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GS Mains Test Series 2018
GS Mains Test Series 2018

Shah Bano Judgment and Uniform Civil Code in India

 India is a religiously diverse country with all the major religions of the world finding place in this land. At the same time it has also faced the scar of partition which many believe was because of anxieties and apprehensions of a particular religious community. Keeping these issues in mind the framers of Indian Constitution provided right to equality, freedom of religion and later in 1976 through 42nd Amendment Act India was declared a secular, democratic, republic.

Our constitutional forefathers were also aware of the fact in spite of so much diversity in the country there is a need to build social cohesion in the Indian society, need to ensure that progressive ideas are not thwarted on the altar of freedom of religion.

Therefore right to equality, freedom of religion and the reasonable restriction, secularism and Uniform Civil Code concepts were provided for progressive, egalitarian and equal society where state would be empowered to determine the relationship between human beings and the relationship of human with God is left on the discretion of the individual.

The issue of Uniform Civil Code came up in Shah Bano case.

About the Shah Bano case

The Shah Bano case of 1985 was a test case of all the above principles. In this case Shah Bano, a Muslim women and wife of Mohammad Ahmad Khan filed a petition at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount for herself and her children.

Husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defence that since Shah Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total Rs. 5400. The issue was finally taken up by Supreme Court and it decided it in favour of Shah Bano using secular Criminal Procedure Code regardless of religion.

Shah Bano case was landmark case for many reasons:

•      It showed the aspirational and progressive character of Muslim women and other sections of Muslim society, who were ready to challenge the religious orthodoxy.

•      It brought into focus the plight of the Muslim women, the discrimination they has to face in matters related to marriage.

•      It showed that the laws of the land which are secular in character will take precedence over the religiously ordained customs and personal laws.

•      It was triumph of the principle of social justice.

•      It was a step in the direction of implementation of UCC and

•      Most important of all it raised a debate about the rights of women, application of principle of equality. The debate engulfed civil society, religious groups, legislature and common man and nothing can be more fruitful in a democracy than a debate.

In 1986, the Parliament of India passed an act titled The Muslim Women (Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court's judgment in the Shah Bano judgment. Diluting the Supreme Court judgment, the act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce, according to the provisions of Islamic law. When the judgment was overturned by Parliament it showed:

•      That political populism still dominates over rational principles based on equality, human rights and social justice. It showed that it was not only the sentiments of religious minorities but the absence of political will also that prevents the implementation of UCC.

•      The judgment has left a bitter legacy, which prevents further reforms on UCC because of fear of political backlash.

Conflict between secularism, UCC and freedom of religion

The case brought into focus issue of conflict between secularism, UCC and freedom of religion. During the proceedings of case the Islamic groups sighted the judgment as an instance of attack on their religious freedom and their right to their own personal religious laws. Secularism as a principle with western interpretation -'non-interference by the state in religious matters' - was used to mobilize support against the judgment.

It raised the question whether secularism, freedom of religion are in conflict with UCC?

When the Preamble of Indian Constitution declares India a 'secular' state it means that state is only concerned with the relation of man with fellow man, man with state and not of man with God. He is free to choose his own God, practice the principles of the religion. The Indian doctrine of secularism does not mean absolute non-interference but principled distance from the religion. Thus implementation of Article 44 is under the provision of secularism.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them.

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."

Importance of Uniform civil Code

·         Uniform Civil Code will in the long run ensure Equality. Also, UCC will help to promote Gender equality.

·         It will lead to national integration and draw minorities into the mainstream.

·         It will encourage communal harmony.

Conclusion

In order to promote the spirit of uniformity of laws and accomplish the objectives enshrined in Art.44 of the Constitution, the following suggestions need immediate consideration:

·         A progressive and broadminded outlook is needed among the people to understand the spirit of such code. For this, education, awareness and sensitization programmes must be taken up.

·         The Uniform Civil Code should act in the best interest of all the religions.

·         A committee of eminent jurists should be considered to maintain uniformity and care must be taken not to hurt the sentiments of any particular community.