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Uniform Civil Code under article 44 of Indian Constitution

Uniform Civil Code means common law for all the religions and sections of people. It covers the area of marriage, divorce, adoption, and inheritance and securing and administration of property. Under Indian Constitution Article 44 states about the Uniform Civil Code, that India should strive towards achieving it.

It is secular in nature and covers all personal laws, it promotes national unity. This Code is applicable in most part of the world and every person whether in minority or not has to follow it. But India is such a diverse country and religious sentimental its application is not easy. In India, Goa is the only state that have adopted and enacted Uniform Civil Code. Uniform Civil Code is most beneficial to the women as it provide equality and justice with respect to marriage, divorce, adoption, inheritance etc.

It is also to be noted that Common Civil Code would infringe the fundamental right of freedom of religion stated under Article 25 and minority will be neglected. The first objection is flawed because secular activity associated with religious practice is exempted from this guarantee With respect to the minority in the country, nowhere in advanced Muslim countries has the personal law of each minority been recognized. Only Hindu personal law has been codified through it had faced its share of criticism.

ADVANTAGES:

  • National unity and national spirit will increase
  • Cases because of personal law will reduce
  • Provisions intersecting could be avoided
  • Communal and divisional politics will end politics will decrease

Committee on the Status of Women in India[1] stated: “The continuance of various personal laws which accept discrimination between men and women violates the fundamental rights and the Preamble to the Constitution which promises to secure to all citizens “equality of status, and is against the spirit of natural integration”.

ROLE OF JUDICIARY

Mohammad Ahmed Khan v. Shah Bano Begum[2] , Supreme Court for the first time stated that government should make law under Article 44 for giving women equal status. The Court also held that Article 44 of the Constitution has remained a dead letter, Chief Justice of India Y. V. Chandrachud stated that- “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies” This case had created a lot of drift and confusion in the nation and for the political benefits and other reason by keeping in mind the Parliament said that Supreme Court had just made an observation and it is not binding on them to execute it and there should be no interference with the personal laws.

Thereafter in another case Sarla Mudgal v. Union of India[3]Supreme Court had issued guidelines to frame the Uniform Civil Code. The Supreme Court opined that: “Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three “nation theory and that in the Indian Republic there was to be only one nation- and no community could claim to remain a separate entity on the basis of religion”. In case of Lily Thomas v. Union of India[4]– court said that it is listed under Part IV which cannot be enforced in any court of law and Supreme Court cannot compel to enforce the Directive Principles.The bone of contention is that Secularism is the centre of Common Civil Code and Article 25 is the Fundamental Right. India being secular state shall not discriminate on the basis of religion; state is concerned with all relationships of man whether tangible or intangible. In the case of S.R. Bommai v. Union of India[5]religion is the matter of individual faith and cannot be mixed with secular activities, Secular activities can be regulated by the State by enacting a law”.

Supreme Court in a PIL stated that court have done their part by issuing guideline and deciding various cases on the same now it is the time for the Parliament to make law and take decision on the matter.

Article 25 guarantees to every person have the freedom of conscience and their right to profess, practice and propagate religion. But they have to consider about

  • public order,
  • morality and
  • health and
  • to the other provisions of Part III the Constitution,

Article 25 also sanctions the State to regulate any economic, financial, political or other secular activity, which is associated with religious practice and provide for social welfare and reforms. Freedom of religion extends to acts done in pursuance of religion and, therefore, contains a guarantee for ritual and observations, ceremonies and modes of worship, which are the integral parts of religion. Itdoes not opposed to secularism or will not violate Article 25 and 26. Dr. B.R. Ambedkar while making constitution put uniform civil code in Directive Principle because he believed that after around 5-10 years uniform civil code could be implemented.

The Hindu Women’s right to Property Act of 1937, passing and formation of the B. N. Rau committee, determined the necessity of common Hindu laws. The committee came to the conclusion that it was time of a uniform civil code, equal rights to women should be given so that they could keep up with the change as the change is only constant. Similarly inThe Special Marriage Act, which was first enacted in 1872, needed amendment, Special Marriage (Amendment) Act, 1923 which permitted Hindus, Buddhists, Sikhs and Jains to marry either under their personal law or under the act without renouncing their religion as well as retaining their succession rights, it would be unfair that in the secular country only Hindu law is codified. There is an urgent need for codification with all the tension and communism increasing every day.

UNIFORM CIVIL CODE BILL:

A Bill on Uniform Civil Code is completed. As soon as the optional portion id removed it would be ready to be implemented, it can be perceived that by taking such a drastic step there would be lot of dissatisfied soul and protest but just because of fear of protest a bold step should not take a back seat. The Bill covers personal law with respect to marriage, divorce, minority, maintenance, guardianship and succession[6].It would also repeal the Special Marriage Act, 1954. The law commission has also proposed consolidation of the Indian Divorce Act and the Indian Christian Marriage Act into one statute on the analogy of the Hindu Marriage Act and has also suggested certain reforms in law. The government by passing Triple Talaq[7] bill took a very strong step towards uniform civil code and should continue toward the same path.

CONCLUSION:

The Uniform Civil Code protects not only the fundamental rights but also the religious preference of individuals. It is made without any biases towards a particular community. They recognize almost all parts of personal law such as divorce, inheritance, marriage, special marriage, guardianship, maintenance etc. It would also create an equal environment for women who suffers a lot in the name of religion like triple talaq, polygamy, absurd reason for divorce etc. The patriarchy has to take a step back. Even countries like Turkey, Russia where many minority religion or sub-religion reside have common civil code.

Also a sense of national unity and fraternity will also be created and sense of true secularism shall prevail. Political parties will also come up with some genuine election propaganda other than just creating the feeling of communalism and gathering votes for the same.

[1]A Report of Committee on the Status of the Women in India, 1975

[2]AIR 1985 SC 945

[3]AIR 1995 SC 1531

[4]AIR 2000 SC 1650

[5]AIR 1994 SC 1918

[6]http://www.legalservicesindia.com

[7]Shayara Bano v. Union of India

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