Uniform Civil Code in India
Polity & Governance
22nd Jul, 2019
The issue of framing a Uniform Civil Code is about to be placed for consideration before the 22nd Law Commission. The issue was considered by the 21st Law Commission, which sought the views of various stakeholders and met several religious groups.
The term Civil Code means to cover the entire body of laws governing rights relating to property and other personal matters like marriage, divorce, maintenance, adoption and inheritance. Uniform civil code essentially means unifying all these “personal laws” to have one set of secular laws dealing with these aspects that will apply to all the citizens of India irrespective of the community to which they belong.
During the debates in the Constituent Assembly, B.R.Ambedkar had demonstrated his will to reform Indian society by recommending the adoption of a Civil Code of western inspiration. But he had to face extensive criticism from both Muslim and Hindu Representatives for making an attempt to reform the traditional religious laws. As a result, Ambedkar’s efforts merely found a place in the Directive Principles of the State Policy of the Constitution.
Article 44 of the Indian Constitutions says that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. While more than seven decades have passed since the enactment of the Constitution, this particular provision has remained a dead letter.
Personal Laws Framework in India
Currently, the citizens of India are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession, etc.
- Marriage & Divorce
- The Hindu Marriage Act, 1955
- The Muslim Women (Protection of Rights on Divorce) Act, 1986.
- The Parsi Marriage and Divorce Act, 1936
- In Muslims, marriages are governed by the Mohammedan Law prevalent in the country
- In case of Jews, there is no codified law in India. Even today, they are governed by their religious laws
- Although there is no general law of adoption, it is permitted by the Hindu Adoption and Maintenance Act, 1956 amongst Hindus
- Muslims, Christians and Parsis have no adoption laws and have to approach the court under the Guardians and Wards Act, 1890
- Maintenance - Obligation of a husband to maintain his wife arises out of the status of the marriage. Right to maintenance forms a part of the personal law.
- Under Hindu Law, the wife has an absolute right to claim maintenance from her husband. But she loses her right if she deviates from the path of chastity.
- Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands
- A vast majority of Muslims in India follow Hanafi doctrines of Sunni law.
- The law relating to intestate succession among Hindus is codified in the Hindu Succession Act, 1956
Present Secular Laws in India
- CrPC: In India, we have a criminal code that is equally applicable to all, irrespective of religion, caste, gender and domicile.
- Special Marriage Act, 1954: Its objective is to provide a secular legislation under which individuals from two separate communities can solemnize their marriage, thus liberating people from the traditional coercive requirements of marriage under separate personal laws.
- Uniform Civil Law in Goa: Goa is the only state in India that has uniform civil code regardless of religion, gender, caste. Goa has a common family law. In Goa Hindu, Muslim, Christians all are bound with the same law related to marriage, divorce, succession.
NEED FOR UCC in INDIA
- Gender Inequality:
- In Marriage: Various aspects of prevailing marriage personal laws discriminates against women, like Sharia law allows a Muslim male to solemnize up to four marriages without taking consent of his existing wives. This blanket immunity enables husbands from other communities to desert their wives by converting to Islam and escape from the legal proceedings.
- In Divorce: Until the recent judgment by the Supreme Court on Triple Talaq, a Muslim man could divorce his wife by simply stating the word ‘talaq’ thrice. Unfortunately, the practice of Nikal Halala, under which one cannot remarry his divorced spouse until and unless she has married and divorced another man, still continues to put worst form of trauma and indignation for a woman.
- In Maintenance: In the famous Shah Bano Case, after 14 years of married life, when the husband brought his second wife, he refused to maintain Shah Bano, who was 62 years old.
- Inequity among different Religions: Till recently, a Jew, Muslim or Christian in India did not have the right to adopt, owing to the restrictions imposed by their personal laws. They only had the power of guardianship in which one possesses only a legal right over the child until he or she becomes an adult. Moreover, Muslims in India have vehemently opposed the application of law of adoption.
- Aspirations of the young population: A contemporary India is a totally new society with 55% of its population is below 25 years of age. Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity. Their view of shedding identity on the basis of any religion has to be given a serious consideration so as to utilize their full potential towards nation building.
- National Integration: The Supreme Court of India has opined that UCC can serve as an instrument for national integration by removing disparate loyalties to law which have conflicting ideologies.
Secularism Vs UCC
Preamble of the Constitution states that India is a Secular democratic Republic. The word Secular was inserted by the 42nd Constitutional Amendment, 1976. This mean there is no state religion. The process of secularization is intimately connected with the goal of Uniform Civil Code like a cause and effect.
Arguments against UCC
- Virtue of being DPSP: Article 44 is just one of the several other directive principles of state policy, so it carries only a persuasive force for the legislature. Moreover, Articles 25, 26 and 29 which deal with religious and cultural freedom are the fundamental rights and both conflict with each other. In such conflicting situation, fundamental rights are mandated to prevail constitutionality.
- Opposition from Muslim Community: The most radical stand against Article 44 is that it is opposed to the Shariat and it directly challenges Islam.
- Threat to Harmony: A common code anywhere can harm national integration, for true integration in a democracy stands for tolerance and coexistence of various communities Wrenching the laws and culture that are beloved to a community and deriving it to adopt alien laws can hardly create goodwill or harmony between communities.
- Ethno-Cultural Diversity of India: The diversities of family law of different communities, the tribal's own laws and customs, the belief of the people about the source of law and religion are intermixed and interwoven. This has prompted people to oppose the Uniform Civil Code from its very inception.
- Against Democracy: India is a secular state, but it is also a plural society with diversity of culture. Democracy gives full play to pluralism, in cultural matters which require a regime of legal pluralism.
- Marriage & Divorce: The Supreme Court in Sarla Mudgal v. Union Of India held that every citizen who changed his religion could not marry another woman unless he divorced his first wife because Marriage is a secular institution and the obligations attached to it should be one and the same in all religions. Moreover, Instant triple talaq was declared unconstitutional by the apex court in 2017.
- Adoption: The Supreme Court held that one could adopt under the Juvenile Justice (Care and Protection of Children) Act, 2000 irrespective of the restrictions imposed by one’s personal laws.
- Maintenance: The Delhi High Court has recently observed that the husband cannot avoid undertaking the responsibility of maintaining his children merely because his wife is earning.
By Law Commission
- The 21st Law Commission said that a uniform civil code “is neither necessary nor desirable at this stage” in the country because cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation. It also held that Secularism could not contradict the plurality prevalent in the country.
- Key Suggestions by 21st Law Commission:
- Codification - The commission has called for the codification of all personal laws. This would help in bringing to light the prejudices and stereotypes in all religion. They can eventually be tested on the anvil of fundamental rights of the Constitution.
- Universal principles - Codification of different personal laws could help arrive at certain universal principles. These may facilitate prioritising equity rather than imposition of a Uniform Code. A uniform code would only discourage many from using the law altogether.
- Amendments - The commission thus suggested certain measures in marriage and divorce. These should be uniformly accepted in the personal laws of all religions. These amendments in personal laws include
- Fixing the marriageable age for boys and girls at 18 years so that they marry as equals
- Making adultery a ground for divorce for men and women
- Simplifying divorce procedure
- Although the state is reluctant to impose Uniform Civil Code on diverse people, the minimum it should do to generate those conditions that will make a progressive and broad minded outlook of the people.
- Since the Muslims are the most backward among the minorities in India, the long term solution to the problem of reform in Muslim Personal Law lies in spreading education among Muslim masses
- To gauge the feelings of the community the government should hold the referendum in the minority communities in which all adult men and women can participate.
- An optional Uniform Civil Code could be enacted to coexist with the various religious personal laws.
- Before enacting a Uniform Civil Code throughout the territory of India the government must also keep in mind the religious freedom guaranteed under 'Article 25' and 'Article 26' of the Constitution.
About Law Commission
- India’s first Law Commission was established in 1834 via Charter Act of 1833 under the Chairmanship of Lord Macaulay.
- Law Commission of India is neither a constitutional body nor a statutory body.
- It is truly an ad hoc and advisory body whose work is to do research and make recommendations for law reforms such as amendments and updations of prevalent and inherited laws.
- None of the recommendations is binding upon the Government.
- Law Commission of is established by an order of central government.
- Who will head the law commission is completely at the discretion of the Government. However, it is a convention that a retired judge of Supreme Court heads India’s Law Commission.
- The Commission is headed by a full-time Chairperson. It membership primarily comprises legal experts, who are entrusted a mandate by the Government.