A socio-legal study of Uniform Civil Code: Need and Challenges

Abstract: The problem of a civil code has been recurring one throughout the history of states. The issue of framing a Uniform Civil Code has been a subject of continuing debate since 1950. Article 44 of the Indian Constitution which is a directive principle lays obligation on the state to secure for the citizens a Uniform Civil Code throughout the territory of the India. But 50 years later this is yet to become a reality. The Apex court has reminded the legislators to fulfil their obligation under this said article. The courts have shown concern over contradictions in the personal laws of various communities and emphasized the need to enact a Uniform Civil Code for all citizens of India. Therefore, a comprehensive socio-legal study is required to examine the desirability of Uniform Civil Code in the present society.



By Richa Singh

Uniform Civil Code means that same set of personal laws apply to all civilians irrespective of their religion. In fact most laws in the country are uniform. Laws pertaining to crimes and punishment, trade and commerce, taxation and education, laws relating to evidence are uniform. There are laws all citizens are expected to follow that pertain to governance. The Indian Constitution, however, has permitted family affairs like marriage, divorce, inheritance, guardianship and adoption to be governed by customs or rules applicable to the persons and their community. It is a very small area. This diversity, however, is not merely for the minorities. Even in the Hindu Marriage Act there is exemption of certain clauses where custom or usage governing each of the parties is permitted.


If one is married under the Hindu Marriage Act, the law applicable for divorce would be Hindu law. Similarly, the legality of marriages involving cousins prevalent in certain groups of Hindus belonging to South India is protected by this exemption. Courts have recognised certain tribal customs as ‘other laws’ thereby exempting the members of certain tribes from the applicability of the Hindu Marriage Act. That means, even Hindu Marriage Act is not uniform for all Hindus covered by the Act. With the tribal self-rule law, tribal are exempted from local self-government laws and permitted to have recourse to their customary laws. The tribal of the North-East own property collectively and there is no provision for private property there.


Communities have their own customs and traditions that they do not want to give up. Marriage is a community celebration and as long as communities are different, they will have different customs and traditions. It is not easy therefore to adopt a uniform civil code since communities are all guided by their religious, social and customary laws. If a set of rules that violate the customary and religious laws are forced on the communities by the state, it would amount to the denial of the basic right of freedom of conscience. Democracies have to learn to respect both individual and community rights of people. That is why there is a need to broaden the debate of uniform civil code beyond four wives and three talaqs to caste discrimination, honour killings, khap panchayat and devadasi system still prevalent in spite of their abolition.


Moreover child marriages, human trafficking, bonded labour, dowry and other discriminatory practices persist in the country, which are seems to be more important than Uniform Civil Code. Given the problems of discrimination, corruption, communalisation and increasing poverty in the vulnerable sections, at this point of politics we may not really require a discussion on a uniform civil code. These are major concerns for the country than uniform civil code. We are a multi-cultural society and the country needs to be tolerant about all communities.


Historical Prospective of Uniform Civil Code


It’s believed that when the Constitution of India was written there had been plenty of debate over the issue, but there was no concrete outcome. Eventually a compromise was reached and Uniform Civil Code became only a directive principle. However, this compromise was severely objected to by several members of Constituent Assembly such as Minoo Masani, Rajkumari Amrit Kaur, and Hansa Mehta. Kaur had in fact stated that the religion-based personal laws were creating divisions within the country by compartmentalizing various aspects of life and thus stopping India from becoming a nation. In fact, Article 44 has always been contentious — as Article 35 of the draft Constitution; it was one of the most debated clauses in the Constituent Assembly as it set about the task of drafting a new Constitution for the recently-independent sovereign nation of India.


The Constituent Assembly saw a division along communal lines among members, and the clause was adopted only after BR Ambedkar, Chairman of the Constitution Drafting Committee, assured the minorities that the Article would not be thrust upon them. The supporters of Uniform Civil Code also state that BR Ambedkar had championed the cause of Hindu Code Bill because he saw it as an opportunity to provide more power to women. Hamid Dalwai, a noted Islamic social reformer, also supported the Code and a major component of his campaign was greater rights for women. Later on, during the first 10 years of Independence, Indian government passed Hindu Code Bill in spite of staunch opposition from conservative Hindus. However, they could not do the same with Muslims since they felt that they were still recovering from the trauma of Partition and thus there was no need to engage them in a negative manner and change their personal laws.


According to people who support Uniform Civil Code, this was a mistake that they made. According to the supporters of implementation of Uniform Civil Code, there are two major reasons as to why it should be done. With Modi administration asking Law Commission to look into possible implementation of the same, they are hopeful that finally the code, which has been in limbo for such a long time, would be pressed into action. The supporters are saying that because India is supposed to be a secular republic, all its citizens should be subject to the same laws. They don’t buy into the concept of different laws for people with differing religious affiliations. They also feel that for years the rights of women have been limited because of religious laws. With a Uniform Civil Code that may not be the case anymore. They have pointed to the fact that Shah Bano Case is not the only one where the judiciary called for Uniform Civil Code – there were some other major cases as well where similar rulings were awarded.


In the case against implementation of a Uniform Civil Code in India, it is often argued that since India is a secular, democratic republic and since its Constitution guarantees minorities the right to follow their own religion, culture and customs, implementing a common code of personal laws covering property, marriage, divorce, inheritance and succession would go against India's secular fabric.


Muslim personal law is a cultural issue; it is inextricably interwoven with the religion of Islam. Thus, it is the issue of freedom of conscience guaranteed under Articles 25 and 26 read with Article 29 of the Constitution. To argue that Article 25, which confers right to religion militates against a common civil code is a red herring. It is invalid and a spurious conflation. Right to worship or to practice religion should not be confused with individual rights relating to inheritance, marriage or divorce.


Constitution of India


Part IV of the Constitution of India deals with the Directive Principles of State Policy, which aren’t enforceable by any court, but which are supposed to play a fundamental role in the governance of the country, with the government duty-bound to apply these principles in making laws. Among other Directive Principles is Article 44, which asks the State to “endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”. The Uniform Civil Code is currently at the centre of heated public debate, with the All India Muslim Personal Law Board accusing the government of attempting to sneak it in under the garb of promoting gender equality through its opposition to triple talaq in the Supreme Court.


Article 13, 14 and 21 of the Constitution are relevant here. Article 13 declares that all the laws, customs and practices prevailing prior to the enactment of the Constitution would be invalid to the extent of being violative of the provisions of the Constitution. Article 14 promises equality before the law. Article 21 promises the right to life of dignity. Unfortunately, some earlier judgements of the Supreme Court dilute the provisions of Articles 13 to exempt personal laws. As a result, pernicious practices under the guise of personal laws continued.


The object of incorporating Article 44 in the Constitution is to govern all relationships of life by uniform system of law for the reason that human relationship and human requirements do not differ by the mere fact that different persons belong to different religions. The true objective of its endorsement in our nation charter is to use it as a weapon of national integration. The Constitution was enacted for the whole country and every system and community must accept its provision and its directives.


Debate on Uniform Civil Code


For the past several weeks there have been screeching debates on prime TV on the Muslim Personal Law and the need for a Uniform Civil Code. Unfortunately these issues are being dealt with only from the following three perspectives:


1. A patronizing patriarchal perspective – which assumes the sub-ordination of women to men;


2. The religious perspective – pertaining to the validity of certain practices under the religion;


3. The economic perspective – concerning the rights of the “second” wife.

In this context, two articles “Multiple ways to Equality” by Mr. Faizan Mustafa, Vice-Chancellor of NALSAR, Hyderabad (published in the Indian Express dated 28-10-2016) and “Situating law in the land” written by Mr. Faizur Rehman, a Chennai-based independent researcher (published in the Hindu dated 28-10-2016) are also relevant. Both the authors have relied on empirical data to show that delegitimization of bigamy under the Hindu law has not succeeded in curtailing the practice of bigamy among Hindus.

In my humble view these are incorrect premises for such a debate. The entire argument on triple talaq and polygyny is cantered around the argument whether these practices are valid or not under the Sharia. The opinions of several medieval jurists are batted around to either justify or condemn these practices. The point that is being missed here is the geographical and political location of the issue. The debate should be on the rights of women within the geographical territory of India governed by a Constitution that promises equal rights to its entire citizen and not to religious validity of practices that impinge on such rights. The question should be not what is valid in a particular religion but what is valid under the constitution.


India needs a uniform civil code for two principal reasons.


First, a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices. This was a key issue debated during the writing of the Constitution, with passionate arguments on both sides. The Indian Constitution was eventually stuck with a compromise solution, a directive principle that says: “The state shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” “One of the factors that have kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life.”


Later, in the first decade after independence, the opposition from Hindu conservatives to the Hindu Code Bill was eventually overcome. Nothing similar was tried when it came to Muslim conservatives. The political leadership of the day mistakenly decided to not take on conservative Muslim opinion just after the trauma of partition.


Second reason why a uniform civil code is needed: gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example. It is important to note that B.R. Ambedkar fought hard for the passage of the Hindu Code Bill because he saw it as an opportunity to empower women. The great Muslim social reformer Hamid Dalwai also made the rights of women a central part of his campaign for a uniform civil code.


It is unfortunate that the demand for a uniform civil code has been framed in the context of communal politics. Too many well-meaning people see it as under the garb of social reform. They should understand why even the courts have often said in their judgements that the government should move towards a uniform civil code. The judgement in the Shah Bano case is well known, but the courts have made the same point in several other major judgements. The move towards a common civil code cannot be a hasty one. There is the obvious political challenge on assuaging the fears of the Muslim community. The government will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives.


One strategic option is to follow the path taken after the fiery debates over the reform of Hindu civil law in the 1950s. Rather than an omnibus approach, the Modi government could bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages.


Advantages of Uniform Civil Code


Gender equality

By the implementation of a uniform civil code across the nation will enable to abolish gender discrimination from the nation. For example, according to various religions, inheritance, marriages etc are male dominated. After seven decades of independence also women are battling for equality. Modern, liberal and gender-sensitive civil code is need of the hour.


A boost to national integrity

The formation of Uniform Civil Code (UCC) will boost the national integrity. Even though our country has diverse cultural values, a unified personal law irrespective of gender, caste, creed etc will boost the national unity.


Cornerstone of secularism

The preamble of our constitution clearly states that India is a sovereign, socialist, secular state. But it is high time to think that whether the citizens of India will enjoy real secularism without the implementation of UCC. Even after decades of independence also different personal laws are in existence for different religions.


Social reforms

Once the UCC is formulated across the nation, India will undergo another social reform in this century. For instance, in Indian context, Muslim women are denied with personal laws in relation to marriage, divorce etc. On contrary, various Muslim nations like Pakistan, Bangladesh, Turkey, Morocco etc women enjoy codified personal laws. So after the implementation of UCC Indian women [especially Muslims, Christians etc] will also enjoy a codified personal law. Therefore, there will be a stepping stone towards another social reform across the country


Status of Women

It will enhance the status of women and so-called lower castes as many personal laws are biased against them.


Secularism

Article 25 and 26 guarantee freedom of religion and UCC is not opposed to secularism. There are signs that the Nation is moving away from caste and religion considerations. The Shah Bano case is often referred for a UCC.


Biased Islamic Laws

The biased Islamic laws against women are also seen as a reason for the demand for a UCC.


One India – One Law

One India-One law is also a reason behind the need for a UCC.


Disadvantages of Uniform Civil Code


A threat to communal harmony

Potential misunderstandings regarding Uniform Civil Code created a fear among various religions especially minorities. It is often viewed by many religions that UCC is aimed against their religious customs and values. Before the implementation of UCC, authorities should win the trust of minorities.


Government’s interference into personal freedom

It is often viewed by many that it is the crocked game of the government to interfere in personal freedom of individuals. But Uniform Civil Code is aiming only to protect and safeguard the rights of all citizens.


Difficulties due to India’s diversity

The implementation of Uniform Civil Code is a cumbersome task due to wide diversity of our nation. Cultural differences from state to state and community to community is yet another hindrance for a unified personal law. Change in laws in favour of women like Hindu inheritance Act has neither brought about any change in the percentage of property held by women nor in their status.

There is doubt to impose personal views of the majority on the minorities. UCC will kill the freedom of minority religions to practice their beliefs.


Conclusion


The implementation of Uniform Civil Code can be considered as the need of the hour. Even after years of achieving independence, citizens are not enjoying real freedom yet. Unified personal law cannot be viewed with religious emotion but it as the need for the country.

I am of the firm view, marriage, divorce, inheritance and right to property these things should be common. Other things, of course, what is the way of worship, what is the way of other practices should be left to individuals. There is nothing against any religion in common civil code. The Judiciary has played a very dynamic role by stressing upon the need for the enactment of Uniform Civil Code under Article 44 which is part of Directive Principles of State Policy of the Constitution of India. Now, active efforts i.e. political courage, vision and commitment to equality is required on the part of the government because the stability of a society depends to a large extent on the preservation and maintenance of just and equitable relationships among individuals not only in the professional and public life, but also within the four corners of home.


When more than 80 per cent of the citizens have already brought under the codified personal law, there is no justification whatsoever to keep in abeyance any more, the introduction of Uniform Civil Code for all citizens in the territory of India. However no further steps were taken for enacting a civil code for all Indians. This reluctance on the part of the Government to pass a civil code is based on the apprehension that the party may lose the support of the Muslims at the time of election. Non-implementation of the Uniform Civil Code is a very serious infirmity in the evolution of a secular community in India. It is high time some decisive action is taken in this behalf without any delay. It is time for the intellectuals of India to undertake the important and urgent task of educating the follow citizens showing them the rational virtue of the proposed card.

(Author is Assistant Professor, Department of Political Science, GLA College, Daltonganj, Palamau, Jharkhand)


References


Ahmad, Tufail. "My blueprint for the Uniform Civil Code". Retrieved 30 November 2016.

Anand, Utkarsh (13 October 2015), Uniform Civil Code: There’s total confusion, why can’t it be done, SC asks govt, New Delhi: The Indian Express

Anil Chandra Banerjee (1984). English Law in India. Abhinav Publications. p. 134. ISBN 978-81-7017-183-6.

Boyle, Kevin; Sheen, Juliet (2013-03-07). Freedom of Religion and Belief: A World Report. Routledge. pp. 191–192. ISBN 9781134722297.

Chavan & Kidwai 2006, p. 13–20. "Call to implement Goan model of civil code". New Indian Express. 15 May 2012. Retrieved 22 October 2013.

Chavan, Nandini; Kidwai, Qutub Jehan (2006). Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code. Hope India Publications. ISBN 978-81-7871-079-2.

Lawrence, Bruce B; Karim, Aisha (2007). On Violence: A Reader. Duke University Press. ISBN 0-8223-9016-7

Muslim intellectual proposes a revolutionary Uniform Civil Code. The Statesman. Retrieved 30 November 2016.

Samaddar, Ranabir (2005). The Politics of Autonomy: Indian Experiences. SAGE Publications. ISBN 978-0-7619-3453-0

Sarkar, Sumit; Sarkar, Tanika (2008). Women and Social Reform in Modern India: A Reader. Indiana University Press. ISBN 978-0-253-22049-3.

Shiv Sahai Singh (1 January 1993). Unification of Divorce Laws in India. Deep & Deep Publications. pp. 7, 287–288. ISBN 978-81-7100-592-5.

The Constitution of India, Right to Freedom of religion, Article 25(PDF)

275 views

© 2020 by Academics4Nation