A STUDY ON THE UNIFORM CIVIL CODE AND A CRITICAL ANALYSIS OF HIJAB CONTROVERSY OF KARNATAKA
Tanya Sharma & Riddhi Sharma
Students of Chanderprabhu Jain College Of Higher Studies and school of law, GGSIPU
The present research paper aims at discussing and understanding the concept of Uniform Civil Code and why it is a topic of debate and discussion . Unifrom Civil Code is one law for one country but how will it effect India bieng a country with diverse cultures, traditions and religions . The paper aims at highlighting the importance , challenges and circumstances that affect the implementation of the uniform civil code . As India has been governing a lot of its spheres with personal laws of individuals only. And how can the India overcome with the challenges it may bring uniform civil code which is one of the Directive Principle of State Policy has not been implemented yet due to India’s vast cultural differences and if would have done back then might have caused some issues . But as the country is developing the need of Uniform Civil code is felt at various stages and this research paper aims at highlighting that only.
UNIFORM CIVIL CODE
Breakdown of the term Uniform Civil Code – Uniform civil code means uniform civil law for a nation, this is the simplest meaning of the word Uniform Civil Code. India is a country of diverse heritage, cultures and religions, follows various personal laws governing certain aspects of civil law such as marriage, adoption, maintenance, dissolution of marriage, etc.
Article 44 of the Indian Constitution:
Article 44 of the Indian Constitution stipulates that the goal of the State shall be to achieve a Uniform Civil Code for the citizens of India. At present, when Uniform. The Civil Code is not in vogue and hence, every citizen is dealt with in certain matters which are according to the religion followed by the citizen. Example: Hinduism has its own laws relating to marriage, adoption and maintenance and Muslims have their own. This practice is followed for an exceptionally long time as India is a secular country and it is the duty of the state to respect the secular state and treat all religions equally. But with the change in time and circumstances, there is a need for reforms and there is a need for Uniform Civil Code in the present scenario.
What will be the changes from the Uniform Civil Code:
The Uniform Civil Code would create a single code that would govern civil affairs which is currently regulated by personal laws, this would bring about a single law for all citizens, regardless of which religion they belong to. All laws will be the same and will give the same result for all unlike present scenario, for example: Bigamy is punishable under Hindu law but not punishable under Muslim law as they are governed by personal laws. But if a Uniform Civil Code comes into force, it can make it is a law for all citizens, irrespective of their religious beliefs. And in the illustration described herein, the Uniform Civil Code may make any person punishable for the offense of bigamy, whether Hindu, Muslim or of any other community.
In Seema vs Ashwini Kumar the Supreme Court has held that the first step towards a uniform civil code may be that all marriages are registered. The court also noted that registration of marriages would also benefit women as registration can prevent child marriage, bigamy, polygamy, prevent abandonment of wives, etc.
Can one-time implementation of Uniform Civil Code be successful?
In the case of Pannalal Bansilal Patel v State of Andhra Pradesh,it was held that there is a great need for a uniform law for the country, but if it is implemented in one go it will lead to more issues rather than solving them. could. India has its own need for a diverse heritage that can be dealt with only in fragments and with due consideration and not in a single way.
Uniform Civil Code: Justified or not?
Uniform Civil Code a Directive Principle of State Policy under Chapter IV of the Constitution of India is not justified and therefore, no petition can lead to the imposition of Uniform Civil Code, it is purely a matter to be handled by the Government. and there is no writ petition or any remedy. Can be used to implement it.
Hindu Code bill:
The bill was introduced with the aim of abolishing Hindu religious laws and encourages a common code the aim of the bill was to bring reforms in Hindu laws at that time. The bill got acceptance in 1956 and was known as ; Hindu Succession Act &; 1956 which provided reforms and made changes in succession of property of Hind religion. The bill was draft of Rau committee.
Advantages of Uniform Civil Code
There are several advantages of UCC, we will briefly discuss them all one by one.
Article 44 of the Indian Constitution defines UCC in a reference to a common set of laws and rules on all personal matters such as marriage, divorce, adoption, inheritance, and succession.
However, the significance of UCC is much a wider concept but our country India is yet to inaugurate it under its constitution. It has been a tool of development for all the developing nations.
- SINGLE ROOF OF LAW
The formation of UCC will boost up the nation ‘s integrity with targeted economic growth. But at the same time satisfaction of diverse needs in a country of vibrant and largest democracy of the World would ‘not be that easy. However positive effects can be emphasized to do regards for such diverse needs which is required to frame a single law that caters the mass needs.
- AN AID TO PROMINENT SECULARISM
We have a secular nation but that too is seen in fragments and with a huge list of unsettled debates and collision of religious affairs whenever they meet their paths on a deadly track. To avoid the situation of reaching a dead end it’s essential for the second most populous nation to safeguard this glory of vibrance and to retain it for centuries by bringing a UCC to finally bring a settled and unified system of law for all the concerned citizens of this great nation.
- EQUAL GENDER STANDARDS
To everyone’s divine knowledge, it has for long that women had long fought battles for similar rights and claims as men. Transforming laws and introducing UCC can bring an end to all those hassles which they have to undertake in future for new claims that may arise in their courses of interaction with new claims.
For example: According to various religions : matters like inheritance and marriages etc are male dominated even after seven decades of independence, women are battling for equality.
- SOCIAL REFORM
Many communities and socities of people from different religions do not enjoy the basic rights which comes effectively as from codified personal laws (such as muslim women), their laws are uncodified . After the inauguration of UCC there will be a uniform code for each of those related problems. Our society will undergo a massive societal reform.
Now, let us look at certain disadvantages of UCC
- BREAKAGE OF COMMUNAL HARMONY
Rough understanding of UCC can create a situation of fear and grief among religious minorities. It can be a probable reason to justify that UCC is aimed against their religion customs and values.
- GOVERNMENT’S ACTION ON PERSONAL FREEDOM
Most people in minorities regard it as a move of government to interfere with the personal freedom and choice of living.
- NOT THE CORRECT TIME FOR ITS IMPLEMENTATION
Muslim community is not yet ready even after seven decades of independence to undergo a massive change by implementing UCC. They need some more time for mental reframing of their minds. Because they are well equipped with matters of saffronization of schools, beef issues etc. They find these matters as a overruling of the majority over minorities. Currently UCC will add fuel in a burning fire.
- DIFFICULTIES DUE TO INDIA’S DIVERSITY
The implementation of UCC is a very tough task due to the wide diversity of our vibrant nation. Cultural differences from a few miles to another are the special and dynamic features of our Republic, it is another hindrance in bringing all the citizens under one umbrella.
PROBLEMS IN IMPLEMENTING UCC
Bringing UCC was the manifesto of BJP during 2019 Lok Sabha Elections that is why it catches serious eyeballs. The problem to implement UCC is possible publicizing of issues and matters over public debates and discussions which ruin its effect and impact in planning which leads to politics on such intricate and private affairs of a state. On the contrary such matters should be looked at and dealt with utmost care. Such sensitive issues should be kept far away from the agendas of politics. It happens that an issue which is not getting solved put it on politics, the seriousness of such matters does not survive after finding a place in politics platter. The issue has become more political than legal and invites controversies with no solution at the end. Meanwhile Goa is the only Indian state that has a UCC. Politics is the major hindrance on the idea of one Nation one Law.
The UCC is a secular concept and is above all privacy laws based on religion or caste. There should be a focus on political consensus for better results.
- ARTICLE 25 ALLOWS EVERYONE TO PROFESS, PROPAGATE AND PRACTICE THEIR RELIGION, SO UCC CAN BE HURDLED BY ART 25 & 14.
One such indisputable and universally accepted principle that one must give supreme importance to is one ‘s religion, tradition, culture, and customs. Art 25-28 of our constitution provides for the same.
This happens every time that Muslim women who have been affected by personal laws knock the door of Supreme Court for the protection of their fundamental equality and freedom, in accordance with constitutional provisions but each time their personal laws are retained on the grounds of Art 14 which is equality before law and equal protection of laws same as in the case of Art 25 which is a case sensitive issue in India when connected to one ‘s personal freedom to exercise methods &; processes for religious sanctity. And Art 44 is misconceived to take away the FR of any individual, but it will not take it away. The ban on Triple Talaq in India is the biggest example of Religious Tolerance in our country, Sec 125 crpc also takes a uniform stride. To sum up there is a real and practical need to refer to the constitution with an open approach more towards on dignity of the individual rather on to religious differences.
CASE STUDIES THAT HAVE A RELATION TO UCC
(i) “THE SHAH BANO CASE’’
IN MOHD AHMAD KHAN V/S SHAH BANO BEGUM, 1985
One of the most debatable and problematic legal contests in India that reached a milestone in the struggle for rights and freedom for Muslim women in the nation. This case is a combination of social evils which leaves innocents away from their valid claims.
Can Personal laws be made in application with such strictness that a potentful always abridges the rights of the weaker. However, this is something illogical and inhuman and no such personal law should aim to follow such blind faiths and even if it does us constitution is equally capable of striking down such useless and unworthy provisions in the name of religion which betrays and punishes somebody without any cause.
The key highlight of this case is related to maintenance under section 125 crpc, 1973 and of Triple Talaq which is irrevocable once pronounced.
However, the judgement took a new stance in implementing and strengthening the rights of Muslim women by enactment of a law by Parliament to safeguard the rights of divorced Muslim women (Muslim Women protection of Rights of Divorce) Act, 1986, this was the move of the then Rajiv Gandhi Congress government to invalidate the decision of the Supreme Court.
As a consequence, there was no solution for a ban on talaq -e- biddat (TRIPLE TALAQ) but this case made a way to bring a ban on triple talaq which we all have seen.
The Supreme Court specifically underlined that Triple Talaq cannot take away the Muslim woman ‘s right to seek divorce from her husband when she is not abler to maintain herself and it is applicable to every such woman who is being dealt with similar situation. The right to seek maintenance will be according to section 125 crpc , 1973 which applies uniformly among all sections of society regardless of religion, race, caste, creed and society as crpc is a criminal law it is not a civil law so it will have an uniform applicability and will apply to all the citizens of the country. This decision faced a lot of humiliations of Islamic scholars throughout the country. This case is the best example of Justice and Equality when overcomes Religion.
(ii) “THE TRIPLE TALAQ CASE’’
IN SHAYARA BANO V/S UNION OF INDIA, 2016
Constitution Bench declared that the practice of instantaneous Triple Talaq is unconstitutional by 3:2 majority on 22 nd August, 2017.
Key Issues: –
- Is the practice of Talaq -e -biddat (instantaneous Triple Talaq) an essential practice of Islam?
- Does the practice of Triple Talaq violate any FR?
Brief facts: –
Shayara Bano was married to a man named Rizwan Ahmad for 15 yrs. Later he divorced her through instantaneous Triple Talaq (Talaq -e – biddat) . She filed a writ petition in the Supreme Court to hold three practices talaq-e-biddat, polygamy, and nikah-halala unconstitutional as they violate Art 14, 15, 21,25 of the Indian Constitution.
Talaq- e- biddat is the practice in Islam as a right to husband to pronounce talaq in one sitting without the consent of the wife, nikah – halala is the practice in Islam of remarriage for a wife in order to get back to his former husband by remarrying the latter husband and when the latter one divorces her then only she could get back to his former husband. And Polygamy is the practice of keeping more than one wife.
Various Women Rights Bodies, & the All-India Muslim Personal Law Board (AIMPLB) to give their opinions on these 3 unconstitutional evils to which the reply was in Favour of Shayara Bano as the Union of India and the Women Rights Organization like the Bebak Collective and Bhartiya Muslim Mahila Andolan supported Shayara that these practices are unconstitutional.
However, the AIMPLB has argued that uncodified Muslim Personal Law is not subject to constitutional judicial review and that these are essential practices of Islamic religion and protected under Art 25 of the constitution.
BRIEF DISCUSSION ON UDUPI KARNATAKA HIJAB CONTROVERSY
It is a long debatable issue wherein everybody is presenting their diverse views and opinions. But should a school witness such religious differences, which is the fundamental aspect of a person ‘s life. Some Muslim women expresses it as a bane, some as a boon, some wants to retain, some do not want to. The Centre and opposition also have diverse opinions. It is all a struggle for UCC which we all will remember after having UCC.
The Udupi Karnataka Hijab controversy arises when some of the girls who were not wearing hijabs inside the classrooms started doing so as earlier they used to remove their hijabs before entering the classrooms, as for a short review they carry their hijabs inside the school premises but not inside the classrooms. Later, a group of people pelted stones at a restaurant at Malpe in Udupi district, which is owned by the father of one of the six girls from Udupi who have approached the High Court of Karnataka seeking permission to wear hijab in classrooms. The girl claims that her brother was assaulted during the alleged accident.
Some Progressive Islamic Scholars claim that wearing hijabs is not an essential practice in Islam and women are obliged to cover their genitals or breasts with a sheet, there is no such Instruction of hijab or no use of the word hijab is used to cover the hair or face in the holy Quran. But the hijab word if used or if someone believes then he/she took wrong reference to it as it just meant a veil of righteousness and fairness between parties when interacted to each other. Shamsuddin Tamboli President of MSM (Muslim Satyashodhak Mandal) regards that it is the aim of the Muslim organizations to present a system of male patriarchy by suppressing the females by such tactics and wearing hijab is not an essential practice in Islam.
He also quoted examples of countries such as Egypt, Syria, Tajikistan, Morocco, and several others which have regulations with respect to hijabs and face veils as a threat to security issues.
Further, in exercise of the powers conferred under section 133 (2) of the Karnataka Education Act, 1983, there is a direction that students at all government schools to wear the uniform fixed by the state. Students at private schools may wear uniforms prescribed by the management committees of the school.So in both circumstances it is the dress code which must be followed if is allowed then a person should go for it otherwise there is no need to destroy the uniformity of educational institutions which is their sole motive to lessen the gap between rich and poor, lower class and upper class, from one religion to another.
- JN PANDEY : CONSTITUTIONAL LAW
Author: Tanya Sharma & Riddhi Sharma,
CHANDERPRABHU JAIN COLLEGE OF HIGHER STUDIES AND SCHOOL OF LAW, AFFILIATED TO GGSIPU, NEW DELHI , 5TH YEAR OF B.B.A.LLB (STUDENT) MY NAME IS RIDDHI SHARMA AND THIS ARTICLE IS A CO- AUTHORED PIECE OF TWO PEOPLE , OTHER STUDENT'S NAME IS TANYA SHARMA