UNIFORM CIVIL CODE : THE NEED OF JUDICIAL SYSTEM
Dr. B.R. Ambedkar, during the Constituent Assembly debate said: “In fact, bulk of these different items of civil laws have already been codified during the British Rule and the major items still remaining for a Uniform Civil Code are marriage, divorce, inheritance and succession”.
Article 44 directs the state to secure a uniform civil code for the citizens applicable throughout the territory of India . its particular goal is to achievement of gender justice . It does not seem that the state has made any effort to introduce a uniform civil code in India but the judiciary has recognized the necessity of uniformity in the application of civil laws ,realting to marriage, divorce ,maintenance, etc. this has become an essential part of justice delivery system.
Alladi Krishnaswami Iyer said: “A Common Civil Code ran into every department of civil relation to the law of succession, to the law of marriage and similar matters; there could no objection to the general statement that ‘State shall endeavour to secure a Uniform Civil Code”.
MEANING OF UNIFORM CIVIL CODE (UCC)
Uniform Civil Code is the most common point of debate within Indian mandate 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. In India the purpose of Uniform Civil code is to replace the personal laws based on the scriptures and customs of each major religious ,
A uniform civil code will mean a set of common personal laws for all citizens. Currently, for example, there are different personal laws for Hindus and Muslims. But there is need of uniformty among all . It is based on the premise that there is no connection between religion and law in modern civilization.
BEGINNING OF UNIFORM CIVIL CODE
Pre-Independence (colonial era)
The Lex Loci report of October 1840-it stressed the importance and necessity of uniformity in the codification of indian laws,relating to crimes,evidence and contract .but,it also recommended that personal laws of hindu and muslims should be kept outside such codification.
Post – colonial era (1947-1985)
During the Drafting of the constitution, prominent leaders like Jawaharlal Nehru and Dr. B.R. Ambedkar pushed for a uniform civil code.however, they included the UCC in the Directive principles of state policy, mainly due to opposition from religious fundamentalistic and a lack of awareness among the people.
Various act developed to set up uniformity:
- The Hindu Code bill
- Succession Act,1956
- The Hindu Marriage Act,1955
- The Minority and Guardianship Act
- Special Marriage Act
UNIFORM CIVIL CODE: INDIAN CONSTITUTION (CASE LAWS)
ARTICLE 44. UNIFORM CIVIL CODE FOR CITIZENS- The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
After initial hesitation, the Supreme Court voiced its concern,indicating the urgency to have uniformity in personal laws. Various cases are on this stage which really brought changes and uniformity.
Shah Bano case 1985-
A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law.
The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. Further, It recommended that a uniform civil code be set up.
Facts about the case:
Under Muslim personal law, maintenance was to be paid only till the period of iddat. (three lunar months-roughly 90 days ).
Section 125 of CrPC (criminal procedure code) that applied to all citizens, provided for maintenance of the wife.
Impact – After this historic decision, nationwide discussions, meetings and agitations were held. The then government under pressure passed The Muslim Women’s (Right to protection on divorce ) Act (MWA) in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.
This case led to a remarkable development in justice system.
Daniel Latifi Case:-
Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to equality under Articles 14& 15 as well as the right to life under Article 21. The Supreme Court while holding the law as constitutional, harmonised it with section 125 of CrPC and held that the amount received by a wife during iddat period should be large enough to maintain her during iddat as well as provide for her future. Thus under the law of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is remarried.
Sarla Mudgal v. Union of India– Uniform civil code under Article 44 enjoins State to protect unity and integrity of the country.
John Vallamattom case –Section 118,Succession Act,1925 ultravires as it is violative of Article 14.
Seema v. Ashwani Kumar – it gave states and union territories that did not enact the rule ,in accordance with its 2006 order a deadline of three months to frame rules to implement the compulsory registration .The Bench reiterated that marriages should be compulsorily registered “in respect of persons who are citizens of India , even if they belonged to various religions’’.
The court agreed with the national commission for women that compulsory registration of marriage would help tackle various womens right in fragment such as child marriage ,ensuring a minimum age in accordance with the law,marriage without the consent of voth parties ,bigamous unions,and a womens right to live in her marital home and receive maintenance.
- Prevent child marriage
- Check bigamy and polygamy
- Help women to exercise their rights under marriage –maintenance-custody of children
- Enable widows to claim inheritance
- Deter husbands from deserting their wives.
NEED FOR UNIFORMITY
It will integrate India
It will help in bringing every Indian ,despite his caste,religion or tribe, under one National civil code of conduct.
Help in reducing vote bank politics
A uniform civil code will also help in reducing vote bank politics that most political parties indulge in during every election.
Personal laws are a loop hole
By allowing personal law we have constituted an alternate judicial syaytem that still operates on thousands of years old values.A uniform civil code would change that.
Towards modern progressive nation
It will help the society and move forward and take media towards its goal of incoming a developed nation.
More rights of women
A uniform civil code will also help in improving the condition of women in India.
Many provisions of personnel laws violate human rights .Article 25 and 26 gurantee freedom of religion and UCC is not opposed to secularism.
Every Modern Nation has it
A uniform civil code is the sign of modern progressive nation. It is a sign that the nation has moved away from caste and religious politics.In fact it might be right to say that socially and culturally we have degraded to a point where we are neither modern nor traditional. A uniform civil code will help the society move forward and take India towards its goal of becoming a developed nation.
The idea and principle of having a uniform civil code, governing personal laws is to treat every person equally and also so that just, fair and predictable laws protect everyone. Moreover, a uniform civil code would put in place a set of laws that would govern personal matters of all citizens irrespective of religion, which is the cornerstone of secularism. It would enable to put an end to gender discrimination on religious grounds, strengthen the secular fabric and also promote unity.
India has set before itself the ideal of a secular society and in that context achievement of a uniform civil code becomes all the more desirable such a code will do away with diversity in matrimonial laws, simplify the Indian legal system and make Indian society more homogeneous. It will create a national identity and will help in containing fissiparous tendencies in the country .The uniform civil code will contain uniform provisions applicable to every one and based on social justice and gender equality in family matters.
MERITS AND DEMERITS
If a Common Civil Code is enacted and enforced: It means that the law must have value in eye of law must be persistent to legal policy having enforceability value.
It world help and accelerate national integration; national peace and harmony maintained by actual uniformity in the system .
Overlapping provisions of law could be avoided.
Litigation due to personal law world decrease.
Sense of oneness and the national spirit would be roused.
The country would emerge with new force and power to face any odds finally defeating the communal and the divisionist force.
1Who is the government to decide about my religion?
2 We are governed by the Constitution of India.
3 The Constitution has given me the independence to follow my religion.
1. Difficulties due to India’s diversity
The implementation of Uniform Civil Code is a cumbersome task due to wide diversity of our nation. Cultural differences from state to state and community to community is yet another hindrance for a unified personal law.
2. Interference of state in personal matters
The constitution provides for the right to freedom of religion of one’s choice. With codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.
3. The people from different communities are not willing to adopt the secular laws separated from personal laws. So, it is not fair to impose the traditions of one group upon other groups. The focus should be on other less contentious issues that the Indian society is facing.
4. As far as the protection of human rights or social obligations is concerned, the nation has laid bottom line policies through general laws. For instance, there is general law that prohibits child marriage and reigns over all personal laws.
5.Every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court”
Overall it is to be concluded that uniform civil code resonates with one country one ,to be applied to all religious communities.there will be none religious be dominating among others ,fecilation of rule of law principles .we are a sovereign, secular, republic or a loose confederation of federal state, where people live at the whims and fancies of mullahs, bishops and pandits.
I strongly support the crusade for the implementation of the UCC and homogenizing the personal laws. I support it, not because of any bias, but because it is a need of the hour. It is the high time that India must have a uniform law dealing with marriage, divorce, succession, inheritance, and maintenance .
It is the urgent need of judicial system for accountability ,transparency and independence of judiciary . the basis behind to apply legal rules while solving a case there must be uniformity ,as this is not only a myth but a persistent applicability of uniform civil code to supercede all personal laws .
‘’the UCC is a necessity and mandatorily required today.it cannot be made ‘purely voluntary’ as was observed by Dr. B R Ambedkar 75 years back , in view of the apprehension and fear expressed by the members of the minority community’’.
‘’Without a Uniform Civil Code, labelling India be Secular nation is just a illusion.
Uniform Civil Code is necessary for India so that same laws are valid for every citizen without taking religion into consideration.’’
Author: Kiran Mai,
INVERTIS UNIVERSITY/BALLB 3RD YEAR/LAW STUDENT