India is a secular country and is home to people of various castes and religions. We do not have a particular religion which makes it possible for the peaceful coexistence of all. During independence when the nation was being built, several political thinkers were of the opinion that the country would not be able to survive due to its diverse nature. “Unity in Diversity” became the most distinguishing factor of India from other nations.
In India, personal matters of citizens are dealt under the Personal Laws of the religion that they follow. Matters such as marriage, divorce, adoption, maintenance, inheritance etc are dealt under the laws which are limited to a particular religion. For example, a Hindu Man will have to abide by the laws of the Hindu Personal Law. The laws that deal with such matters are not the same for every citizen and are in accordance with one’s religion.
The implementation of UCC began way back during the British Rule. It may not have been considered in a similar way but Lord William Bentick abolished Sati Pratha to suppress unjust religious practices. When the Constitution of India was being drafted, Directive Principles of State Policy had been established under Article 37 of the Constitution. The Directive Principles denotes the ideals that must be kept in mind while framing government policies and enacting laws. Directive Principles cannot be enforced as they are not binding in nature but these principles are fundamental in the governance of the country. It is the duty of the state to keep these principles in mind while framing laws.
One of the principles which has been included under the Directive Principles is the Uniform Civil Code (Article 44). Uniform Civil Code refers to a single law which is applicable to every citizen irrespective of their religion in their personal matters such as marriage, divorce, inheritance etc. The intention of this principle is to replace the system of separate personal laws which govern interpersonal relations with uniform laws for every citizen. For example, a Muslim Man under Muslim Personal Law can have multiple marriages. If Uniform Civil Code comes into play, polygamy will not be allowed and will be in contradiction with the Muslim Personal Law.
Even though Uniform Civil Code is only part of the Directive Principles, there have been multiple discussions around it and also have been part of election manifestos. The demand for Uniform Civil Code came into discussion during the Shah Bano Case. She demanded maintenance from her husband who divorced her by the means of Triple Talaq after 40 years of marriage. The Supreme Court decided in favour of her and said that “There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”
In India, the only state that has Uniform Civil Code is Goa. The Portuguese Civil Code, 1867 continues to be implemented in Goa to every person irrespective of their religion or ethnic community. For example, if a Muslim man has a domicile from Goa, he does not have the right of polygamy. However, the Portugese Civil Code is not a completely Uniform Civil Code as it allows some exceptions on religious basis.
The Uniform Civil Code has ignited discussion due to its presence in the manifesto of the ruling party. The current government has fulfilled two important promises made in the manifesto. The first being the revocation of the special status of Jammu and Kashmir and the second being the settlement of the Ayodhya dispute. People are of the opinion that the promise of a Uniform Civil Code will also be implemented.
CONSTITUTIONALITY OF UNIFORM CIVIL CODE
The Uniform Civil Code provides equal status to every person irrespective of their religion. According to the laws which are in place, there is no consistency in the laws that govern personal matters. People are treated differently on the basis of the community to which they belong. For example, under Hindu Personal Law, a Hindu man cannot have multiple marriages but a Muslim man under Muslim Personal Laws can have multiple wives. This clashes with Article 14 of the Constitution – Right to equality before law.
One of the major criticisms of Personal Laws is that they give undue advantage to men. Under the Hindu Minority and Guardianship Act, 1956, men are considered as the “natural guardians” of the property. Under Muslim Personal Law, men are allowed to remarry but women don’t have the same right as them. If the Uniform Civil Code is brought in place, there will be consistency across communities regarding these matters. It will also eliminate gender inequality which is prevalent in Personal Laws. The Uniform Civil Code will also protect vulnerable sections of society such as women and other religious minorities against discrimination.
The criticism of the Uniform Civil Code is that it is in violation with Article 25 of the Constitution- Right to freedom of religion. Separate personal laws facilitate the process of practicing one’s religion. If the Uniform Civil Code is implemented, it will be in contravention with the freedom of religion. This will especially be problematic when it comes to minority communities as it will suppress them and result in a homogenized culture. Article 31C which has been added in the 42nd amendment, it clearly states that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14, Article 19 and Article 31. However, India is a religion sensitive country, if laws are made which violate the religious beliefs of citizens, protests across the country will erupt. It is a step that needs to be taken with utmost precaution as it may hurt the religious sentiments of people across the spectrum.
The Law Commission on this matter has said, “It is urged that the legislature should first consider guaranteeing equality within communities between men and women, rather than equality between communities. This way some of the differences within personal laws which are meaningful can be preserved and inequality can be weeded out to the greatest extent possible without absolute uniformity.” The diversity of cultures must be preserved as that is the very essence of India. Before taking drastic steps, it is necessary that there must be equality among equals i.e. people who belong to the same community.
SECULARISM, FREEDOM OF RELIGION AND UCC
The principle of secularism essentially means the non-interference of the state in religious matters In the 42nd amendment, the Preamble of the Constitution of India asserted that India is a secular state. However secularism in India is different from the western interpretation of secularism. India’s secularism does not separate religion and state. The state has the right to interfere in religious matters. The principles of secularism and freedom of religion are in conflict with a Uniform Civil Code. But in India, secularism does not mean complete non-interference of the State. It merely means that the state does not have a state religion and educational institutes owned by the state cannot impart religious knowledge. Hence the implementation of Article 44 is not against the secular nature of India.
Article 44 is based on the theory that there is no connection between religion and personal law in a civilized society. One is free to follow one’s own religious beliefs. But personal laws should not violate fundamentals of human rights, women rights and create inequality in society. Matters such as marriage, divorce, inheritance etc are common to every person and hence can be decided by a law that is common to every person. In a judgement given by Justice R. N. Sahai, he said that, “Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity.”
If secularism was to be taken in the true sense, then the argument that the Uniform Civil Code is contradictory to the principle of secularism does hold true. However, the adoption of secularism in India is very different from the western world. During the Shah Bano Case, widespread protests erupted across the country that the judgement is violating the mention of Secularism in India. Article 44 is also not violative of the freedom of religion as Article 31C states that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14, 19 or 31.
The communities that have time and again criticized the implementation of the UCC ask an important question, as to what is the government’s position and right to decide which religious practices are bad and good. If a Uniform Civil Code is implemented, it has to ensure that every community is catered to. This seems to be an impossible task as Indians are sensitive about religion, and any change to their personal laws and religious practices is bound to be opposed by them. In order to remove such practices, the government would have to prove without any counter argument, that the practices violate basic human rights that every person has the freedom to enjoy.
SHAH BANO CASE
PETITIONER: MOHD. AHMED KHAN
RESPONDENT: SHAH BANO BEGUM AND ORS.
DATE OF JUDGMENT23/04/1985
CITATION: 1985 AIR 945, 1985 SCR (3) 844
The landmark case of Ahmed Khan VS Shah Bano Begum was the turning point towards the discussion of a Uniform Civil Code. In 1985, Shah Bano Begum claimed maintenance from her husband after he divorced her after 40 years of marriage by the means of Triple Talaq. She moved the Supreme Court seeking maintenance under Section 125 of the Criminal Procedure Code. Section 125 of CrPC is the order of maintenance of wives, children and parents. The defence of the opposite party was that according to Islamic law, he has given her an irrevocable divorce and that she has ceased to be his wife and hence he is not obliged to maintain her. The Supreme Court’s judgement was in favour of Shah Bano by applying Section 125 of CrPC which does not distinguish between any person on the basis of their religion. This case was a landmark judgement as a secular law was used to provide justice in place of the Muslim Personal Law. It was during this case that Justice Chandrachud said that a Uniform Civil Code will facilitate national integration. The Supreme Court after his case directed the Parliament to frame a UCC.
This case challenged the religious orthodoxy and brought into public light the plight of Muslim women. The judgement is historic because it reinstated the fact that the Law of the Land is above religious customs and personal laws. Social justice will prevail if a certain section of society is being oppressed. The judgement also received massive backlash from religious groups which stated that it is an attack on the religious freedom of a person and that it takes away the freedom to practice one’s own religious personal laws.
The judgement of the Supreme Court received major criticism and the government was concerned about the disturbance of public peace. The then Prime Minister Rajiv Gandhi, instead of supporting a progressive judgement, enacted the The Muslim Women (Protection of Rights on Divorce) Act, 1986 which nullified the Supreme Court’s judgement. Hence, due to the enactment of such a law, the Muslim Personal Law prevailed in this case. The act mentioned that a Muslim woman can only claim maintanence for three months after divorce which is considered to be the Iddat period. The duty of maintenance is then transferred to the relatives or the Wakf Board.
SARLA MUDGAL CASE
PETITIONER: SMT. SARLA MUDGAL, PRESIDENT, KALYANI & ORS.
RESPONDENT: UNION OF INDIA & ORS.
DATE OF JUDGMENT10/05/1995
CITATION: 1995 AIR 1531, 1995 SCC (3) 635
Sarla Mudgal VS Union of India is a landmark case as the Supreme Court reiterated the need for a Uniform Civil Code in this case. The case portrayed how different religious Personal Laws are in contradiction with each other. A Hindu man was married under the Hindu Marriage Act, 1955. He converted to Islam, which allows polygamy and solemnized his second marriage to another woman. The question that was put forth was if the second marriage was valid in the eyes of law. The Supreme Court held that the second marriage after conversion is illegal. The first marriage can only be dissolved under the Hindu Marriage Act, 1955. Mere conversion to Islam will not dissolve the first marriage. The first marriage is valid under the Hindu Law and the solemnization of the second marriage after conversion will be considered illegal and can be punished under Section 494 of the Indian Penal Code.
The Supreme Court said that the conversion to Islam merely to solemnize a second marriage is the abuse of Personal Laws and is being used with the wrong intention. The Supreme Court after this case, redirected the Parliament to enact the Uniform Civil Code because due religious personal laws and the vast difference between each of them, justice was not being served. Until the Uniform Civil Code is enacted, there will be loopholes in the law and the differences will cause issues. Different faiths have different belief systems and due to their different practices there will be conflict that arises.
FUTURE OF THE UNIFORM CIVIL CODE
The current Personal Laws that prevail in India are different for different religions. This creates confusion among individuals. People convert to take the advantages of another Personal Law as in the case of Sarla Mudgal. If there is Uniform Code such inconsistencies in law will be removed. Matters such as marriage, divorce, succession are secular in nature and religion must not play an important role in it. If the same laws will prevail for every individual, it will promote communal harmony. It will also promote equality before law as every individual will be under a Uniform Code rather than laws that have been dictated by one’s religion. A Uniform Civil Code will result in national integration and the minorities will not be sidelined. When a law is common to all, the chances of partiality reduces and everyone feels a sense of oneness. However, it is not certain if India is ready for such laws as India is an extremely religious sensitive country. A broadminded and open outlook with liberal ideas is required to implement the Uniform Civil Code.
The ruling party has included the promise of a Uniform Civil Code since the year 1998 but there has been no action on it until now. The predictable reason is that the government doesn’t want to hurt the religious sentiments of people. If the Uniform Civil Code is implemented the minority communities have everything to lose as religious practices, customs and beliefs will be challenged by the UCC. Governments have time and again stated that the UCC will not harm the religious sentiments of any community and that there will be a middle ground for harmonizing the Uniform Civil Code and the Personal Laws. The best traditions followed and the liberal thinking of modern times will be put together to ensure that no religious sentiments are hurt and every sector is catered to.
The implementation of UCC should be a progressive legislation.Reformation must be done in order to cater to the actual implementation of gender justice and equality before law. Changing times strongly necessitates the need for having a Common Civil Code and then only a fully tolerant India of our dreams with its religious working side-by-side with one another, could be achieved.
I strongly believe that there is a need for a Uniform Civil Code in a country with such diverse religions. If Personal Laws are continued to be followed, the multiple contradictions between different personal laws may cause disharmony between the people. As the saying goes, “ the grass is always greener on the other side.” If every person is not treated equally before the law, he looks for ways to gain the advantage that another person is enjoying. However, India’s large population still believes in ancient customs and traditions that do not make sense in the modern world. It is necessary to sensitize citizens to the idea of Uniform Civil Code or else it will receive massive backlash.
Times have changed, societies have changed and it is the right time for the laws to change. India is a country of a young population and young minds with a liberal outlook. The UCC will change the lacunas in law and ensure that every person is being treated by important principles of the Constitution such as equality, gender justice, religious freedom etc.
The correct way to implement the Uniform Civil Code would be a process itself. If done hastily, it might hurt the sentiments of people who are attached to religious customs and practices. It is necessary to first eliminate guidelines in Personal Laws which are against the principles of equality. Laws which undermine women or which are not gender neutral should be abolished for social progress. The customary laws of every religion must be allowed to remain as it is sacred to people. Removal of such customs will lead to interference of the state in one’s religious affairs.
It is time that India, as a country takes steps towards gender neutrality. If each person is treated equally by the State, there will be peace and harmony in the society. It is essential that age old customs are removed to allow the country to progress in the direction of development. Changes need to be made in the existing personal law by the communities themselves and citizens must be sensitized to the idea of it. Instead of implementing one civil code, the government should legislate on certain matters so that it does not come as a shock and the country must be ready to accept the change.
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This article is written by Aradhana Pillai, 4th year Law Student at Amity Law School, Amity University Mumbai.
Also Read – Concept of Directive Principles of State Policy
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