt has been working for a Uniform Civil Code and we didn't even notice. Until now". The Print. Retrieved 22 August 2020.
^ Joy, Shemin (13 March 2020). "BJP MP once again does not introduce Uniform Civil Code Bill". New Delhi: Deccan Herald. Retrieved 14 September 2020.
^ Sharma, Vibha (6 August 2020). "UCC next on Modi govt agenda?". The Tribune. Retrieved 22 August 2020.