CHAPTER-04

UNIFORM CIVIL CODE AND SECULARISM

Uniform Civil Code: An Unfulfilled Vision

Article 44 of the Indian Constitution requires the State to secure for its
citizens a Uniform Civil Code throughout the territory of India. The term
civil code is used to cover the entire body of laws governing rights
relating to property and personal matters such as marriage, divorce,
maintenance, adoption and inheritance. The object of this code is to
enhance national integration by eliminating contradictions based on
ideologies. It aims to bring all communities on a common platform on
matters which are currently governed by diverse personal laws.
However, even after 60 years of independence, our law makers are yet to
give effect to this provision. This article focuses on the status of the
implementation of a Uniform Civil Code and, the steps taken and
directed to be taken by the Legislature and Judiciary in this regard.
Need for a Uniform Civil Code:
Ours is a country with several different religions and belief systems. The
accepted principle of law is that personal belief systems and laws must
be in conformity with the Constitution and not the other way round.
Article 25 of the Constitution guarantees to every person the freedom of
conscience and the right to profess, practice and propagate religion.
Article 26 of the Constitution guarantees to every religious
denomination the right to manage its own affairs in the matters of
religion. No set of laws can violate these Articles, which essentially
protect the religious freedom of different person or communities. We are
thus presented with a situation that seems somewhat contradictory; how
can there be a uniform set of laws which protects religious freedom at
the same time? The implementation of a uniform set of laws calls for
discarding certain personal laws which go against society s general
outlook as a whole, and this may amount to violation of the above
mentioned Articles of the Constitution.
With multiple belief systems, come multiple ideological conflicts. To
live together in concurrence with such diversity, we need to have
uniformity at some level so as to avoid such conflicts. What we need is a
Uniform Civil Code in the form of a sophisticated, harmonized system
of legal regulation that maintains and skillfully uses the input of personal
laws and yet achieves a measure of legal uniformity. As long as the code
does not go against the essence i.e. the core or fundamental belief of any
particular religion, it will not go against the religious freedom
guaranteed by the Constitution.
Position of the Legislature:
The question of implementation of a common Civil Code has been
raised mainly with regard to matters where, the personal laws of a
religious community have been challenged in the court of law as being
violative of the Constitution or against general public interest.
Our law makers have generally shied away from legislating on such
points of personal law as are considered to be of controversial or
sensitive nature, for fear such legislation being labeled as an intrusion on
the above rights thereby resulting in strong backlash. This became
evident from the reaction to the judgment of the Supreme Court in the
Shah Bano case which gave a divorced Muslim woman the right to
claim maintenance even after the period of iddat. If the amount known
as meher, paid to her on divorce was not sufficient for her livelihood, she
could claim maintenance under S.125 of the Criminal Procedure Code
(Cr.P.C). There was great agitation against this decision, led by Mullas
and Maulvis and other fundamentalist sections, as being against the
tenets of Islam. Succumbing to the pressure of vote-bank politics and in
order to appease the Muslim fundamentalists, the Rajiv Gandhi
government enacted The Muslim Women (Protection of Rights in
Divorce) Act to undo this decision. This Act exempted Muslims from the
general law regulations of the Cr.P.C, including S.125. It tried to restrict
the divorced Muslim woman s right to maintenance up to the iddat
period only and provided that under section 3(1)(a) a divorced women is
entitled to reasonable and fair provision and maintenance within the
iddat period.
Similarly in case of the Adoption of Children Bill 1972, the Muslim
community opposed a uniform law regarding adoption applicable to all
communities since Islam does not recognize adoption. Due to this
opposition, the bill was subsequently dropped and reintroduced in 1980
with an express clause of non-applicability to Muslims. This was again
opposed, this time by the Bombay Zoroastrian Jashan Committee, which
formed a special committee to exempt Parsis from the bill. The Adoption
of Children Bill, 1995, was passed by both Houses of the Maharashtra
legislative assembly, but is still awaiting presidential assent.
What needs to be understood is that the religion of an individual or
denomination has nothing to do in the matter of socio-economic laws of
the State. The freedom of religion conferred by the Constitution is not
absolute and by no means does it allow religion to contravene the
secular rights of the citizens and the power of the State to regulate the
socio-economic relations. Basically, a Common Civil Code will override
only those personal laws which do not form the essence of any religion.
The key word here is essence. Personal laws which form the
fundamental basis or the core of any belief system are ideally, excluded
from the purview of the Common Civil Code.
Position of the Supreme Court:
The Supreme Court seems to have a divided opinion on the introduction
of a Uniform Civil Code. On one hand, it has rejected attempts to do so
through public interest litigation but on the other, it has recommended
early legislation for its implementation.
In Pannalal Bansilal v. State of Andhra Pradesh, it held that a uniform
law though highly desirable, the enactment thereof in one go may be
counter-productive to the unity and integrity of the nation. Gradual
progressive change should be brought about.
Similarly, in Maharishi Avadhesh v. Union of India, the Supreme Court
dismissed a writ petition to introduce a common Civil Code on the
ground that it was a matter for the legislature and in Ahmedabad Women
Action Group v. Union of India, the Supreme Court showed reluctance
to interfere in matters of personal law.
But in Sarla Mudgal v. Union of India, the Supreme Court directed the
then Prime Minister P.V. Narsimha Rao to take a fresh look at Article 44,
which the Court held to be imperative for both protection of the
oppressed and promotion of national integrity and unity. It instructed the
Union Government through the Secretary to Ministry of Law and Justice
to file an affidavit, enumerating the steps taken and efforts made by the
Government towards achieving a common civil code for the citizens of
India. The Division Bench of Kuldip Singh and R.M. Sahai said that
since 1950 a number of Governments have come and gone but have
failed to make any efforts towards implementing the constitutional
mandate under Article 44. It is based on the concept that there is no
necessary connection between religion and personal law in a civilized
society. No religion permits deliberate distortion. Marriage, succession
and the like are matters of a secular nature and therefore can be
regulated by law. Unfortunately, it was later clarified in an appeal that
the direction issued by the Court was only an obiter dicta and not legally
binding on the Government.
In John Vallamattom v. Union of India, it was held that Articles 25 and
26 of the Constitution protect only those rituals and ceremonies which
form an integral part of a religion, and that matters of a secular character
cannot be brought under the guarantee enshrined under them. The Chief
Justice of India firmly emphasized that enactment of Uniform Civil
Code would end all such problems arising out of ideological conflict.
In Danial Latifi v. Union of India, a very controversial question of
political significance (in the background of a secular constitution and the
concept of welfare state) was revisited i.e. whether or not a divorced
Muslim woman after divorce post iddat period is entitled to maintenance
by her husband. Here, the Supreme Court adopted a middle path and
held that reasonable and fair provisions include provision for the future
of the divorced wife (including maintenance) and it does not confine
itself to the iddat period only.
Implementation at State-Level:
Even though a nation-wide Civil Code is not yet in place, a positive step
in this direction has already been taken. The state of Goa has enacted a
set of Family Laws, which is applicable to all communities; Hindus,
Christians, Muslims and others. There is no discrimination on the basis
of religion, caste or gender. The Goa civil code is largely based on the
Portuguese civil code of 1867, with some modifications based on the
Portuguese Decrees on Marriage and Divorce of 1910, the Portuguese
Decrees on Canonical Marriages of 1946, and the Portuguese Gentle
Hindu Usages Decrees of 1880. It includes laws governing marriage and
divorce, succession, guardianship, property, domicile, possession, etc.
Muslim fundamentalists opposed its enactment in the early 1980s but
their attempts to introduce Sharia law in Goa were ultimately met with
defeat by liberal Muslims who insisted on the continuance of the unified
civil code. Former Chief Justice Y.V. Chandrachud expressed hope that
the Goan Civil Code would one day awaken the rest of bigoted India
and inspire it to emulate Goa.
There are two important aspects of this code which assume great
significance in the context of codification of Indian laws:
Civil registration of marriage is mandatory. Around 98 percent of Goan
marriages take place under Community Property law by virtue of which,
each spouse automatically acquires joint ownership of all assets already
in their possession as well as those due to them by inheritance. These
assets may not be disposed of or encumbered in any way by one spouse
without the express consent of the other.
The registration of births and deaths is also mandatory. The children of
deceased parents fall in the category of mandatory heirs. They cannot be
disinherited whether male or female, except under extraordinary
circumstances. If the deceased parent leaves no will, all mandatory heirs
are entitled to an equal share of the estate of the deceased. If the
deceased has made a will, he may only dispose of 50 percent of the
estate. This is called the quota disponivel. The remaining 50 percent
must be divided equally among all mandatory heirs. Such a provision
ensures the just distribution of assets among all children, whether male
or female.