Uniform Civil Code

 – The cultural & religious diversity of India was readily accepted by our forefathers who declared India as a Secular Nation. Secularism as one of the basic structure of our Constitution has also been interpreted by the Honourable Supreme Court of India. The Constitution bestows the right to freedom of religion to people residing in this country and it is a fundamental right under Article 25.  Also there is Rule of law under Article 14 of the Constitution.   

Constitutional provision of UCC:

It is manifest that the Constitution makers have kept the provision of Uniform Civil Code (further referred as UCC for the sake of brevity) vide Article 44 which states that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

However, Article 44 was put in Part IV of the Constitution i.e. Directive Principles of State Policy, which is not enforceable in the court of law. It is pertinent that Article 37 states that the provisions contained in this part shall not be enforceable by any court, but the principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

It is crystal clear that although Directive Principles of State Policy are not enforceable in the court of law but the language used is very assertive that these principles as laid down are fundamental in the governance of the country and in policy formulation in furtherance  thereof. It is noticeable that word ‘shall’ has been used in Article 44 i.e. the State shall endeavour…. which is in assertive terms.

But since the adoption of the Constitution on 06th November 1949, Article 44 has always remained as rest in peace and the erstwhile Governments has never taken any effective steps towards implementation of UCC.

That very recently Law of Commission of India has sought opinion from general public on UCC in the form of questionnaire. The commission intends to submit its report on UCC to Govt. of India.  

 

     View of Judiciary on UCC:

It would be indubitable to know the considered view of judiciary on UCC i.e. Article 44 of the Constitution and its implementation.

The Constitution Bench through Chief Justice Y. V. Chandrachud in Mohd. Ahmed Khan vs. Shah Bano Begum , 1985 held as under :

“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The state shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law.  A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made is the Constitution is to have meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”

Further in Sarla Mudgal v. Union of India, 1995 the Honourable Supreme Court of India stated, “The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India” is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law- a decisive step towards national consolidation……….. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments –which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”.

In John Vallamattom v. UOI, 2003, the Apex Court advocated implementation of UCC.

It is un-questionable that courts in India have advocated legal merits in  implementation of UCC consistently over the years .

Whether personal laws of various religious denomination have been codified:

We must also now consider the various religions for whom personal laws have been codified. The population census indicates roughly that around 80% of Indian population are followers of Hinduism.

That it is noticeable that  major religions in India have undergone some social reforms or the other in their personal laws and practices. The Christains have Indian Christian Marriage Act, 1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925. The Parsis have the Parsi Marriage and Divorce Act, 1936. The Hindu civil laws (that apply to the Sikhs, Jains and Buddhists) have been codified by the Parliament through the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956.

That for Christians, Hindus (also Sikhs, Jains and Buddhists) and Parsi, laws on     marriage, divorce, succession, inheritance and maintenance have been well codified.

It is manifest from the above data that apart from Muslims, all other religions’ personal laws and practices have been codified with varied provisions.

Pertinent difference in codified personal laws of various religion:

That in case of Christians, a couple has to live separately for two years for finalizing divorce, there is waiting period of two years. For Hindus (also Sikhs, Jains and Buddhists) the Hindu Marriage Act stipulate only one year period of separation to file for dissolution of marriage. There are other pertinent differences in the codified  personal laws of various religions.

The State has made monogamy, law for Hindus (also for Sikhs, Jains and Buddhists), Christians and Parsis. The Section 494 of IPC makes marrying again during the lifetime of husband or wife a punishable offence whereas the Muslim personal law permits as many as four wives.

Would UCC be violative of Article 25 i.e. Right to freedom of religion:

There is no iota of doubt that Article 25 gives right to freedom of religion to people residing in India. However, Clause 2 makes it clear that

(1) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a)  regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice………

It is abundantly clear that the Article 44 of the Constitution does not come in conflict with Article 25 that guarantees freedom of religion, because clause 2 of this Article separates religion from secular laws that removes some regressive religious practices. It is noteworthy that freedom of religion shall not limit the state from making any law providing for social welfare and reform.

Justice Chinnappa Reddy, delivering his Ambedkar Memorial Lecture on ‘Indian Constitution and Secularism’ has observed that :

“Indian constitutional secularism is not supportive of religion at all but has adopted what may be termed as permissive attitude towards religion out of respect for individual conscience and dignity. There, even while recognizing the right to profess and practice religion, etc., it has excluded all secular activities from the purview of religion and also of practices which are repugnant to public order, morality and health and are abhorrent to human rights and dignity, as embodied in the other fundamental rights guaranteed by the Constitution.”

In SR Bommai v. Union of India; 1994, the Apex Court speaking through  Justice Jeevan Reddy held that religion is matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law.

It is very pertinent that common civil law like the common criminal law, does not infringe on any religion.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society. Marriage, succession and like matter are of secular nature and therefore law can regulate them.

Resultantly, it can be very well inferred that UCC would not be violative of Article 25 of the Constitution.

Need for UCC and way ahead:

When personal laws governing marriage, divorce, inheritance and adoption for Christians, Hindus (also for Sikhs, Jains and Buddhists) and Parsi have been codified then there is no justification to keep in abeyance UCC for all citizens of the country. A high time has come to introduce UCC when more than 80% of the citizens already have varied codified personal laws. The need for UCC is undisputable & undeniable. The need for law must be based inter-alia need for time and values that ensure equity and gender justice. 

For example in Goa, common civil law is prevalent for people of all religion in the state.

UCC will help the cause of national integration by removing disparities/differences in personal laws and as sine-qua-non for stronger India. A far sighted political will is required and a time has come for political parties to rise above from the vote bank politics to appease minorities.

Then Rajiv Gandhi led Govt. overturned the Shah Bano Case decision by way of Muslim women (Right to protection on divorce) Act,1986 which curtailed the right of a Muslim woman for maintenance under Section 125 Cr.P.C.

The country as one strong nation must have uniform law dealing with marriage, divorce, succession, inheritance and maintenance for its citizens and UCC would be an ideal safeguard of citizen’s rights which is unquestionable and necessary now.

In a democratic country, law making power vests with the legislatures, however law is often developed by judges and courts when delivering decisions in individual cases that have precedential effect on future cases. However, judge made law is not conducive for democratic society. The credit goes to the Indian Judiciary which has remained consistent in its observation for the need of UCC in the country.

In order to address discrimination and bring harmony in family laws across  different religious denominations and to strengthen the family as the backbone of the society by including a spirit of tolerance between husband and wife and providing for inbuilt safeguard against injustice by one spouse against the other, need for  UCC is indubitable.

 Pertinently, I would also focus on the need of gender neutral approach in codification of family laws in terms of UCC. Family law reforms need not only view women’s rights as its corner stone but should also equally weigh men’s rights. Few so called pseudo women groups can not be allowed to decide the nature of family laws. A formidable society must be able to harmonize the needs of both men & women rights in equal aspect.

In my view, UCC must also include irretrievable breakdown of marriage as ground for dissolution of marriage and maintenance provisions/law must be codified into one and must be gender neutral.

      It is settled principle of law that law cannot be allowed to be misused and an      innocent person cannot be made to suffer. So while formulating UCC, a proper        check must be kept so as to stop its abuse if any. Any law reform must have     compassion for healthy growth of future      generation and has to be sustainable.

      Since, the Constitution does not differentiate on the basis of religion or sect      and treats every citizen as equal and there is Rule of Law under Article 14,   then why there exist potential difference in varied family laws governing              different religion.

      To remove this pertinent discrimination  Uniform Civil Code should         be  formulated and implemented. This is the need of the hour.

Sources: 1. The Consitution of India, Bar Act.

2. https://judis.nic.in

 

Views expressed are personal views of the author and has no connection with any institution or organization.