India is a diverse nation with its population having multiple religions, languages, traditions and culture who are governed by their own personal laws. There are many different codes for different communities such as Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and Maintenance Act, Hindu Guardianship Act, Muslim Personal Law (Shariat) Application Act, Indian Christian Marriage Act etc. Predicting the issues that the country would face due to the practice of distributing justice based on religion, our constitution framers took decisive steps towards national consolidation in form of the idea of Uniform Civil Code which was mooted for the first time in the constituent assembly in 1947.
Uniform Civil code was stipulated through article 44 of the constitution of India which envisaged that State was to secure for the citizens a uniform civil code throughout the territory of India. Through this article an attempt was made to unify the Personal laws of the country, i.e., uniformity in law in matters of marriage, divorce, succession, irrespective of religion, community, etc. But it has been 72 years since Independence but we are still a long way from achieving Uniform Civil code.
Before Independence, the Britishers felt the need of uniformity of laws in India so they pondered on various ways to enact the same. The Lex Loci Report of October 1840 stressed the importance and necessity of uniformity in the codification of Indian law, relating to crimes, evidence and contract. But it also recommended that personal laws of Hindus and Muslims should be kept outside such codification.
The idea of Uniform Civil Code was introduced into the national political debate in 1940, when a demand for such a code was made by the national planning committee appointed by the Congress. During the drafting of the constitution, prominent leaders such as Jawaharlal Nehru and Dr B.R Ambedkar pushed for a uniform civil code. However, they included the UCC in the Directive Principles of State mainly due to opposition from religious fundamentalists and a lack of awareness among the masses during the time.
Subsequently India being party to various International treaties and bodies such as Human right commission and The Convention on the Elimination of All Forms of Discrimination against Women, more emphasis was given to Article 44 which directs the state to secure for its citizens a Uniform Civil Code throughout the territory of India which forms the cornerstone for women’s equality in the country and so as to eliminate antiquated discriminatory norms of religion laws.
THE ISSUE OF SECULARISM VS. UNIFORM CIVIL CODE
Preamble of the Constitution states that India is a Secular democratic Republic. The word Secular was inserted by the 42nd Constitutional Amendment, 1976. This mean there is no state religion. The process of secularization is intimately connected with the goal of Uniform Civil Code like a cause and effect.
The secularism in India is different from that of Doctrine of Secularism by America and some European states. As America and some of the European states has underwent the stages of renaissance, reformation and enlighten , therefore, they can enact a law stating that the state shall not interfere with religion, but in India state has to interfere to remove the impediments. In the Constitution of India, Article 14, 15, 16, 25 and 27 makes clear that the state is barred from patronizing any religion.
UNIFORM CIVIL CODE- JUDICIAL APPROACH
Article 44 of the Indian Constitution makes it obligatory on the part of the state to secure for all its citizens a uniform Civil Code throughout the territory of India. The judiciary has always tried to narrow the gap between the general provision of law and the personal law. It's crystal clear from BhagwanDutt v. Smt. Kamala Dev, wherein the apex court ignored the personal law and stressed that provisions under Criminal Procedure Code must be made applicable to all regardless of their religious beliefs. Listed below are some landmark cases decided by the Judiciary.
Mohd. Ahmad Khan vs. Shah Bano Begum- in this case the court held that, the statement within the text books viz., Mulla’s Mohammedan Law, Tyabi’s Muslim Law and Dr. Paras Diwan’s Muslim Law are inadequate to determine the proposition that Muslim husband isn’t under an obligation to give for the maintenance of his divorced wife, who is unable to upkeep herself.
Sarla Mudgal vs. Union of India- the Personal laws of Hindus, Muslims and Uniform Civil Code were touched and therefore the judgment favored the enactment of Uniform Civil Code. Supreme Court held that Uniform Civil Code isn’t against secularism and doesn’t not violate Article 25 and 26. Article 44 is predicated on the concept that there’s no necessary connection between religion and personal law in a civilized society. Marriage, succession and like matters are of secular nature and, therefore law can regulate them. No religion permits deliberate distortion.
MakkuRawther’s Children vs. ManaparaCharayil- Justice Krishna Iyer clearly opined that the provisions of personal law should always run in accordance with the provisions of the Constitution. It’s the function of judiciary to construe the words of personal laws with the passage of time which is the need of the hour within the light of constitutional mandate. It’s now a high time to read the personal laws in the light of the philosophy contained within the provisions of the Article 44.
UNIFORM CIVIL CODE-CHALLENGES IN ITS IMPLEMENTATION
Uniform Civil Code is a debated-topic. The task of truly devising a group of rules which will govern all communities may be a very formidable and tedious one considering the vast range of interests and sentiments to be accounted for. Some of the challenges in implementing Uniform Civil Code are:-
• Misinformation about Uniform Civil Code – Content of Uniform Civil Code has not been spelt out clearly which leads minorities to believe that it is a way of imposing majority views on them.
• Lack of political will in the complexity and sensitivity of the issue .
• Different religious communities have different personal laws which creates the politicization of the UCC debate.
Opponents of Uniform Civil Code argue that private laws are derived from religious beliefs. They maintain that it's prudent to not disturb them, as this runs the danger of engendering animosity and tension between various religious communities. Also, India is a secular country which guarantees its minorities the right to follow their own religion, culture and customs under Article 29 and 30. They argue that implementing UCC will contravene these articles.
SUGGESTIONS FOR IMPLEMENTING A UNIFORM CIVIL CODE
To realize the goals of the DPSP and to take care of the uniformity of laws, the subsequent suggestions need immediate consideration:
• A progressive and broadminded outlook should be encouraged among the people to know the spirit of the UCC. For this, education, awareness and sensitisation programmes must be taken up.
• The Uniform Civil Code should be drafted keeping in mind the best interest of all the religions.
• A committee of eminent jurists should be constituted to take care of uniformity and care must be taken to not hurt the emotions of any particular community.
• The matter being sensitive in nature, it's always better if the initiative comes from the religious groups concerned.
THE WAY FORWARD FOR UNIFORM CIVIL CODE: GRADUAL CHANGE
India features a unique blend of codified personal laws of Hindus, Muslims, Christians, Parsis. There exists no uniform family-related law in a single statute book for all Indians which is acceptable to all religious communities who co-exist in India. However, a majority of them believe that Uniform Civil Code is certainly desirable and would go a long way in strengthening and consolidating the Indian nationhood. The differences of opinion are in its manner and timing in which it should be realized.
Instead of using it as an emotive issue to gain political advantage, political and intellectual leaders should attempt to evolve a consensus. The question isn’t of minority protection, or even of national unity, it’s simply one of treating every person with dignity, something which personal laws have so far failed to do.
Our Constitution guarantees freedom of conscience and free profession, practice and propagation of religion and freedom to manage religious affairs by Article 25 and 26. Article 44 also does not say that all personal laws should be repealed and that the proposed uniform civil code be imposed on all citizens. As rightly assured the Constituent Assembly by Dr. Ambedkar, that the citizens would be required to declare voluntarily that they would be governed by such code when enacted and not imposed on all citizens. Not much progress has been made towards achieving the ideal of a uniform civil code; the only tangible step taken in this direction has been the codification and secularization of Hindu law. The codification of Muslim law still remains a sensitive matter. It is necessary that law should be separated from religion. It will be a hard process butwith the enactment of a uniform civil code, secularism will be heightened; the differences between various religious groups will disappear and India will emerge as a much more cohesive and integrated nation.
Law Centre-II, Faculty of Law, Delhi University