India is the largest democracy in the world with a mixture of several various cultures, spread across the Indian subcontinent. India is a secular state with the Constitution of India giving its people the freedom of right to religion under Article 25 and Article 26. But on the other hand, there is the controversy of implementing the Uniform Civil Code (UCC) under Article 44 of part IV (Directive principles of the state policy) under the Indian Constitution.
UCC is the most heated debatable current topic as it was mentioned in the BJP 2019 Lok Sabha election manifesto. Recently the Supreme Court of India while deriving its judgment legitimizes the Portuguese civil code of 1867, which describes Goa as a “shining example”. After that Delhi High Court has received petitions which sought to implement UCC across the country.
There is an ongoing debate that the personal laws of different religions based on scriptures and customs should be replaced with a single set of rules governing all citizens. As the right-wing political narrative is dominant in the country, the purpose of this is to give a comprehensive understanding of UCC, whether there is a need for countrywide UCC, by analyzing different personal laws in India.
ARTICLE 44 OF INDIAN CONSTITUTION: WHAT IS UCC?
Article 44 of the Indian Constitution deals with UCC. “It says that the State shall endeavour to secure for the citizens a UCC throughout the territory of India.” UCC refers to a single code/law for the citizens irrespective of their religion, caste, tribe, etc. The purpose of the UCC is to replace all personal laws in India. It comes under the Directive Principles of the state policy which means that neither they are fundamental rights nor it holds any Constitutional guarantee. It is merely a goal or guideline to which a nation should strive. The question is if it holds no Constitutional guarantee then why it has been seeking the attention of the legal as well as political Diaspora.
Before delving into the need for UCC one must take an overview of some personal laws in India. Personal laws are the laws that apply to a particular community based on religion, culture, tribe, etc. As we know India is the home to many religions and culture and every religion and culture has its own set of beliefs. Personal laws are generally made by keeping these beliefs in mind and the purpose of these laws is to protect the soul of the particular religion or culture. Most of the personal laws are inherited from religious texts.
“Personal laws generally focus on these areas-
- marriage and divorce
- custody and guardianship
- adoption and maintenance
- succession and inheritance”
Muslim personal laws are not codified per se; these are inherited from religious texts like Quran. Acts like the Shariat Application Act and Dissolution of Muslim Marriages Act are recognized in India. Christian marriages and divorce are governed by the Indian Christian Marriage Act and the Indian divorce act respectively. While the Hindu personal law (the term Hindu Includes Sikhs, Jains and Buddhist) is codified under four acts -Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. Goa is the only state with UCC, governed by The Portuguese Civil Code of 1867.
IS THERE A NEED TO IMPLEMENT A UNIFORM CIVIL CODE IN INDIA?
Critics argue that India is an amalgamation of different religion and culture, one civil code for the whole country is not a viable option to take. Several communities especially the minorities consider UCC as an encroachment on their right to freedom of religion. Also, the Constitution of India has guaranteed its citizen the right to freedom of religion under Article 25-26, but the unification of civil laws may reduce the scope of these fundamental rights as it will include the interference of the state. Also, India is a diverse country with home to almost all the religions of the world, it will be a demanding task to make a single set of uniform codes that can govern these diversities together. UCC is a sensitive and challenging task because most people don’t know the actual meaning of the UCC especially the backward classes and the minorities. And those who slightly have a hint about the UCC thinks that one set of rules will be imposed on them which will be influenced by majority religious communities.
The question if the implementation of UCC is such a sensitive topic then why the current government is yearning to implement it. The answer to this is that the impact of implementing UCC without proper planning and just for the sake of implementing a ‘one nation-one rule’ system can be devastating as it can create unbalance in society. The debate of UCC has now become more of a minority-majority issue. Besides the sensitive nature of this, the NDA government is looking forward to implementing it from day one, unlike its counterpart.
But the advantages of UCC cannot be disregarded from providing equal status to all its citizens irrespective of religion, caste, class etc, to decrease the burden of bureaucracy by bypassing the issue of reform of existing personal laws; both will come under the umbrella of its benefits.
ANALYSIS OF UCC
Issue of UCC came up with the case ‘Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SCR (3) 844’ which is popularly known as the ‘Triple Talaq’ case. In this case Shah Bano, Muslim women filed a petition against her husband Mohd. Ahmed Khan, a local court in Indore, under CrPC section 125, asking for maintenance for herself and her children. Her husband gave an unalterable talaq(divorce)under Islamic law and took up the defence that since she has ceased to be his wife, he had no legal obligation to give maintenance to her. He was only obliged to give the total sum of Rs. 5400 as prescribed under Islamic law. The issue was finally taken by the Supreme Court and decided in favour of Shah Bano begum using secular procedure code regardless of religion.
It raised several questions like whether freedom of religion is in conflict with UCC.
The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said,
“Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity.”
Another famous case was ‘Sarla Mudgal v Union of India, AIR 1995 SC 1531’. In this case, there were mainly two petitioners. First is Kalyani, an NGO which is headed by Sarla Mudgal and the second one is Meena Mathur who is married to Jitendra Mathur, in 1988. She complains that she circumvented the provisions of sec 494 IPC by converting to Islam only to solemnized another marriage with a woman named Sunita Narula also known as Fathima without revoking the first one.
There were two main points of discussions.
- Whether can a husband be charged under 494 of IPC?
- Whether a Hindu man married under Hindu law is allowed to convert to Islam to solemnize another marriage?
This case put the need for UCC in limelight. Though the judgment, in this case, hasn’t issued any direction to implement UCC, Justice Kuldeep Singh has requested the Government to take into consideration Article 44 of the Indian Constitution. One of the main problems with the implementation of UCC is gender discrimination. So before looking forward to its implementation the government should make reforms in the personal laws, which is impossible without the support of religious communities. It is to note that all communities derive their personal laws from beliefs and faiths, so tampering with their personal laws without their will can harm their religious sentiments.
It is right to conclude that though India needs UCC in a long term there is no urgent need to implement it. As India is a diverse country, many people don’t want any interference with their personal laws as they are inhabited by their religious customs. Before introducing UCC, our nation must have improved levels of social and political awareness as most of the people doesn’t know the actual meaning of the ‘one nation – one rule’ system.
It is paramount to ponder the difficulties and issues of social and political backward classes. As this civil code is going to affect India, so it shouldn’t be implemented without the support of all the communities. The government should take a gradual approach to implement UCC. The government should start with making reforms in the personal laws according to modern times in such a way that it removes the disparity among the religious groups. With all this, it should be of the utmost importance that the ultimate aim of the UCC is to ensure equality, unity and integrity of the nation, should not be set aside.