Uniform Civil Code
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Why in the news
Recently, the Supreme Court in a case concerning the question of whether succession and
inheritance of a Goan domicile is governed by the Portuguese Civil Code, 1867 or the Indian
Succession Act of 1925, held that:
The Constitution in Article 44 requires the State to strive to secure for its citizens a
Uniform Civil Code(UCC) throughout India, but till date, no action has been taken in
this regard.
The Hindu personal laws were codified in the year 1956. However, there has been no
attempt to frame a Uniform Civil Code applicable to all citizens of the country.
Despite exhortations of this Court in the case of Shah Bano in 1985, the government
has done nothing to bring the Uniform Civil Code.
The Supreme Court hailed the State of Goa as a “shining example” where “uniform civil
code” is applicable to all, regardless of religion except while protecting certain limited
rights.
Goa has a common civil code called Portuguese civil code 1867, whereby:
A Muslim man whose marriage is registered in the State cannot practice polygamy.
A married couple share property equally, pre-nuptial agreements are the order of the
day and assets are divided equally between the man and woman on divorce.
Uniform Civil Code
Uniform Civil Code seeks to replace personal laws based on the scriptures and
customs of each major religious community in India with a common set of rules
governing every citizen.
Status of Personal Law in India
Personal law subjects like marriage, divorce, inheritance come under Concurrent list.
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Hindu personal laws have been by and large secularized and modernized by
statutory enactments.
The Hindu personal laws (that apply also to the Sikhs, Jains and Buddhists) have
been codified by the Parliament in 1956
This Code Bill has been split into four parts:
The Hindu Marriage Act, 1955
The Hindu Succession Act, 1956
The Hindu Minority and Guardianship Act, 1956
The Hindu Adoption and Maintenance Act, 1956
On the other hand, Muslim personal laws are still primarily unmodified and traditional
in their content and approach.
The Shariat law of 1937 governs the personal matters of all Indian Muslims in
India.
It clearly states that in matters of personal disputes, the State shall not interfere
and a religious authority would pass a declaration based on his interpretations
of the Quran and the Hadith.
Apart from it, Christians and Jews are also governed by different personal laws.
Need for a Uniform Civil Code
Different personal laws promote communalism and it leads to discrimination at two
levels:
First, between people of different religions.
Second, between the two sexes.
Uniform Civil Code will provide women with the right to equality and
justice in courts of law- irrespective of their religion in matters pertaining
to marriage, divorce, maintenance, custody of children, inheritance rights,
adoption, etc.
The Supreme Court for the first time directed the Parliament to frame a UCC in the
year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum , popularly
known as the Shah Bano case.
In this case, Shah Bano claimed for maintenance from her husband under
Section 125 of the Code of Criminal Procedure after she was given triple talaq
by him.
However, government 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 of the Code of
criminal Procedure.
The Supreme Court in Shayara Bano case (2017) had declared the practise of Triple
Talaq (talaq-e-bidat) as unconstitutional.
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Challenges associated with UCC
Constitutional challenges
Freedom of religion gets into conflict with the right to equality.
Article 25 lays down an individual’s fundamental right to religion.
Article 26(b) upholds the right of each religious denomination or any section
thereof to “manage its own affairs in matters of religion”
Article 29 defines the right to conserve distinctive culture.
These rights gets into conflict with the equality before law enshrined under
article 14 and 15.
Moreover, an individual’s freedom of religion under Article 25 is subject to “public
order, health, morality”.
In 2018, a report by the Law Commission of India stated that the Uniform Civil Code is
“neither necessary nor desirable at this stage” in the country. The Commission said
secularism cannot contradict the plurality prevalent in the country.
Social-political challenges
In the name of uniformity, the minorities fears that the culture of the majority is being
imposed over them.
Given vast cultural diversity in India, bringing uniformity among all such people will be
a huge challenge.
Patriarchal mindset of Indian society poses a big challenge in implementation of UCC.
This can be reflected by the fact that, the Hindu code bill has been already in
place from mid-1950s, yet the quantum of land actually inherited by Hindu
women is only a fraction of the land they are entitled.
Merits of Uniform Civil Code
National Integration
A unified code is imperative, both for the protection of the vulnerable sections in
Indian society(women and religious minorities) and for the promotion of
national unity and solidarity.
Simplification of laws
There exists so many personal laws like Hindu code bill, Shariat law, etc.
Presence of so many laws creates confusion, complexity and inconsistencies in
the adjudication of personal matters, at times leading to delayed justice or no
justice.
UCC will eliminate this overlapping of laws.
Simplification of Indian legal system:
UCC will lead to reduction in litigation emanating from multiple personal laws.
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Establishing a secular society:
UCC will de-link law from religion which is a very desirable objective to achieve in
a secular and socialist pattern of society.
Moreover, it fulfill constitutional mandates under Article 44 of Directive
Principles of State Policy.
Gender justice:
The rights of women are usually limited under the patriarchal discourse through
religious laws.
UCC will liberate women from patriarchal domination and provide them with
right to equality and liberty.
In the long term, UCC would lead to the defeat of the communal and the divisionist
forces.
Way Forward
The social transformation from diverse civil code to uniformity shall be gradual and
cannot happen in a day. Therefore, the government must adopt a “Piecemeal”
approach.
Government could bring separate aspects such as marriage, adoption,
succession and maintenance into a uniform civil code in stages.
Government must emulate Goan practice of a common civil code, which has been the
law since 1867, when the state was under the Portuguese colonial rule.
Moreover, when constitution espouses the cause of Uniform civil code in its Article 44,
it shouldn’t be misconstrued to be a “common law”.
The word uniform here means that all communities must be governed by
uniform principles of gender justice and human justice.
It will mean modernization and humanization of each personal law.
It would mean, not a common law, but different personal laws based on
principles of equality, liberty and justice.
Government has to take steps towards increasing the awareness among the public,
especially minorities, about the importance of having a UCC.
The UCC must carve a balance between the protection of fundamental rights and religious
dogmas of individuals. It should be a code, which is just and proper according to a man of
ordinary prudence, without any bias with regards to religious and political considerations.
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