The Indian Constitution stipulates the creation of a single civil code throughout the country in the form of the ‘Uniform Civil Code’ which comes under the purview of Article 44.(1) It provides that the authorities must work to ensure that all nationals of India have access to a Uniform Civil Code, which would apply to all religious groups and cover issues like marriage, divorce, inheritance, and adoption. It was a goal of the Constitution's authors to progressively and conscientiously move toward a common code for all citizens in the future.
Its roots can be traced to colonial India when the British government produced a report in 1835 highlighting the need for universality in the codification of Indian laws pertaining to offences, evidence, and contractual arrangements, as well as recommending that personal laws of Hindus and Muslims be kept isolated from such formalisation. They were concerned that it might exacerbate tensions between the two faith communities.
“According to the Constituent Assembly Debates on Article 44,(2) concerns were made on behalf of members of the Muslim community, among many other minorities, that any aspect of developing a Uniform Civil Code would result in the imposition of a Hindu Code on the overall nation.”
To address those issues, Dr. B.R. Ambedkar said that, “Article 44 should not be interpreted to imply that the Uniform Civil Code would really be made effective straightaway and that any attempt to construct such a code would indeed be subject to the perspectives of minorities.”(3) Though, by including a provision for UCC in our Constitution, the constituent assembly demonstrated its commitment to a uniform India via its vision of the country.
When Article 44 of the Constitution was enacted in 1949, directing that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India,” we had already uniform codes of law designed to cover virtually every facet of legal relationship apart from those affairs where we've been guided by different personal laws.(4) While India's criminal laws apply to everyone, regardless of their religious affiliation, the country's civil law is influenced by religious beliefs and practices. Despite being influenced by religious sources, personal laws that have been employed in civil disputes have always adhered to constitutional standards.
The judiciary has expressed its support for the adoption of a Uniform Civil Code (UCC) in our country on numerous times. In “Mohd. Ahmed Khan v. Shah Bano Begum and Ors”,(5) the court dealt with maintenance for divorced Muslim women,(6) followed by the Ms Jorden Diengdeh v. S.S. Chopra(7) examined the Christian Succession Act,(8) the Sarla Mudgal and Ors. v. Union of India (UOI) and Ors(9) dealt with deceitful Islamic conversion for polygamy,”(10) and in John Vallamattom and Anr. v. Union of India(11) dealt with succession rights to the Delhi High Court judgement, are just a few of the numerous instances in which the courts have actually encouraged the requirement for a uniform civil code for the nation.
Before proceeding, it is important to identify what personal laws entail. The people of India are of various religious and spiritual backgrounds. They are controlled by separate sets of rules when it comes to topics pertaining to family affairs, such as marriage, dissolution of marriage, adoption, and inheritance, etc. Due to the fact that our legislators at the time of Independence opted not to intervene in religious matters, we acquired this practice of having various sets of personal rules for separate faiths from British colonial control.
One way to describe personal laws is as those that apply exclusively on the basis of a person or thing's membership in a particular religious order or group and those that address issues “such as the essential validity of a marriage or proprietary and intestate succession.”(12) They could also be defined as “a body of laws that apply to a person or a matter solely on the basis of his or her affiliation with or belonging to a particular religion.”(13) One definition looks at the content of personal laws, while the other focuses on where they come from (the source). The personal laws of Hindus and Muslims are derived from their holy writings, which are considered authoritative.
Personal laws in Hinduism are applicable to legal matters such as succession, inheritance, marriages, adopting, co-parenting, “the responsibility of sons to pay their father's debts, the partition of family property, maintenance, parental rights, and charitable gifts.” Islamic personal law governs subjects sin the Holy Quran, including inheritance, a will and inheritance, legacy, marriages and wakfs, dowry, custody, divorce, gifts, and pre-emption.
In spite of the fact that several religious sects cohabit as part of a single country, the family laws in India vary from one faith to the other.
A widespread fallacy used to scare minorities is that the UCC will completely eliminate their customary laws and values. Legally, the UCC will serve as a common civil code for all citizens, containing codified personal laws for people of all religious beliefs. On the basis of this assumption, the UCC in India would have separate sections for each faith, which will allow for the sanctioning of customary practices in the areas of marriage, divorce, maintenance and succession.
There is a group of persons who believe that modifications in the area of ‘personal law’ should emerge from within the community rather than being imposed by the legislature. Based on the past and current attitudes of the community's leaders, it appears that this will not occur in the near future. Significant stakeholders who benefit from the inadequacies of the social system genuinely wish to relegate the subjects to a lower social status. Many people were taken aback when they learned that the Muslim Personal Law Board vigorously attempted to defend the practices of triple talaq, polygamy, and nikah halala as reflected in the affidavit submitted before the Supreme Court in the Re: Muslim Women Quest For Equality case, also known as the Triple Talaq case.(14)
A common civil code was first mentioned by the courts in the case of Mohammed Ahmed Khan v. Shah Bano Begum and Ors (1985),(15) in which the Supreme Court urged the central government “to create a single civil code in the sake of national integration.” On the facts of this case, the mention of the Common Civil Code is perplexing, as the provision that it had interpreted and applied in that instance, that is, Section 125 of the Cr.PC, had long been recognised as being applicable across all religious affiliations, regardless of their personal laws.
According to popular belief, the only fault with India's personal laws is a lack of uniformity, which is why a uniform civil code has been pushed for. The UCC aspires to safeguard vulnerable elements of society, including as women and religious minorities, in accordance with Ambedkar's vision, while simultaneously fostering nationalistic fervour via unity.
A short time after independence, the legislative branch of government set towards unifying the country under common civil laws, through statutes like Special Marriage Act, 1954; The Dowry Prohibition Act, 1961. The vast majority of the people have failed to pay attention to these laws to a significant degree. The goal of implementing the Special Marriage Act was to remove traditional opposition to marriage, as opposed to actual discontent with personal laws, among the community.
So much so that even Hindu law, which is intended to produce a standard set of rules regulating all Hindus, is not unified in some of the most basic parts of family law. Since its inception, even the Dowry Prohibition Act has remained a mere piece of legislation. As a result, unifying legislation has historically failed poorly in its attempts to achieve the desired result.
India is the world's biggest democratic country, with a population that is predominantly comprised of adherents of the six most widely practised religions in the country, namely Hinduism, Islam, Christianity, Sikhism, Buddhism, and Jainism. Aside from religious differences, the Indian population is divided into subgroups based on factors such as language, place of residence, culture, and so on. Religion is the cornerstone of culture, custom, and tradition, and as a result, it is a challenging task to renounce long-established habits in favour of a new religious practise of any kind.
K.S. Hegde, a former Supreme Court judge, once observed that “religion-oriented personal laws were a concept of mediaeval times—alien to modern societies that are secular as well as cosmopolitan” and that “as long as our laws are religion-oriented, we will find it difficult to build a homogeneous nation.”(16)
While there is a tendency to advocate for a uniform Civil Code, it must be remembered that legislation cannot exist in a vacuum without taking into consideration social norms. While there is a lack of societal support and state capacity to put our ideas into action, there is a risk of forcing people to seek justice through various forms of communal justice, such as Islamic law courts or khap panchayats. It may be necessary to persuade a typical civil code to exercise caution in its selections.
It also has to be seen if the legislation ought to be mandatory, therefore eliminating all personal law, or whether it ought to be optional, allowing Indians the option of choosing to measure below their non-secular umbrellas if they so choose. In any case, it is past time for us to articulate our ideals and conflicts within the context of the quest for a shared civil code as a dream. A legitimate effort to initiate such a discourse has not been made in the seven decades that have elapsed since the Constitution was adopted.
Goa is the only state in India that has a uniform civil code that applies to everyone, regardless of religion, gender, or caste. The province has a common law system for family matters. As a result, the province is the only Indian state to have a civil code that is consistent throughout the state. In the jurisdiction of Hindus, Muslims, and Christians, all measures are certain, and all laws pertaining to marriage, divorce, and succession are the same. Upon the province's incorporation into the Union Territory of Daman and Diu in 1961, the parliament, by virtue of “the province Daman and Diu administration act, 1962,” granted permission to use “the Portuguese civil code of 1867” in the province. This code may be amended or repealed by the competent legislative assembly.
What persons should understand is that religion and law assessment are two entirely separate concepts from one another. This may be due to the fact that the Constitution allows individuals to practise their religion, which can continue notwithstanding the implementation of a uniform law. The uniform code may make it difficult for them to practise or express their religious beliefs.
To give an example, while the non-secular scriptures prescribe punishments for crimes, the Indian legal code, promulgated in 1860, is the only set of punitive laws that are enforced in India. As a result, it is past time for people to recognise faith and law as two fundamentally different notions and to concentrate in the management of all categories of people.
“The Uniform Civil Code in India Bill, 2018 (17) is a piece of legislation proposed by the Bharatiya Janata Party in the Lok Sabha in the year 2018 with the goal of providing a common civil code or common law for every citizen who is residing in India, regardless of their religion, race, caste, or other characteristics, throughout the entire geographical territory of India.”
The primary objectives of the UCC Bill, as introduced in 2018, are as follows:
Achieving equal treatment for all people regardless of their religion, ethnicity, caste, or gender, as stipulated in Articles 14 and 15 of the Indian Constitution.
Reducing or abolishing personal laws that are based on religious views in order to create a unified legal framework.
Eliminating any form of discrimination against women that may occur as a result of the inadequacies and disparities in the Indian legal system.
The prevalence of institutional prejudice and inequality under the cover of personal laws has so far robbed a segment of our population for a long period of time. Using religious beliefs or basic rituals to defend discriminatory behaviours is insufficient. It's possible that sati pratha, or child marriage, might have never been abolished. The recent GST reforms, the repeal of the triple talaq law, and the repeal of Article 370 have demonstrated that India is more comfortable than it has ever been in its ability to accommodate and move with necessary structural reforms.
In addition to codifying uncodified laws, an all-encompassing UCC will also result in the repeal of unjustifiably discriminating sections in Hindu, Muslim, Christian, and Parsi laws pertaining to adoption, succession, inheritance, guardianship, marriage, divorce, and maintenance. In spite of the fact that India has historically and culturally ingrained the trait of tolerating and accommodating diversity, a diversity that results in discrimination against women is not a source of pride.
After being enacted, the code will serve to streamline laws that are currently segregated on the basis of religious views, such as the Hindu code bill, Shariat law, and other similar legislation. Using the code, the complicated laws of marriage ceremonies, inheritance, succession, and adoption will be simplified and made universally applicable. The same civil law will subsequently be applied to all citizens, regardless of their religious beliefs or affiliations.
- India Const. art. 44.
- Constituent Assembly Debates, (1950) Vol. VII, p. 249.
- Id.
- A.M. Bhattacharjee, Uniform Civil Code — A Goal or a Must: Can we have Different Personal Laws?, 4 SCC J-33, (1984)
- Mohd. Ahmed Khan v. Shah Bano Begum and Ors., (1985) 2 SCC 556.
- Mohd. Ahmed Khan v. Shah Bano Begum and Ors., (1985) 2 SCC 556.
- Ms Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62.
- Ms Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62.
- Ms Jorden Diengdeh v. S.S. Chopra, (1985) 3 SCC 62.
- Sarla Mudgal and Ors. v. Union of India (UOI) and Ors., (1995) 3 SCC 635.
- John Vallamattom and Anr. v. Union of India, (2003) 6 SCC 611.
- Pradeep Jain (Dr.) v. Union of India, (1984) 3 SCC 654.
- A.M. Bhattacharjee, Matrimonial Laws and the Constitution (Eastern Book House, Calcutta 1996).
- Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1.
- Mohd. Ahmed Khan v. Shah Bano Begum and Ors., (1985) 2 SCC 556.
- K.S. Hedge, Islamic Law In Modern India, 3 Ed. Tahir Mahmood, (1972).
- Uniform Civil Code in India Bill, 2018, No. 250, Bills of Parliament, 2018 (India).
0 Comments