The Author, Kumail Fatima is a final year law student at Faculty of Law, Jamia Millia Islamia University.

Introduction:-

In a layman’s language, the Uniform Civil Code is a set of certain laws that apply to every individual regardless of their religion, caste or community. While reading this line, readers might think that we already have the same laws that govern us, but there is a need to understand this concept with its wider implication. What we already have is uniform criminal laws and a large area of civil law, including tort law, contract, sales and other obligations; large parts of property rights are secured by uniform secular law.

But the laws that deal with civil issues such as marriage, divorce, inheritance, guardianship and adoption etc, of different individuals of different religions, are different in our country and they are known as customary laws/personal laws and the Uniform Civil Code is supposed to bring a uniform frame of laws for everyone. Even for the implementation of personal laws, secular/uniform procedure laws are implemented. But it has been observed at times that these personal laws failed in delivering justice due to the complexities and to eradicate the discrepancies and injustice among the communities, the idea of a Uniform Civil Code has been laid down by the constitution-makers under Article 44 of Chapter IV of the Indian constitution, which reads as follows:-

"The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

Background:-

The idea of the Uniform Civil Code was borrowed from European countries especially France, where the French code was implemented. Such codes were brought to eradicate the social stratification within the society and to promote overall equality and development.

In India, religion plays a crucial role and one major example of it was, the revolution of 1857. The whole revolution took place because the intended attack was made by the Britishers on the religious identities of the Indians. Besides, religious scriptures also create discrimination among people either because of their caste or sex.

At the time of making the constitution, several sub-committees were formed and each committee was assigned certain duties. The sub-committee on Fundamental Rights was assigned with the responsibility to prepare a draft of Fundamental Rights. During this process, every member of the Fundamental Rights committee was asked to submit their draft of fundamental rights. In that, Dr. B.R.Ambedkar, K.M.Munshi and Minoo Masani were the people who suggested the uniform civil code as a part of fundamental rights. According to them, personal laws act as a hindrance in delivering true equality and this can only be resorted with the help of a Uniform Civil Code. After drafts, lengthy discussion on justiciable and non-justiciable rights took place. In the end, for maintaining harmony, the constituent assembly unanimously decided to add the uniform civil code in part IV( Directive Principles of State policy) rather than Part III of the constitution and they fall under the concurrent list of the 7th schedule.

Debates on Uniform Civil Code

A Uniform Civil Code has always been seen as a solution for promoting gender-based equality because according to many scholars, Personal laws are somewhere patriarchal because of the influence of a patriarchal society. The fact is that personal laws are based on the religious scriptures and customs and they lack morality and the principle of equality in various aspects. Even in the various judgments of the Hon'ble Supreme Court, it has been said that personal laws need to be modernised considering the fact that they are regressive in nature.

In the case of Sarla Mudgal v. Union of India, the Hon’ble Supreme Court held that “ In India, there is no uniform civil code applicable to all its citizens. Every citizen is governed by his or her personal law. Justice Kuldip Singh requested the Government to look into Article 44 of the Constitution and to secure its citizens a uniform code”.

The Uniform Civil Code’s debate caught fire after the 16th Law commission uploaded a questionnaire and sought suggestions from people regarding the Uniform civil code. Once again the debate caught fire after the case of Shayra Bano, which is also known as the anti-triple talaq or triple talaq case. Though the Shah Bano case paved the way toward Shayra Bano’s judgement, one thing was similar in both the judgments which is the court’s emphasis on the adoption of uniform civil code.

Most recently, in Shayra Bano’s case, the supreme court held the practice of triple talaq is unconstitutional because it is arbitrary in nature, violates women’s rights and questions the sanctity of a marriage. This is the case where the apex court threw light on the existing circumstances of women in our country and the way personal laws are suppressing them. According to the Court, for curbing the menace of triple talaq and similar personal law practices, it is the urge to enact Uniform Civil Code. After this judgement, a hue and cry were made by muslim scholars stating it was an act of judicial overreach. Meanwhile, to make an immediate effect to the Supreme Court Verdict, the ordinance on Muslim women (protection of rights on marriage) along with two other ordinances promulgated. After this landmark case, the BJP party in its 2019 manifesto, stated that once their government will be formed, they will adopt Uniform Civil Code to promote gender equality and to put a bar on the practices causing women to suffer.

Proposed Merits and foreseeable Demerits of the Uniform Civil Code

Merits:

Reduce gender-based discrimination

The adoption of a uniform civil code will eradicate the gender-based inequalities in society and will empower women by strengthening their rights in various aspects including their equal rights in property and marriage. Uniform Civil Code will lay emphasizes on equal status to all citizens concerning their role in society. Many religious scriptures are found against certain people and prohibit them from performing certain activities, all these humiliating practices will be dissolved after the adoption of the Uniform civil code. Earlier, in Hindu law, daughters didn't have the right to inheritance of the property but after the modernisation of Hindu Succession Act, now daughters have an equal right to inheritance as that of a son. Similarly, in Muslim law, some issues which seems to suppress women’s right like triple talaq, polygamy, concept of Khula and Halala etc. Likewise, in Christian law, a man can divorce his wife, if she commits adultery, unlike a Christian woman’s situation. If a Christian woman seeks divorce, she has to prove two offences committed by her husband, e.g. adultery and cruelty or adultery and desertion. All such discriminatory practices need to be stopped and hence Uniform Civil Code can help in improving the overall situation of women.

Help early disposition of civil matters

The adoption of the Uniform Civil Code will help the courts in early resolution of disputes related to marriage, divorce, property inheritance etc. Somehow personal laws hinder the early disposition because of the complex nature of law and diversity in culture. At times, practices that are promoted by a religious community are inconsistent with the idea of justice and equity and also violative of human rights like female genital mutilation, . All such practices can be barred by implementing uniform civil code in which there will be no place of customs and religion.

Promote idea of secularism

The adoption of a uniform civil code will promote the idea of secularism, which is one of the essential components of the basic structure of the Indian constitution which states that states shall not promote any religion, by uniform Civil laws, the secular fabric of India can be strengthened. The unification of thoughts and practices is important to unite a nation.

Promote development in society

The adoption of the Uniform Civil Code will help in the overall development of society. If we look at the developed nations, they all have a uniform civil code because it is an indication that society has learned the lesson of equality and moved away from caste and religious politics. People share the idea of oneness because of being governed by the same laws which eventually develops the idea of brotherhood. When society removes the barrier of caste and religion, their ideas widen and their perspective towards societal development changes.

Demerits:

Practically difficult to implement

India has a variety of cultures and is known for its diversity. People here follow different religions and have different beliefs, they follow different practices and are governed by different personal and customary laws. In such a situation, it is hard to bring a law that can satisfy the needs of everyone. In India, though the gotra marriage is not allowed, but on the other hand, there is a Hindu community that follows the customary practice of Maman Kalyan, where the eldest daughter of a sister marries her mama based on the concept of “ what you take, you will return”. This marriage is an exception to Hindu codified law, but the question here is, what about the other forms of custom, does the Uniform civil code add similar exceptions? And if the answer is in affirmative, then what is the rationale for having the same law for all. We can’t idealise developed nations with regard to their uniform civil code because they are not as diverse as India.

Violation of fundamental rights

Our constitution has safeguarded the religious right of every individual under Articles-25 to 28. Our constitution has promoted freedom with regards to practice, professing and promoting the religion of individual’s choice and managing its religious affairs and once a uniform Civil Code will be adopted, there is a high risk of breach of these rights. In the case of Minerva Mills v. Union of India, the hon’ble supreme court with the help of the preamble established a relationship between Directive principles of state policy and fundamental right. The hon’ble Supreme Court held that the law needs to maintain harmonious construction between fundamental rights(part III) and Directive Principles of state policy (Part IV). Neither of them can be subservient to the other and if Uniform Civil Code does anything which will be violative, then it is useless because every law needs to maintain a balance between Fundamental Rights and Directive Principles of State Policy.

Conflict of interest

There is fear among the minorities that the uniform civil code is an intended step of the government to overlook the interest of minorities. According to the minority communities, the laws in the uniform civil code will be made keeping in mind the majority’s personal laws rather than the minority’s personal laws which can create huge inconvenience to the minorities and can make them feel neglected.

Against the pluralist and multi-culture of India

The beauty of India lies in its diverse culture and practices, beauty is in the inherent feature of co-existing in the same place with different thoughts and beliefs.

The Indian population consists of the Hindus (82.41%), Muslims (11.6%), Christians (2.32%), Sikhs (1.99%), Buddhists (0.77%) and Jains (0.41%). The Hindus themselves are divided into several sects such as Vaishnavas, Shaivites, Shaktas, Smartas etc. Similarly, the Muslims are divided into sects such as Shias, Sunnis, Ahmadiyas etc. The languages spoken in India belong to several language families, the major ones being the Indo-Aryan languages spoken by 75% of Indians and the Dravidian languages spoken by 20% of Indians. Other languages belong to the Austroasiatic, Sino- Tibetan, Tai-Kadai, and a few other minor language families and isolates. India has the world’s second highest number of languages and to preserve the plurality and diversity of India, It is important to preserve personal laws.

Manipulation of Gender Justice for political gain

In the name of Gender Justice, the government is fueling women to raise voice against their personal laws and targeted women are from minority communities, why so?

The reason is simple: they have ulterior motives which need to be satisfied. If the government is concerned about women, why are they not creating a better protective society and a mechanism which can redress the grievances of women at earliest? We are living in a society, where every other day, we read in news papers about rapes, dowry deaths and harassment. If we look into the aspect of triple talaq only, it was nowhere in the quran that there is anything like instant talaq, it was the wrong interpretation of Surah Talaq and making it a ground to nullify all the Muslim personal laws is arbitrary.

Conclusion:-

In the Uniform Civil code, what people usually overlook is the use of the term “uniform”, whose dictionary meaning “is of the same form as others : conforming to one rule or mode” which literally implies that similar should be treated similarly. Let’s take an example, in a school premises, every student is required to wear a uniform so that they can look equal but in the same premises, teachers and other staff used to come without a uniform. One may ask when, why is it so..? Same school, people under the same premises but have different rules?

The simple answer, equals will have to follow the same rules so that they can be treated alike. Word in Article 44 is Uniform and which means equal should be treated alike, but this similarity doesn’t exist in our country with regards to personal laws because of the diversity.

Besides, we already have some secular civil laws such as:-

Special Marriage Act, 1954

Indian Succession Act 1925

The Guardians and Wards Act, 1890

And many of them are not either known by people or have never been used by people because they consider their laws pious and sacred. On the other hand, several provisions of these laws are inspired from the provisions of Hindu Codified law, e.g. several provisions of the Special marriage act are inspired from Hindu marriage act and this has been a reason of apprehension that the uniform civil laws will be inspired by Hindu laws. My view is that of the 18th law commission which was headed by former Supreme Court Judge B.S. Chauhan and the commission stated that “ A uniform civil code is neither necessary nor desirable at this stage in the country. Cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation. A unified nation did not necessarily need to have “uniformity”. “Efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights.”

If the government wants to provide more rights to women and wants to eradicate gender based inequalities then the personal laws should be modernised rather than imposing a law which is actually going to nullify their personal laws. Uniform Civil Code is introduced as Secular Law and secular means “separation of religion from the state” and doesn’t mean state will impose a law that will overlook the religious identity of citizens.

References:

https://www.business-standard.com/about/what-is-uniform-civil-code.

https://in.style.yahoo.com/why-is-it-important-to-implement-uniform-civil-code-115546697.html.

https://www.thestatesman.com/supplements/law/india-needs-uniform-civil-code-1502922940.html.

https://timesofindia.indiatimes.com/india/no-fixed-timeframe-for-uniform-civil-code-due-to-sensitivity-and-in-depth-study-says-centre/articleshow/85071803.cms.

Dhagamwar, Vasudha, and Indian Law Institute. Towards the Uniform Civil Code. 1989

Parashar, Archana. Women and Family Law Reform in India: Uniform Civil Code and Gender Equality. 1992.

Shetreet, Shimon, and Hiram E. Chodosh. Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse. Oxford University Press, 2015.

Hazarika, Raya. �Should India Have a Uniform Civil Code?� SSRN Electronic Journal, 2010.

Sharma, Sharda Girijesh. Uniform Civil Code and Adoption Laws in India. SSRN.

The Indian Christian Marriage Act, 1872.

The Indian Succession Act, 1925.

The Child Marriage Restraint Act, 1929.

The Parsi Marriage and Divorce Act, 1936.

The Dissolution of Muslim Marriage Act, 1939.

The Special Marriage Act, 1954.

The Hindu Marriage Act, 1955.