The dialogue over the uniform civil code is not a new one but is the one that has intensified in the recent modern times. With the judgment of Triple Talaq[i] and Sabarimala Temple[ii], it had led to the thinking of creating legislation that will be universal in operation by replacing the various personal laws prevalent. But this transition is not easy. It requires looking at the uniform civil code from all perspectives, to measure the merits in it and the issues that might arise on the way. Further, the judicial overview of the uniform civil code and the constitutional framework is necessary.
What is Uniform Civil Code?
A Uniform Civil Code (UCC) means legislation that takes the place of all the current personal laws that exist causing difficulties and complexities. This legislation is based on all the religious communities combining them to form a single undisrupted statute. This commonality of laws like Indian Penal Code, 1890 or any other law in the country will not be divided on any ground. It will regulate and enforce the practice of personal law through the aggregation of all the religious practices. A uniform civil code will cover all matters like marriage, adoption, divorce, inheritance, maintenance, etc. This is the legislation that will be applicable, once brought into law, to everyone irrespective of their religion.
India has ratified international provisions like International Covenant on Civil and Political Rights in 1966 among others. Through these, the state is bound to have equality in the nation’s laws. But women still face discrimination under personal laws and in matters of marriage, divorce, etc.[iii] Thus, the step at reform arises through the use of the legislative framework and government initiative. A civil code that governs all the personal laws and making sure that equality for women is achieved is a must. Almost all the nations in international nation-states have a uniform civil code that promotes equality, integrity and secularism over the world, be it in France, after Napoleon or in the United States.
Law Commission’s Report
The Law Commission gave its report[iv] on the uniform civil code on 31st August 2019. The issue came before it when the Ministry of Law and Justice asked the Law Commission of India to “examine matters in relation to uniform civil code” on 17th June 2016. The report acknowledged that there is discrimination against women in society through personal law. This inequality is to be addressed through “a range of amendments to the existing family laws”. They, further, presented that the poor treatment of the women can be addressed through “codification of certain aspects of personal laws so as to limit the ambiguity in interpretation and application of these personal laws”.
The Law Commission explained in its consultation paper “most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but it is indicative of robust democracy”. The Law Commission quoted that “the legislature should first consider guaranteeing equality ‘within communities between men and women, rather than ‘equality between’ communities”. The report mentions that “inequality can be weeded out without absolute uniformity”.
The suggestions given by the Law Commission that it is not yet desired to bring a uniform civil code is an archaic one. The quoting that equality should be first resolved within communities, rather than between communities is a backward way of looking at the society. It can be seen that there is an injustice against women through personal laws, the increase in communal violence, the garb of personal laws to get immunity and the decreasing national spirit are to name a few reasons for the declining value of separate personal law legislation for each unique culture. A uniform civil code will bring everyone together by strengthening integrity and fraternity and eliminating the adversities.
UCC in Indian Constitution
The Constitution since it came into force in 1950 has asserted the importance of a uniform civil code. The Constitution makers deliberately added Article 44 because they envisioned a society with uniform civil code. It was done to solve the problem of several personal laws prevailing at once creating a stage of unrest and conflicting laws.[v] Through Article 44[vi] as a Directive Principle of State Policy, the State is given the power to provide for such a development in the society. The Supreme Court[vii] has even directed in its judgment the state for the formation of a uniform civil code.
The conflict arises for the uniform civil code under Article 25 to 28 which enlists the freedom of religion as a fundamental right. The need to understand is that the uniform civil code in no way will stop the functioning of these fundamental rights. The freedom of religion and Article 44 which provides for uniform civil code will exist in harmony with each other as there is no conflict between them. A uniform civil code does not take away the freedom to profess, practice of propagating any religion. It provides a mechanism for bringing the laws in concord and unity with each other.
The Preamble of the Constitution itself ensures the secularism. Secularism means equal treatment given to all religions without any biases. The Supreme Court[viii] has held in its landmark judgment that secularism is a part of the basic feature of the Constitution of India and that everyone has the right to freedom of religion where no one will be discriminated against on that basis. It further said, “from the point of view of the state, religion, faith or belief of a person is immaterial.” It is, thus, a positive feature of the Preamble of the Constitution.
Advantages of UCC
The advent of debate over the Uniform Civil Code in recent time exists because of the unfair laws in respect to a gender prevailing in the form of personal family laws. The several advantages of bringing a uniform civil code are:
a) To Reach Gender Justice
In many personal laws, there exists a situation where one gender is not given equal treatment as the other gender. A uniform civil code will ensure a framework that will provide equality to both men and women by prohibiting certain discriminatory practices. Where, for example, in certain personal law, polygamy is prohibited and penal in nature, while in other personal law it is absolutely permitted. This causes biasness and discriminatory behavior. It can be seen through the landmark judgment of Shayara Bano V. Union of India & ors.[ix], which prohibited the discriminatory practice of triple talaq against women.
b) Simplication in laws[x]
One of the problems arises with personal laws is that it paves the way for complexities and inconsistencies. A uniform civil code will help when there will be less time taken to resolve family matters leading to quick judgment. It will ensure that there is no delay injustice because “justice delayed is justice denied”. The uniform civil code will bring every personal law under one roof helping in creating a complete set of norms for the overall development of the country itself. It will, further, help in avoiding the overlapping of the cases.
c) National Integration in the Country
India is a country that strives to stand on the pedestal of “one nation, one law” ideology. This is necessary so that in the future the religious community might not break away from the country into a different fragment of their religion. A uniform civil code brings out the spirit of nationality and integration of society into a whole. It highlights that where a country is one, every religion cannot have different laws for themselves. It will ensure equality in society.
d) Constitutional Secularism[xi]
Secularism is enshrined in the Preamble of the Constitution and is considered as forming a part of the basic structure as well. Secularism gives the freedom to worship. This is necessary for a country that is diverse in its every corner. Secularism ensures the freedom of religion and to practice it. A uniform civil code will ensure a way to overcome the religious differences that are in existence. It will strengthen national unity. It will stop the communal practices existing and promote the essence of brotherhood and fraternity in the country.
e) Overcoming Communalism
Communalism exists in a society where it is divided on communal grounds. The political manifestation of communism is huge. It leads to disparity in opinion and unrest in society. A uniform civil code helps in bridging that gap and acting as a mediator by providing a measure to bring people from the different religious communities together through a legislative framework. It aids in linking the communities and will reduce communal violence. It will, in turn, increase the national spirit.
Problems regarding UCC
Though there are several advantages of UCC but several hurdles still exist. These might not be called disadvantages of UCC but a brief obstacle in the course of a race to win. These issues are:
a) Conflict With Religious Freedom[xii]
The Constitution under Article 25[xiii] guarantees the freedom of profession, practice, and propagation of religion. The dispute is increased where people believe that the right to practice their religion comes in conflict with the uniform civil code. The religious practices and beliefs are different, therefore, it might be construed as cumbersome the aggregation of all the personal laws into one. It is to be made sure that while drafting a uniform civil code, there shall not in any way be a restriction on the right of the religion of communities.
b) Diversity in the Country[xiv]
A country with such a diverse and distinct uniqueness might lead to unrest when single legislation in the form of uniform civil code will come into the picture. Every religion has different cultures and ways of living. To put all that in single legislation poses an issue in the society such as India. India is a culmination of several ethnicities, religions, etc. which acts as a barrier. But it is not an impossible task. Through UCC, gender equality can be ensured.
c) Disruption of Communal Harmony[xv]
The country had erupted in a debate over the uniform civil code. This is majorly related to the communal unrest the legislation might bring. Every culture has different practices and rituals and submerging them by introducing a culminated law will act as putting fuel to the fire. The communal harmony is of utmost importance which is ensured through secularism being part of the Constitution. Thus, it is necessary while framing legislation that involves all the religions to have due care and attention.
Judicial viewpoint on UCC
In the constitutional bench of the Supreme Court in Mohd. Ahmed Khan V. Shah Bano Begum and ors.[xvi], the then Chief Justice of Y.V. Chandrachud wrote the judgment for the bench where he mentioned that it is necessary to make sure that Article 44 of the Constitution does not remain a “dead letter”. He further said, “A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.” Moreover, the court said that no community can take concessions or immunities only on the basis of personal law. It is the duty of the state under Article 44 to remove any difficulties by “bringing people of different faiths and persuasions on a common platform”.
In the judgment of the Supreme Court of Smt. Sarla Mudgal V. Union of India and ors.[xvii], the court said that even after the introduction of the Constitution, Article 44 remains at the “cold storage”. There have been no efforts made “retrieve Article 44” by the Government. It has failed to bring a “unified personal law for all Indians”. Though, Justice Kuldip Singh gave the reason for non – formation of a uniform civil code in India as the government had already placed several legislation for the personal family laws like Hindu Marriage Act, 1955, among others where almost “80% of the citizens are already under the codified personal law”. He further added that there seems no reason now to keep Article 44 suspended for long and it is utmost important to introduce uniform civil code in India.
In the judgment of Ms Jordan Diengdeh V. S. S. Chopra[xviii], Justice Chinnappa O. Reddy emphasised that the situation has arisen in the Indian society “which focuses attention on the immediate and compulsive need for a uniform civil code.” The uniform civil code will provide universal grounds for marriage and divorce in all. This will ensure that no one can get concession because of the uneven or unlawful practice only on the ground of religion. The court emphasised that the “time has now come for the intervention of the legislature” for a uniform civil code through Article 44 of the Constitution. It becomes essential to make sure that the grounds of divorce and irretrievable break – down of marriage is present in all the cases.
In the recent judgment of Jose Paulo Coutinho V. Maria Luiza Valentina Pereira[xix] (2019), where Justice Deepak Gupta wrote the judgment for himself and Aniruddha Bose said that Goa is a successful specimen of the uniform civil code applicable without any conflict. It is in force with complete uniformity where it at places protects specific rights attached to their religion as well. The Civil Code of Goa governs the family dispute of all religions and acts as a diffuser of complexities. In Goa, “Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam, there is no provision for verbal divorce.” Thus, the court upheld that there is practicality in the dispute of the Uniform Civil Code. Thus, Article 44 in Part IV of the Constitution should become active by the state as a part of the Directive Principle of State Policy.
In the recent news[xx] of November 22, 2019, a civil judge in Uttar Pradesh gave the judgment of Muslim marriage by the legislation of Hindu Marriage Act and “granted the interim maintenance to be paid by husband to the wife”. The case came forward when it reached the division bench of the Allahabad High Court which shocked the bench. The family court judge who passed the judgment said that it was done by his predecessor. This shows the utmost need of the Uniform Civil Code. A number of legislation and personal laws increase the complexity in family court leading to an error in judicial pronouncement. Thus, a Uniform Civil Code will ensure regularity and universality in law.
Conclusion
Thus, it can genuinely be said that uniform civil code is not distinct and far from reach prospect in law. It has practical essence which can be seen through the directive principle of state policy in the Constitution. The government has to initiate an effort to provide a uniform civil code so that no one can get immunity because of personal law applicability. This will ensure solidarity and national integrity. This is to be drafted keeping intact the freedom of religion of people.
Endnotes:
[i] Shayara Bano V. Union of India and Ors., Writ Petition (C) No. 118 of 2016 [ii] Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors. (2018), Writ Petition (Civil) No. 373 of 2006 [iii] https://www.jstor.org/stable/43951938?seq=1 [iv]http://www.lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf [v] “Uniform Civil Code: In Retrospect and Prospect” by Kiran Deshta [vi] “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” – Constitution of India (Article 44) [vii] Mohd. Ahmed Khan V. Shah Begum and ors. 1985 AIR 945 [viii] S. R. Bommai V. Union of India 1994 AIR 1918 [ix] Writ Petition (C) No. 118 of 2016 [x] https://www.drishtiias.com/to-the-points/Paper2/uniform-civil-code [xi] https://muse.jhu.edu/article/31888/summary [xii] https://www.iasexpress.net/uniform-civil-code/ [xiii] “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion.”- Constitution of India (Article 25) [xiv] https://www.clearias.com/uniform-civil-code-ucc/ [xv]https://pdfs.semanticscholar.org/927e/3d77732a278f94dc07c98cce264d8703fdc8.pdf [xvi] 1985 AIR 945 [xvii] 1995 AIR 1531 [xviii] 1985 AIR 935 [xix] Civil Appeal No. 7378 of 2010 delivered on 13th September, 2019 [xx] https://timesofindia.indiatimes.com/india/up-judge-applies-wrong-law-hc-summons-his-successor/articleshow/72178494.cms
Arushi Anand
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Good article.
Thanks
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