UCC: Need Of The Hour

Article 44 of the Constitution is considered one of the most important

Directive Principle Of State Policy which states that, “Uniform civil code for the citizens The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. It means a common set of civil laws irrespective of caste, class, religion, gender etc. This comes into more importance as being in the manifesto of the presently elected government. Since the government was elected into power with this manifesto, one might assume that this might be the interest of the majority of the country.

Article 44 suggests the implementation of Common personal laws for all citizens of India, all religions included. While this was the constitutional vision for 70 years and part of a huge controversy and debate, why hasn’t it still been implemented?

The word “Secular” inserted by the Constitution (42nd Amendment) Act, 1976, explains that the State does not recognize by one religion. It treats all religions equally, and with equal respect without, in any manner, interfering with their individual rights of religion, faith or worship. It does not mean that India is an anti – religious State. That, in the matters of religion, the State is neutral. Secularism could not contradict the plurality prevalent in the country. It is what makes the country unique in terms of the diversity.

India is known and commended throughout the world to acknowledge diversity and to not declare one religious ideology as above all. It is known to respect all religions and that can be owed to the uniformity of Fundamental Rights in the Constitution; These include individual rights common to most, such as, equality before the law, freedom of speech and freedom of expression, religious and cultural freedom, Freedom of assembly (peaceful assembly), freedom of religion (freedom to practice religion), right to constitutional remedies for the protection of civil rights by means of writs such as Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto. The term secularism has meaning only if it assures the expression of any form of difference.

In Article 25 of the constitution, it ensures the Freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health and to the other provisions. It allows the expression of all religions equally which is secured under this article. This diversity, both religious and regional should not get subsumed under the louder voices of the majority. The personal laws are based on customs and scriptures and UCC aims to replace the same with civil laws governing every citizen. The minority religious groups are opposing the UCC on the grounds that violates Article 25 of the constitution or that it is foisting rules which might not overlap with their pre-existing religious beliefs or scriptures. However, the UCC aims to bring all Indian citizens to the same level and fully be a country which gives out the message of “Uniformity in diversity”.

Goa has a UCC from a long time. It will bring India to a level where every religion is heard and the actions of every community is accounted for. No injustice on the basis of difference would be made. Because difference does not always imply discrimination in a robust democracy. What is more important? Religious harmony or UCC.

The aim of promoting integrity of the nation can be achieved by disqualifying controversies based on religious ideologies. There is a need for gender neutrality and equal status to citizens. The UCC can help women as India is presided by a patriarchal society and the personal laws in all religions reflect inequalities between women and men in terms of the preferential treatment to men. In terms of matters which involve the personal laws, like inheritance, succession, marriage, divorce, polygamy, desertation, triple talaq etc., men get preferential rights over women. In the amendment to the Hindu Succession Act 2005, the Hindu daughter was finally allowed equal share in inheritance. The demand for a uniform civil code in India was first put forward by women activists in the beginning of the twentieth century to safeguard women's rights, equality and secularism.

This demand was supported by Jawaharlal Nehru in 1930 but he had to face opposition by senior Congress leaders like Vallabhbhai Patel and Rajendra Prasad. He saw it as the first step in securing a full national identity for the citizen. It was rejected with the view that the society was not ready to adopt it. He commented that, India has to prepare the ground for it and that India is not ‘ripe’. When it comes to the debate of a UCC implementation, the society can often be found to be rigid and close minded in their approach. This “doing what’s good for me” attitude brings bitterness to the idea of reform which could benefit the society.

The Supreme court in the Shah Bano case held the need for common civil law which will lead to the integrity of the nation and that ‘a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.’

How can the Supreme Court declare one practice as unconstitutional and violative of human dignity for one section of women but let it remain constitutional for another section of women since their personal laws allow it to be so? In the case of State of Bombay v. Narasu Appa Mali , the Supreme Court was to face with such a situation. It was established in Sarla Mudgal v. UOI, where the case was related to the offence of Bigamy, the court expressed a conflict between the personal laws and a strong need for the uniform civil code in the country. In that case, the court held that, the second marriage of Hindu man after being converted to Islam, will be invalid if the first marriage has not been dissolved. Regarding this case, The SC has directed the Prime Minister to take a fresh look at Art. 44 of the Constitution which enjoins the State to secure a UCC which accordingly to the Court is imperative for both the oppressed and promotion of national unity and integrity.

But in Lily Thomas v. UOI, SC clarified the remarks made by it in earlier Sarla Mudgal case and asserted that it has not issued any direction in that case for the enactment of UCC. In Ms. Jorden Deingdeh v. S.S. Chopra, the Court said that the time has now come for a complete reform of the law of marriage and make a UCC for the country When it comes to reform into modernization and making a country which can walk shoulder to shoulder to other countries, India can do it with UCC.

Virtually most countries have uniform civil code. The European nations and US have a secular law that applies equally and uniformly to all citizens irrespective of their religion. The Islamic countries have a uniform law based on Shariah which applies to all individuals irrespective of their religion. A Uniform Civil Code is the sign of modern progressive nation.

The judiciary as it stands right now is burdened by the different personal laws for different communities.

1. Hindu Personal Laws include The Hindu Marriage Act (1955), The Hindu Succession Act, (1956) The Hindu Minority and Guardianship Act, (1956); The Hindu Adoption and Maintenance Act, (1956). These laws govern not only Hindus, but Sikhs, Jains, Buddhists as well.

2. Indian Muslims are governed by the Muslim Personal Law (Shariat) Application Act, 1937. Muslim laws are not codified and unlike Hindu personal laws, Muslim laws still adhere to religious beliefs and sentiments even though the provisions are clearly discriminating in nature.

3. Christians are governed under Christian Marriage Act, 1872 and Parsis are governed under the Parsee Marriage and Divorce Act, 1937.
   

In John Vallamatton v. UOI, a three judge bench of the SC has once again expressed its regret for non- enactment of Common Civil Code. It was said that Article 44 is based on the premise that there is no necessary connection between religion and personal law in a civilized society. In the Shah Bano case, it was advised to make codified changes to Muslim Personal Law just like it was done in the Hindu Personal Law in 1956. They sought to expect that Reform would be done internally from the community. In Seema v. Ashwani Kumar, the SC has held that all marriages, irrespective of their religion, be compulsorily registered. This can be considered the first step towards UCC. This will help in eliminating the complexities in adjudicating personal matters, overlapping of laws and inconsistences which may sometimes lead to delay in the delivery of justice.

Justice V. R, Krishna Iyer J. who is known to have given a judgment in Bai Tahira v. Ali Hussain Fissalli Chowthia also has an Ambedkarian view point on common civil code. Instead of being a majoritarian undertaking, the common code is supposed to be a collection of the best from every system of personal laws. It will streamline the legal system and remove the unnecessary burden of maintaining various religious legal systems. It will be a challenge and practically tough to analyse every section of the society to come to the best set of common rules. The minorities might feel that it will harm their religion or neglect their traditions and culture, or it might lead to divine displeasure. However, it is what will make a huge difference in the working of the nation and its judiciary.

The UCC will be helpful to all religions as it will count the needs of every religion, recognizing and acknowledging their differences and not favouring one over the other. It believes that there should be no relation between religion and law. Since criminal law is the same for everyone. In 2003, an apex court bench led by the then CJI V N Khare had said that Article 44 was based on the premise that there was no necessary connection between religious and personal law in a civilised society.

Baba Ambedkar’s say on UCC ‘I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field.’ As a disadvantage, It can blend different people of the society. As Justice BS Chauhan commented in 2016 on keeping uniformity in Personal laws, he commented that “Difference doesn’t always imply discrimination in a robust democracy” and that “A uniform nation doesn’t necessarily need to have uniformity”. He also expressed that, “Cultural diversity cannot be compromised to the extent of preserving uniformity as uniformity itself cannot become a threat to the territorial integrity of a nation”

However, discriminatory practices within a religion should not hide behind that faith to gain legitimacy. UCC will help in eradicating orthodox values and systems. It can be safely concluded that the UCC is not in the interest of the majority or against the minorities, it is in the interest of the common Indian citizen. The constitution respects every religion and has provision and protection for each one of them. Just as it includes the Freedom of practice of religion, the constitution also includes Article 44.