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In-depth analysis
The issue of Uniform Civil Code in
India
July 2, 2016
This article is related to:
GS Paper II: Indian Constitution
Reference News
The Union Law Ministry has asked the Law Commission to examine in detail all issues pertaining to the
Uniform Civil Code and submit a report to the Government.
The issue has been discussed in and outside Parliament. It may be recalled that underlining “total confusion”
owing to personal laws governing religious practices, the Supreme Court on October 12, 2015, sought to
know from the Government whether it is willing to bring the Uniform Civil Code in the country. It asked
the Solicitor General to seek the Government’s view and posted the matter for further hearing after three weeks.
Notably, implementing the Uniform Civil Code has also been on the ruling party’s agenda. Therefore, the
Law Commission has been asked to conduct a detailed study and file a report. It may take six months to a
year.
The Ministry has said that a decision on the future course of action would be taken on the basis of the Law
Commission report. If it is required in the larger interest of the country, the Government has said that will hold
consultations with stakeholders.
Introduction to Uniform Civil Code and its Constitutional position
The term Uniform Civil Code implies the same set of
secular civil laws to govern all peoples irrespective of
their Religion, Caste and tribe. The areas covered under it
are the Laws related to Marriage, Divorce, Adoption, and
Inheritance and acquisition and Administration of property.
Uniform Civil Code is a mandate upon the state under
article 44 of the Constitution as Directive Principle of
State Policy. As it is provided under Article 37 of the
Constitution, the Directive Principles of State Policy are not enforceable by the Court of Law. But this fact does
not undermine the importance of the directive principles.
Just after Independence the Circumstances were such that it was not feasible to impose a Uniform Civil Code on
the citizens. That is why it has been covered under the directive principle of state policy.
The framers of Indian Constitution were convinced that certain amount of modernization is required before
uniform civil code is imposed upon the citizens. Time and again, the Supreme Court has emphasized upon the
need of Uniform Civil Code to settle the ambiguity which has arisen due to the different interpretations of
various personal laws.
Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own
educational institutions. It was understood that minorities could practise their religion and follow their customs
and traditions.
By the 42nd Amendment of 1976, India was declared a secular nation. As a result of this, and the understanding
of Article 25, the State and its institutions have not interfered with religious practices, including in relation to
various personal laws. There is a view that this principle runs contradictory to the idea of secularism which
requires the State to be inert to religious considerations — and not tacitly support them by following a practice
of non-interference, no matter what. Clause (2) of Article 25 empowers the State to frame any law to regulate or
restrict “secular activity which may be associated with religious practice” — therefore, it is argued, Article 25 is
no bar to having a Uniform Civil Code.
History of Uniform Civil Code in India
Warren Hastings had decreed in 1772 that in matters of inheritance, marriage and other such religious affairs
“the laws of the Koran with respect to the Mahomedans and those of the Shastra with respect to the Hindus shall
be invariably adhered to.
In 1790, when Governor-General Cornwallis introduced a three-tier court system in Bengal (which was
subsequently extended to other parts of India) he included qazis and muftis as “law officers” to assist British
judges. The highest criminal court of this system, Sadr Nizamat Adalat, was assisted by the chief qazi of the
district and two muftis. In cases pertaining to Muslims it had to apply Islamic law as per the fatwas of these law
officers, which were binding on the court.
The British judges in 1817 overruled the fatwas when a resolution was introduced to repeal their binding
character.
The Shariat Act of 1937 established a set of personal laws where the parties were Muslims. But the British did
not impose this Act on all Muslims. It was made applicable (per Section 3) only to those Muslims who declared
in writing their intent to come under it.
When India’s first PM Jawaharlal Nehru and first law minister B R Ambedkar tried to bring a uniform civil
code, the effort met with considerable resistance in the Constituent Assembly. Nehru was forced to restrict
himself to a Hindu Code Bill – applicable to Hindus, Sikhs, Jains and Buddhists – abolishing bigamy and
polygamy, allowing right to divorce and inheritance to women and making caste irrelevant to marriage.
At present, laws relating to marriage and/or divorce have been codified in different enactments applicable to
people of different religions. These are:
The Converts’ Marriage Dissolution Act, 1866
The Indian Divorce Act, 1869
The Indian Christian Marriage Act, 1872
The Kazis Act, 1880
The Anand Marriage Act, 1909
The Indian Succession Act, 1925
The Child Marriage Restraint Act, 1929
The Parsi Marriage and Divorce Act, 1936
The Dissolution of Muslim Marriage Act, 1939
The Special Marriage Act, 1954
The Hindu Marriage Act, 1955
The Foreign Marriage Act, 1969 and
The Muslim Women (Protection of Rights on Divorce) Act, 1986.
The Special Marriage Act, 1954 extends to the whole of India except the State of Jammu and Kashmir, but also
applies to the citizens of India domiciled in Jammu and Kashmir. Persons governed by this Act can specifically
register marriage under the said Act even though they are of different religious faiths. The Act also provides that
the marriage celebrated under any other form can also be registered under the Special Marriage Act, if it
satisfies the requirements of the Act.
The Shah Bano case
The controversial Shah Bano case stirred a huge political debate over Muslim women’s rights in India that
continues even today. A 62-year-old woman went to court seeking maintenance from her divorced husband and
got it. The court granted her maintenance under Section 125 of Criminal Procedure Code (with an upper limit of
Rs 500 a month) like any other Indian woman. But an orthodox clergy saw it as an infringement on the tenets of
Islam. In response, the Central Government enacted the Muslim Women (Protection of Rights on Divorce) Act,
1986.
The most controversial provision of the Act was that it gave a Muslim woman the right to maintenance for the
period of iddat (about three months) after the divorce, and shifted the onus of maintaining her to her relatives or
the Wakf Board. The Act was seen as discriminatory as it denied divorced Muslim women the right to basic
maintenance which women of other faiths had recourse to under secular law. Despite subsequent SC judgments
upholding the Shah Bano verdict, Muslim women continue to fight for maintenance and against triple talaq and
polygamy.
Support for the uniform code
In the last few years many liberal intellectuals – Ramachandra Guha, Patrick French, and others – have
supported UCC. According to them we should have a common law to regulate the social practices of marriage,
divorce, succession, inheritance, and adoption, this based on the best practices of all laws anywhere in the
world, the judgment and selection done from the point of view of gender equality.
The main arguments in favour of UCC are as follows.
1. Personal laws and status of women
The most significant manner in which personal laws in civil matters affect the rights discourse is by delineating
rights for women belonging to their respective religious communities. The ‘family’ remains one of the most
contested sites of women’s rights. One of biggest criticism working against personal laws is that these
antiquated provisions are discriminatory towards women and seek to undermine their position within the private
domain. Personal religious laws need to be tested for their conformity with principles of egalitarianism that are
the touchstones of our Constitution as well as international declarations/agreements to which India is a party.
1. India’s commitment to Human Rights: Constitutional guarantees and International human rights
covenants
There is a compelling need to study the personal religious laws from a human rights perspective. India has time
and again pledged its commitment to upholding the normative regime of human rights, be it in the provisions of
the Constitution or the terms of the various international covenants and treaties.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is a unique
international convention in that it was based on the need for special formulation that would assert, protect and
promote women’s human rights. India too has ratified CEDAW with a declaration to limit its obligations
relating to changing the discriminatory cultural practices within the community and the family.
III. The inconsistency with Article 14
The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right
to equality. Litigants have contended that their right to equality is endangered by personal laws that put them at
a disadvantage.
The first prominent case founded on Article 14 was Shah Bano (1985) in which the Supreme Court ruled that a
Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else.
Arguments against the uniform code
According to another school, legislative reforms in different religious and tribal groups have created a greater
degree of uniformity among different personal laws so much so that the UCC has become more or less
irrelevant. There is more debate and dissent within communities and a concerted attempt to reform family law
from within. They also point out that India already has optional civil code in the form of the Special Marriages
Act, 1954. This Act read with other similar Acts such as the Indian Succession Act, 1925 provides an excellent
legal framework for all matters of marriage, divorce, maintenance and succession for those who wish to avoid
religion-based laws.
Issues in implementing UCC
The talk of a uniform civil code, in the absence of uniformity in most of the other laws prevailing in the
country, is premature. Even the Criminal Procedure Code and the Civil Procedure Code are not uniform
throughout the country as they have been amended and modified by various State Governments.
A comparative study of the personal laws of the Hindus, Muslims and other minorities will reveal that the
sheer diversity of these laws, coupled with the dogmatic zeal with which they are adhered to, cannot permit
uniformity of any sort.
The heterogeneity of the Hindu law itself is such that even the possibility of a uniform Hindu code is ruled
out. Talking of marriage alone, under the Hindu Marriage Act, 1955, marriages may be solemnised in
accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu.
For instance, according to the saptapadi form of marriage, followed mostly in northern India, the marriage
is complete and binding when the bridegroom and the bride take seven steps in front of the sacred fire. On
the other hand in the south suyamariyathai and seerthiruththa forms of marriage are followed. Under these
forms a marriage is valid if the parties to the marriage declare in the presence of relatives that they are
marrying each other or if they garland each other or if they put a ring on each other’s finger or if the
bridegroom ties a thali around the neck of the bride.
How India compares with the rest of the world
There is considerable variation in personal laws across the world.
In countries with a significant Muslim population
Countries with a significant Muslim population are often governed by the Sharia law, in varying measures.
In some countries, Sharia applies to all walks of life: Pakistan, Afghanistan, Iran, Iraq, Saudi Arabia,
Yemen, etc.
In many others, like in India, Sharia applies only to personal laws: Egypt, Malaysia, Sri Lanka, Singapore
etc.
The application of Sharia varies even among the regions: Greece, Indonesia, UAE, Nigeria and Thailand.
In the last category of Muslim countries, Sharia is not a part of the legal system at all: Turkey, for example,
is a Muslim-majority country with a secular civil legislation since 1926.
Countries with different family laws
Israel is one of the few countries which have, like India, different family laws for the Jews, the majority,
called Halakha and the Muslims, who are, like in most countries, governed by Sharia.
Another example is Lebanon, the most religiously diverse country in the Middle East: Lebanon has more
than a dozen separate personal laws for different religions, but no civil laws covering issues such as divorce
and property rights. These laws are administered by autonomous religious courts with little or no
government oversight, and often issue rulings that violate women’s human rights.
In the Christian-majority countries
In the Christian-majority countries, there is a clear separation of church and state – but with varying
degrees.
Most western countries allow for absolute freedom of religion – worship, dress, and other religious
practices – but laws of marriage, divorce and inheritance are common for all citizens. (The only concession
they make is with the aboriginals, who – as in the United States – have autonomy in matters of marriage
and divorce.)
France is an extreme case: it has laïcité, what is often referred to as a militant version of secularism. The
separation of church and state in France is so complete that it makes life difficult for the minority Muslim
population who want to express their faith publicly.
|article 44 of the Constitution| |Uniform Civil Code|
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