Author: Gnanavel.L, III year of B.Com.,LL.B(Hons.) From School of excellence in Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai, Tamilnadu.
Co-author: Vijaykaran.L, III year of B.Com.,LL.B(Hons.) From School of excellence in Law, The Tamil Nadu Dr. Ambedkar Law University, Chennai, Tamilnadu.
“Injustice anywhere is a threat to justice everywhere”- Martin Luther king.
India is a secular country even if the term "secularism" is not defined in the constitution. Secularism has been interpreted differently over time, or perhaps even misconstrued. People from all different religions, including Islam, Hinduism, Christianity, Buddhism, and Sikhism, are found across the nation. Upon the passage of the 42nd Amendment in 1976, it was added to the preamble. Secular refers to a society in which all citizens are free to practise and adhere to any religion without facing prejudice.
UNIFORM CIVIL CODE DEBATE
Historical perspective – The talk for a uniform civil code dates back to the colonial period in India.
Pre-Independence (colonial era)
The October 1840 Lex Loci Report emphasised the value and requirement of uniformity in the codification of Indian law with regard to crimes, evidence, and contract. However, it also advocated for the personal laws of Muslims and Hindus to remain uncodified.
The Queen's Proclamation of 1859, which guaranteed complete non-interference in issues of religion.
Therefore, personal laws continue to be governed by distinct codes for various towns, in contrast to criminal laws, which were codified and made standard for the entire nation.
Post-Colonial era (1947-1985)
A uniform civil code was a demand made during the constitution's development by well-known figures like Jawaharlal Nehru and Dr. B.R. Ambedkar. But because of resistance from religious conservatives and a general lack of awareness at the time, they decided to incorporate the UCC in the Directive Principles of State Policy - Article 44
ORGIN OF UCC
The British government's report from 1835, which emphasised the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts and specifically recommended that personal laws of Hindus and Muslims be kept outside of such codification, is where the UCC first emerged.
The government created the B N Rau Committee to codify Hindu law in 1941 as a result of an increase in laws addressing personal matters at the end of British rule. The Hindu Law Committee's task was to investigate whether common Hindu laws were necessary. The committee proposed a codified Hindu law that would grant women equal rights in accordance with the scriptures.
UNIFORM CIVIL CODE AND THE INDIAN CONSTITUTION
The main issue is that, if the constitution's authors wanted to impose a unified civil code across India, they should not have included it in the Directive Principles of State Policy as part of Article 44 of the Constitution. As the name implies, the State policy concepts outlined in Part IV (Art. 36-51) of the Directive are just guidance for the Government.
They do not have to be closely pursued, and the Court will not enforce them. These are essentially positive responsibilities for the government that will contribute to good governance. According to the Indian Constitution's Preamble, India is a secular, democratic, republic.
This signifies that there is no official religion. A secular state must not discriminate against anyone based on their faith. Religion is only concerned with the human-God interaction. It indicates that religion should not be allowed to interfere with a person's life. As a cause and effect, the secularisation process is inextricably related to the objective of a unified Civil Code.
According to Jeevan Reddy Justice, in the case of S.R Bommai v. Union of India, It was asserted that religion is a matter of individual beliefs and that it cannot be merged with secular rituals and that it can be governed by the government via the passage of legislation. Throughout India, there is a positive secularism principle, as opposed to the notion of secularism espoused by the United States and European countries, in which there is a wall of separation between religion and state.
The Preamble to the Indian Constitution has opted to establish a "Secular" Democratic Republic. This indicates that there is no official religion, or that the state does not operate on the basis of any specific religion and does not discriminate on religious grounds. Articles 25 and 26 of the Indian Constitution, as enforceable basic rights, provide religious freedom and the freedom to conduct religious affairs. Simultaneously, Article 44, which is not legally obligatory in a court of law, specifies that the State shall endeavour to establish a consistent civil code in India.
The problem with having personal laws for all religions is that having personal laws means having special provisions in the constitution for one section of religion and as much as it will cause resentment, it will also cause public enmity towards each other and thus it is important that uniform civil code brings such laws that create a balance between protection of religious principles and fundamental rights of various communities residing in the state. Marriage, support, divorce, and so forth. Should be secular in character, and laws must exist to govern them.
Judicial advancements for the first time in Indian history, the Supreme Court instructed the Parliament to adopt a UCC in Mohammad Ahmed Khan v. Shah Bano Begum in 1985. The court expressed sadness that Article 44 of our Constitution had become a dead letter. A unified Civil Code will aid national unity by reducing uneven loyalty to laws with opposing ideas. This was confirmed in Jorden Diengdeh v. S.S. Chopra, when the Court determined that legislative involvement was required to establish a consistent law of marriage and divorce.
In SarlaMudgal v. Union of India, the court stressed on the necessity for a UCC and declared that members of any community's basic religious liberties would be unaffected. There appears to be a modest movement in the judicial tendency following SarlaMudgal's case. The court in Pannalal Bansilal v. State of Andhra Pradesh underlined that, while uniform legislation is extremely desirable, enacting it all at once may be detrimental to the nation's unity and integrity. In a democratic society ruled by the rule of law, such as India, legislation should be made uniform gradually and gradually, rather than abruptly.
The Government should delegate responsibility to the Law Commission, which should investigate the problem in cooperation with the Minorities Commission and draught comprehensive legislation. The court also stated that its decision in SarlaMudgal's case is not binding and is only a suggestion. However, in the case of V.N. Kharein John Vallamattom v. Union of India in 2003, Chief Justice V.N. Kharein John Vallamattom maintained that an universal civil code will aid the goal of national unification by removing ideological conflicts. In recent years, the courts have undertaken attempts through judicial activism to eliminate gender discriminating behaviours that masquerade as religious traditions.
Recently, on September 23, 2015, the Gujarat High Court in YunusbhaiUsmanbhaiShaikh v. State of Gujarat issued an order prohibiting Muslim polygamy, which it described as "heinously patriarchal." After one month, in October, the Supreme Court in Prakash v. Phulavati ordered an investigation into Muslim personal law practises like as polygamy and triple talaq and ruled them "injurious to public morality." On October 12, 2015, the Supreme Court issued its most recent reminder for UCC implementation. The court noticed "complete uncertainty" as a result of personal laws controlling various religious practises and questioned the Centre whether it was prepared to establish the Uniform Civil Code across the country.
POSITION OF PERSONAL LAWS IN INDIA
The First and foremost aim of the Uniform civil code is having a common code throughout the India for all the Citizens. Generally the personal law deals with the subjects related to marriage, traditions, customs and practices followed in various religions in the country.
The Personal Laws have their Origin from the ancient times. The Personal Laws has a predefined set of rules and regulations that must be followed by the people belonging to that religion.
To deal with further, The Hindu laws in India are the codified laws by the Parliament. The Hindu Laws has separate acts for each areas. Like Hindu marriage Act, The Hindu Minority and Guardianship Act, The Hindu Succession Act,The Hindu Adoption and Maintenance Act etc. The People following Hindu religion are governed under these separate laws.
On other side The Muslim Laws are not still codified and they are traditional in nature. For Example, The Shariat law deals with the personal matters and problems of the Muslim people living in India.
THE CONCEPT OF GENDER JUSTICE THROUGH UNIFORM CIVIL CODE
In reality, it is well recognised that gender inequity is incorporated into the laws of communities. This is a product of the social and economic conditions under which these have grown, and it is one of the important reasons why there is a need to adopt reforms in personal laws or bring about UCC to provide not only equality between men and women, but also gender justice.
Women face several obstacles and traumas when it comes to divorce, marriage, and inheritance. Polygamy, desertion, and triple divorces are some instances that may be utilised to comprehend this. Indian women are only allowed equality in a nominal sense, and that is through the provision of equal political rights under the Indian constitution. Women's position inside their families is pitiful owing to unequal rights.
Within the confines of the family, women's rights are overlooked. If personal rules are mindlessly followed, women would forever be under the power of males, threatening basic foundations of livelihood. If adopted, an universal civil code will establish the groundwork for women to overcome the social ills that present in society, such as the bigamy and dowry systems, which make women feel inferior and humiliated.
UNIFORM CIVIL CODE WITH RESPECT TO SPECIAL MARRIAGE ACT
The Parliament of India established this legislation to create a particular form of marriage for all Indians, regardless of faith. The primary purpose behind this measure was to ensure that people might marry without having to follow the norms and traditions of their own laws. Polygamy was prohibited under this statute. The Indian Succession Act would control divorce and succession. Divorce is governed by specific laws in Goa.
UNIFORM CIVIL CODE IN REPLACEMENT OF PERSONAL LAWS IN INDIA OR NEED FOR UNIFORM CIVIL CODE
The Introduction of UCC will help to stop the alarming religious issues faced in the Country. When a Uniform Civil Code is implemented in India, all Indians will be subject to the same set of civil laws, regardless of whether they practise Hinduism, Islam, Christianity, or Buddhism. There will be no discrimination based on religion, which is the actual rationale behind the concept of secularism.
The UCC will help to reduce the religious discriminations prevalent in the country. The Uniform Civil Code will grant women the right to equality and justice in courts of law, regardless of religion, in matters pertaining to marriage, divorce, and adoption.
It ensures gender equality and provide equal status to all citizens . The Uniform civil code tends to reduce the various dissimilarities in the Personal Laws by replacing civil code . For Example according to Hindu law a male can do only one marriage, whereas in Muslim law a males are permitted to do 2 marriages. Polygamy is permitted under Muslim law, but it is limited to a maximum of four wives. A Muslim man can have up to four wives at the same time. Which appears to be a bane situation where in many cases the Hindu men convert into Muslim for second marriage by which they escape through the loop holes of Law. But
However in Sarla Mudgal,President, Kalyani v/s Union of India, 1995 AIR 1531 the Court held the practise of changing one's religion in order to have a second marriage without dissolving the first was deemed invalid. Because it was contrary to justice, equity, and good conscience.
The UCC helps to uphold the National integration. It assists in getting around the contentious issue of personal law reform. A Uniform Civil Code will improve the status of women in Indian society, which is patriarchal, causing mistreatment of Indian women. It will aid in changing these old customs that have no place in modern India, where women should be respected treated fairly and with equal rights. “A common civil code will help the cause of national integration by removing the contradictions based on ideologies."
The other main need for bringing Uniform civil code is to eliminate the vote bank politics where the politicians used to attract votes through the policies. The misuse of religion for political and election purposes will drastically decrease once all Indians are brought under the purview of a single body of law.
UNIFORM CIVIL CODE IN GOA
Goa is the only state in India where UCC is available to all groups, regardless of gender, religion, or caste. The Portuguese colonists created this code in the nineteenth and twentieth centuries. The state has a uniform family code. Everyone, whether Hindu, Muslim, or Christian, adheres to the same rules on divorce, marriage, and succession. There is little question that Goa is on its path to becoming a prosperous and modern state. In Goa, property is distributed equally between husband and wife, as well as between offspring, regardless of gender. Polygamy and Triple Talaq are not permitted for Muslims who married and registered in Goa. Property shall be shared equally between husband and wife upon divorce. Marriage registration is required in Goa. When Goa was freed from slavery, the government repealed all colonial laws except family law, which was supported by all communities in Goa.
UNIFORM CIVIL CODE IN OTHER COUNTRIES
1.United states of America: US is also an common law country like India. Although it also has an dual form of government there are certain basic civil laws which every citizens are bound to act accordingly irrespective of their religion.
2.Germany: “Burgerliches Gesetzbuch” is the civil law which is followed in the Germany . It was enacted on January 1900. It was considered to be a revolutionary project which gave an end point to the religious discriminations.
3. Islamic Countries: Generally Muslim Countries like Saudi Arabia follow Sharia Laws , but there are some nations like European Islamic states, and middle eastern states like Egypt, UAE, Pakistan, Malaysia, Nigeria, etc they follow the Napoleonic civil code of France and adopted many progressive civil laws which are in harmony and peace with their basic sharia laws.
4. China: The General Principles of Civil Law of China was came into effect on January 1987. It contains both Civil rights and Liabilities under civil law. It deals with Citizen (Natural Person), Civil Juristic Acts and Agency, Legal Persons, Civil Rights and Liabilities.
UNIFORM CIVIL CODE FOR UNITY IN DIVERSITY
As we all knew that our India is a secular country with many religions. But still there is a matter of concern in the area of justice. The personal laws differentiate the people and creates an imbalance in society. Whereas in The Uniform civil code completely avoids that imbalance. But the people think it may affect the religious beliefs. The implementation of UCC will strive for the unity among the people belonging to various religions and destructs the religious inequalities prevailing in the society. The UCC aims at uniting the people under one roof with uniform secular justice. Thus the rule is “One Code, One nation.”
ARGUMENTS IN FAVOUR OF PERSONAL LAWS IN UCC
1.It will unite India- India is a diverse country with numerous religions, cultures, and rituals. A single civil code would help India integrate more than it has since independence. It will aid in unifying all Indians, regardless of caste, religion, or ethnicity, under a single national civic code of behaviour.
2.Will Aid in the Reduction of Vote Bank Politics- A UCC will also aid in the reduction of vote bank politics, which most political parties engage in during every election.
3. Personal Laws Are a Loophole- By establishing personal laws, we have created an other legal system that still functions on values that date back thousands of years. A unified civil code would affect all of that.
4. Indicator of a contemporary progressive nation- It demonstrates that the country has moved away from caste and religion politics. While our economic progress has been substantial, our social growth has lagged. A UCC will help society progress and propel India closer to its objective of being a genuinely developed nation.
5.It will give women more rights- Religious personal laws are sexist in nature, and by permitting ancient religious regulations to dominate family life, we are committing all Indian women to subjugation and cruelty. A unified civil code would also aid in the advancement of women's rights in India.
6. All Indians Should Be Treated Equally- All rules governing marriage, inheritance, family, and land should be the same for all Indians. The only way to ensure that all Indians are treated equally is via UCC.
7.It Promotes True Secularism- A unified civil code does not limit people's right to practise their religion; it just means that everyone is treated the same and all citizens of India must follow the same laws, regardless of faith.
8. Change is a natural law—a minority of people should not be permitted to pick and choose the laws they wish to be administered under. These personal laws were developed in a certain spatiotemporal setting and should not be applied in another period or location.
9.A number of sections of individual personal laws violate human rights.
10.Articles 25 and 26 ensure religious freedom, and the UCC is not opposed to secularism.
A more cohesive legal system will result from the codification and harmonisation of the many personal laws. This will decrease existing misunderstanding and allow the judiciary to administer laws more easily and efficiently.
OBSTACLES IN IMPLEMENTING UNIFORM CIVIL CODE
Our India is a diverse society of various religions, customs, beliefs and traditions. By implementing UCC it may serve as a common platform which may be basic and that affects the rights and beliefs of many religions and culture.
Religious discrimination and hatred speech of other religion which may arise due to the conflict between the minority and majority.
There is no proper awareness among the people. Due to many fake news and religious fights UCC may be assumed as a something which affects the religious freedom of people.
Conflict of Constitutional Articles like 25 to 28 which explains about the freedom to propagate and follow religions which is an fundamental right enforceable in the court of justice. Whereas Article 44 i.e Unifom civil Code is not enforceable in the courts.
No proper initiative by the Government in implementing the uniform civil code. Due to impure politics the corrupted ministers are only aiming to swindle money from the public rather than implementing policies for the welfare of the people of India.
Unwillingness of the Public in following the Uniform Civil Code.
False and fake perceptions that are prevailing around the society.
The process of implementing the UCC Code is an very sensitive task , it involves much concise and proper research , the proper acceptance from the people and the consideration of various Personal Laws.
WAY FORWARD- Suggestions
The personal laws of Hindus, Muslims, Christians, and Parsis are all codified in India. There is no unified family-related law for all Indians in a single statute book that is acceptable to all religious faiths that coexist in India. However, the majority of them say that UCC is highly desirable and would help to develop and consolidate Indian nationhood. The disagreements concern the time and method in which it should be achieved.
Rather than utilising it as an emotional issue to achieve electoral benefit, political and intellectual leaders should endeavour to reach an agreement. The issue is not one of minority protection or even national unity; rather, it is one of treating each human being with dignity, which personal laws have so far failed to achieve. Thus the UCC code is the need of hour.
At last we can arrive at a conclusion that our country requires a unified code to save the secularistic and democratic features. Moreover the uniform civil code binds the people with a unified thought and expression instead of religious discriminations. The main aim of the uniform civil code is to attain equality, unity and common brotherhood among the people. The better awareness about the unified code among the people will ensure a prosperous growth of the society and avoid misconception in the minds of the people. While framing the UCC we should also keep in mind about the other minor religious groups and pave way for an equal society. Also the UCC will put an end to political vote bank dramas and reduce the inequalities prevailing among the people. Thus the implementation of Uniform Civil Code will result in a prosperous and greater development of the Nation.