Abstract: Universal Civil Code How UCC will be impacting India
Universal Civil Code : India is a diverse nation and to maintain its integrity we must need uniform laws to govern every individual without discriminating against them on the basis of their caste, race, and religion. In India all the religions are equal be it Hinduism, Islam, Buddhism, Jainism , Sikhism, Christians and so on. Every individual has the right to practice their religion and it is safeguarded under article 25[1] of the Indian constitution. We even have uniform laws which are applicable equally to every citizen but still there are many personal laws or acts that are discriminatory in nature and are not applicable to the citizens of the nation equally. The discriminatory acts must be eradicated but as India has a vast diversity many people oppose the uniform civil code that will be applicable to each and every one. For example in Nagaland, Mizoram and Meghalaya the natives oppose the Uniform civil code and they believe that it will hamper their unique culture and will interfere with their customs. On the other hand Muslims law board is conservative and they believe that uniform civil code will be against their ethical practices. Even after 76 years of Independence we still do not have a uniform civil code which is quite a matter of concern for the integrity and value of India. On the other hand Goa is the Only state which has Uniform civil code of their own and whoever resides in Goa must oblige them without validating their religious or cultural norms. The current ruling party BJP always mentions bringing Uniform civil code for one law-one nation and it has also been mentioned in their election manifesto still it is not implemented yet. In the research paper we will be focusing on why uniform civil code is important for the integrity of Indians and what are the backlogs we are still facing following we will also be dealing with the probable solutions and conclusion.
Introduction: Universal Civil Code
The history behind the uniform civil code is dated back to the colonial era (1840), when the Britishers established uniform laws like CPC, CrPC, IPC, EVIDENCE and so on. However, the personal laws of religious communities like Hindus and Muslims were left out because of the politics of the Britisher’s to divide and rule India.
If personal laws would have been modified then people of India might have come together and the colonizers would have faced backlash for it. After independence the then PM Jawaharlal Nehru and his supporters all wanted a Uniform Civil Code on the other hand Babasaheb Ambedkar was the law minister and proposed to pass the Uniform civil code bill. However he faced severe backlash in the parliament and resigned. Thereafter, Jawaharlal Nehru proposed to pass the Hindu code bills which will govern hindus, sikhs,buddhist and jains, he also said that It is the beginning of bringing uniform civil code. With the bringing of the law the then government faced severe backlash from the Hindus specifically the RSS.
The women in the parliament who previously supported the bill also tried to reverse it and thus the bill got diluted and a different version of it was then passed in 1956. Nehru said that this is not the right time to pass laws for the Muslims and with the Hindu code bill he is preparing the grounds for it. After a brief discussion in the drafting committee in the ratio 5:4 it was decided that uniform civil code will be kept under the directive principles of state policy in article 44 of the constitution.
Later in the case of Shah Bano Begum[2] who got divorced after 40 years of marriage and having 5 kids from her husband, she filed a petition for her maintenance. As per the sharia law a muslim woman is subjected to maintenance up to 3 months only and after that period she cannot claim the maintenance. Thus the Supreme Court of India in its five judges bench gave the landmark judgment that Muslim women got the right to get maintenance for a longer period of time like any other Hindu woman. However, the then government rolled down the supreme court judgment and made it mandatory that a Muslim woman will get maintenance only up to 90 days. It was also observed that under section 494[3] If a man marries another woman while the spouse is still alive then he will be charged against bigamy though it also has an exception for the muslim man as in their personal law it was allowed to marry four wives which was contradictory. The law is not only discriminating one from another but also it is violative of the article 14 and 15 of the constitution hence, Personal law can never be superior to the constitution of india.
Literature review: In the article “A Uniform Civil Code in India: The State of the Debate in 2014”[4] The author is advocating that the ruling party is trying to bring uniform civil code but the woke pseudo feminist are against it. It is also mentioned that most of the personal laws discriminate against women. The article 44 of the directive principles of state policy also mentions about the integrity of all the Indian citizens. Hindu law is merely codified and not reformed. It can be concluded that these laws are codified for the vast and divergent use of all.
In the article “The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda” by Werner Menski the author expresses that the recent development in Indian laws are inspired by western countries and India is developing laws according to the socio-cultural situation. He further states that his paper is a guidance to the European lawyers as to how to balance Uniform laws with such a huge diversity rather than relying on state based laws. It has been mentioned that in the west the people struggle to maintain old and news laws with such a huge cultural diversity on the other hand India appears to have discovered a peaceful way to deal with these long-standing cultural differences and the ensuing plurality of personal laws, allowing for diversity in certain crucial areas where it is important while tightly regulating other areas. The Indian system is patriarchal in nature and most of the females are dependent on a male. Even in modern western countries the society is patriarchal and gender discrimination can be seen. Indian states are no better than this.[5]
In the article “uniform civil code a suggestion” by DC Manooja she wants that there needs to be a clear separation made between religious activities and religious faith. The state defends religious convictions and religion. If religious practices interfere with public order, morality, health, or a state-implemented social welfare policy, they must give way for the good of the state’s residents. The personal laws are a direct blow against our uniformity and integrity and must be discarded as soon as possible. It is believed that all citizens must be governed by the same rules and principles of the country. Germany , France, Canada etc. are some of the countries where uniform civil laws are running successfully. If Britishers could have implemented uniform civil laws based on adoption, marriages and succession then most of the problems could have been solved. The present government should take initiative to implement uniform civil codes fulfilling the positive obligation by article 44 of the constitution[6].
In the article “Scope For The Implementation Of Uniform Civil Code In Contemporary India:
A Suggestion” by Megha ojha she mentions that in India the only way to secularize the people is bringing uniform civil code. A Uniform Civil Code will bring equality for all the people regardless of their caste status and religion. Religious laws are mostly misogynistic thus UCC will bring equality for women and transform old customs that should be discarded in this modern era. She provides that people should be encouraged and programmes regarding UCC must be organized to educate people about it as well as while drafting the UCC we must keep in mind not to hurt other religions feelings. It is emphasized that this is the correcttime that India should accept uniform laws and muslims of this country should support the general cause for a better India.[7]
Problem area: The articles that are discussed mostly cover that UCC will bring uniformity and end discrimination among people. However, the question still remains, “ how will UCC be Implemented in our country with such diverse religions and cultures with age-old customs?” and “what are the aspects that we might face while implementing the laws?”
Hypothesis
In India, there are different sets of personal laws such as Hindu personal laws, Sharia law, Parsi law, Christian law etc. Muslim law views marriage as a “contract,” while Hindu law views it as a “sacrament” , in Parsis registration of marriage is a vital ritual whereas in Christians divorce is stigmatized. In India people trust and believe in their religious customs more than anything therefore it is difficult to implement UCC. There are many customary laws practiced by ethnic groups in the North East as well. under article 371A[8] Nagaland, under article 371G[9] Mizoram, under article 371B[10] Assam and under article 371D[11] Arunachal pradesh enjoys certain special laws. They believe that with UCC they will no longer be able to enjoy special powers thus, they always oppose UCC. With such a huge and diverse socio-religious culture it is quite tough to implement UCC.
How will UCC be Implemented in our country with such diverse religions and cultures with age-old customs?
Uniform civil code aims to establish uniform laws for all the citizens of India regardless of their ethnicity, religion, caste and gender. It will promote universal brotherhood among all the citizens of India and bring a revolutionary change in the personal and customary laws. Article 44 declares that “the state shall endeavor to secure a UCC throughout the territory of India”.
However it is not possible to bring uniformity through state legislation and the state may have a talk with the center regarding implementation of UCC. It is impossible to achieve something constructive by using the idea of UCC as a merely intellectual exercise or as a way to eliminate the evil nature of the legal system for personal gain, thus it is necessary to uplift the obligation of article 44 we must eliminate the personal gain of the people.
The ultimate goal must be to stop discrimination on the basis of their caste or religion. India is a diverse nation with different religions and ethnicity and thus to achieve common good for all there must be a progressive, fair, widespread, and family-oriented code. It is also preferable for UCC to promote nationalistic devotion by uniting people.
The primary cause of the inability to execute the UCC in India even after independence was undoubtedly the significant difficulties the framers of the Indian Constitution encountered in trying to bring all the religions together. UCC can be implemented even without bringing a different Uniform code, the state has huge power to amend laws thus it can amend the discriminatory provisions of every personal or customary law and make it even but the idea to amend each and every personal law is also very hectic thus bringing one common law will reduce the burden of the legislation as well as of the judiciary.
The ethnic groups in Nagaland, Mizoram, Assam etc must be assured that the changes related to uniform civil code will not hamper their personal laws. The minority groups must be assured that their religious sentiments will not get hurt. Beside this we must accept the fact that there will be people that do not want the reform and there will be people who want a change thus accepting the fact and taking all the criticism and bringing the law for the betterment of the society is more important. Further, a law with its greatness might change people’s mentality over time.
Also Read Fractional Share in India : A Step in the Right Direction ?
What are the aspects that we might face while implementing the Universal Civil Code ?
There are several challenges that might come up while implementing Universal Civil Code.
- Resistance from religious groups: uniform laws are purely for the betterment of society and to reduce the discrimination that has been growing with different set of rules for different religion it is important to bring UCC but it is evident that the religious groups will surely oppose it on the basis of communal differences between the hindus and muslims. Some of the religious gurus or teachers try to fuel the people by discriminating that the Hindus are in majority and if UCC will be implemented then the minority might face severe backlash and they will lose their fundamental rights as well.
However, we have seen that even during the 1950’s the Hindus did not codify their respective personal laws and it was a joint decision of the parliament. The goal of secularism won’t be achieved until the requirement found in Article 44 of the Constitution is given priority by the right to practice one’s religion and certain religiously-based customs. - Repeal from opposition: The now ruling party BJP has always been uplifted to implement UCC and it is also in their election manifesto to bring UCC but a severe backlash can be seen from the opposition who will obviously for certain political reasons or political agenda will repeal this law. The political parties argue that the article 44 violates the freedom of conscience and free profession, practice and propagation of religion under article 25 of Indian constitution.
It will bring communal tension and that is very problematic for a civilized society. Each party has its own agenda thus it is very common for a law to get repelled or face backlash by the opposition and in a healthy Democracy there should be opposition but we have to accept that to really attain secularism we have to bring one law for one nation. - Challenges on implementation: Even if the bill is passed and becomes an act it might face difficulties while implementing so. as religious minorities might practice their own personal law. Ethnic groups might not accept it soon after implementation but it is believed that after getting recognition and equal rights most of the people will accept it without any difficulty.
- Drafting of uniform civil code: The many personal laws and practices in India would need to be extensively drafted, codified, harmonized, and rationalized in order to implement UCC. Drafting a uniform civil code will require an extensive participation of both religious leaders from every community, women representatives from throughout the country and political leaders with great vision to transform the nation. It must be seen that the code is consistent with the principles of equality, fraternity, justice and fundamental rights of our constitution.
- Acceptance by the common people: The most important part is whether UCC will be accepted by the common people of India or not. The implementation must not be regarding political polarization. while implementing it must be kept in mind that this law must be accepted and welcomed by every citizen. Everyone should be educated about the promising code and its benefits. The people who always promote Untouchability and secularism along with universal brotherhood will accept the law.
Important case laws:
In the landmark case of Danial Latifi vs. Union of India[12], Danial Latifi questioned whether some of the clauses of the Muslim Women (Protection of Rights on Divorce) Act, 1986 were constitutional. The Act was created in order to defend Muslim women’s rights following their spouses’ divorces. For the first time, it was declared that a Muslim husband is still required to support his divorced wife even after her iddat[13] period has passed. In this instance, it was also decided that Muslim women are entitled to the same benefits as Hindu and Christian women under Section 125 of the Criminal Procedure Code of 1973.
In the case of Ms. Jordan Diengdeh vs. S.S. Chopra[14], The wife, who was the petitioner before , was raised as a Presbyterian Christian in Shillong and claims to be a member of the “Khasi Tribe” of Meghalaya. The spouse follows Sikhism. They were married in accordance with the Indian Christian Marriage Act of 1872. The petitioner wife filed the case for the nullity of their marriage. The Supreme Court observed in this case that marriage-related laws, such as those pertaining to judicial separation and divorce, are not uniform in India. As a result, the Court emphasized the significance and necessity of enacting uniform marriage-related laws, such as those pertaining to irreversible dissolution of marriage and mutual consent for divorce to all situations, regardless of religion
In the case of Union of India vs. Sarla Mudgal[15], The case concerns the practice of bigamy and the conversion of a Hindu husband to Islam with the express intent of getting married again while maintaining a relationship with his first spouse. As the husband practiced polygamy after converting from Hinduism to Islam, his wife filed a complaint against him for it. Even though a second marriage is permissible in islam but converting in a different religion only for the sole purpose of marrying another woman is unconstitutional. The court held that According to the provisions of the Hindu Marriage Act of 1955, “the second marriage would be void, if it was solemnized before the court declared the first marriage null and void or by cancellation of marriage by decree of divorce, and he will be punished under the provisions of section 494 of Indian Penal Code for bigamy.”
In the case of John Vallamattom vs. Union of India[16]. John a christian priest, filed a writ petition claiming that the Indian Succession Act, 1925 is discriminatory for the christian community. He argued that section 118 of the Indian Succession Act, 1925 places unreasonable restrictions on the free giving of property for philanthropic or religious reasons though it does not apply to members of Hindu, Mohammadan, Buddhist, Sikh or Jaina Community by virtue of section 58 of the Act. The supreme court of india declared that section 118 of Indian Succession act is unconstitutional.the Sc also emphasized the need for an Uniform Civil Code.
Analysis of arguments for the topic:
- Under article 14, 15, 16, 17, 18, it provides the right to equality, forbids discrimination based on any number of factors, regards all applicants for public employment equally, and does away with titles and untouchability respectively. However, the spirit of equality is being violated with different personal laws like succession, marriage, divorce, adoption etc., of each community.
- It is advocated that when the law of the land is different for different people how can the people feel equal in every aspect. The law of the land must not be divisive in nature and should be uniform for all the people.
- The Uniform Civil Code will bring all communities together and everyone will be governed by the same law. It will reduce the burden of the Indian judiciary and legislation.
- Muslims in India can marry more than one wife and most of the men defend that it is their religious right and thus they can practice polygamy however, ironically muslim countries like Turkey, Morocco, Syria, Iran etc have totally prohibited the practice of polygamy. It is believed that with time even religious belief must be kept aside and we should uplift the Indian constitution.
Analysis of arguments against the topic:
- The right to practice religion is our fundamental right and with uniform civil code the religious right might vanish and secularism in the country will not prevail.
- If the government is really concerned about the equality of every religion they must focus on the backward community and should educate and work on these fields rather than bringing UCC.
- It can be observed that Muslim women do not get justice when the matter of divorce, marriage or maintenance arises. However it is advisable that the women should be aware about their rights and raise their voice because no matter how better the law becomes it is the women on whom the rights are vested and unless they intervene the state can not help.
Conclusion:
The article 44 in The Constitution Of India 1949 declares “Uniform civil code for the citizens The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. It brings a hope that one day India will be governed under one law and there will be no discrimination among people. There are alot of religious issues that we might be facing but the social issues are more concerning.
They talk about the rights of women, children and minority groups who face social discrimination even in the judiciary. To attain secularism the state must not prevail over personal laws and must focus on UCC. The people with rational thinking will always praise secularism and will always support a good cause for the country. UCC will bring national integrity, equality, fraternity and justice. It will promote gender equality and will remove gender discrimination.
The women will be more empowered and will not face any injustice due to the personal laws. It will make the law more understandable by removing complexities and simplifying the loopholes which arise due to the complex personal laws.
It is important for us to eradicate age old customs and replace them with the modern age. However, it will always depend upon the government to mandate the UCC. If the government makes it compulsory that every person should maintain a two child policy it will surely boost the economy and slowly people will start accepting it. In the same way the government should try to listen to what the citizens of India want and should try to implement accordingly. Uniform civil code will surely promote integrity and secularism throughout India however, it must be taken care that while implementing it must not hamper the harmony of India.
[1] Article 25: Freedom of conscience and free profession, practice, and propagation of religion
[2] Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556
[3] IPC 1860
[4] Project MUSE <https://muse.jhu.edu/article/829170 > last visited on 7th december.
[5] Werner Menski, The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda, Vol.09, GERMAN LAW JOURNAL, 211, 2008.
[6] The Indian law institute , <http://14.139.60.116:8080/jspui/bitstream/123456789/17815/1/029_Uniform%20Civil%20Code_A%20Suggestion%20%28448-457%29.pdf > last visited on 8th december 2024
[7] archives.palarch.nl < https://archives.palarch.nl/index.php/jae/article/download/8962/8329/17682 > last visited on 8th december 2024
[8] Special provision with respect to the State of Nagaland.
[9] Special provision with respect to the State of Mizoram.
[10] Special provision with respect to the State of Assam
[11] Special provisions with respect to the State of Andhra Pradesh or the State of Telangana.
[12] Indiankanoon.com, <https://indiankanoon.org/doc/533870/ > last visited on 9th december 2023
[13] Wikipedia <https://en.wikipedia.org/wiki/Iddah#:~:text=In%20Islam%2C%20iddah%20or%20iddat,may%20not%20marry%20another%20man.> last visited on 9th december 2023
[14] 1985 AIR 935, 1985 SCR Supl. (1) 704
[15] Supreme court of india < https://main.sci.gov.in/jonew/judis/10742.pdf > last visited on 9th december 2023
[16] Indiankanoon.com < https://indiankanoon.org/doc/533870/ > last visited on 9th december
