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Subject: Essay

Topic: Necessity of Uniform Civil Code

The Constitution of India has included the setting up of a Uniform Civil Code in the Directive Principles a/State Policy under Article 44. However, this is a non-enforceable right. The absence of a Uniform Civil Code is against the spirit of secularism and equality and leads to an involvement of religion ill politics. Still, India has not reached a level of a secular democracy where a uniform code can be implemented.

The society is still polarized. Minorities fear that the uniform code will be a violation of their rights. Therefore the code should be implemented when the demand comes from the minorities themselves. II should be a result of consensus and accommodation, not a unilateral imposition. The need for a Uniform Civil code in India has been discussed and debated several times and it still remains one of the most controversial issues mentioned in our Constitution.

The Indian Constitution includes the setting up of a Uniform Civil Code for its citizens in Part IV – The Directive Principles of State Policy. The legal nature of the Directive Principles is such that it cannot be enforced by any court and therefore these .are non- justifiable rights. The Constitution further calls upon the State to apply these principles in making laws as these principles are fundamental in the governance of the country.

The Uniform Civil Code states

Article 44, which deals with the Uniform Civil Code states: “The State shall endeavor to secure for the citizens, a Uniform Civil Code throughout the territory of India”. The Uniform Civil Code is meant to constitute a legal framework of. Secular laws which shall govern activities like marriage, inheritance and divorce which are presently controlled by personal laws of various religions.

One of the fundamental problems with the absence of a Uniform Civil Code applicable throughout India is that it goes against the concept of equality which is one of the basic tenets’ of our Constitution. The people of India are of different religions and faiths. They are governed by different sets of personal laws in respect of matters relating to family affairs. i.e. marriage, divorce, succession etc.

Law relating to marriage and /or divorce has been codified in different enactments applicable to people of different religions. These are: The Indian Christian Marriage Act: 1872, The Indian Succession Act, 1925, The Parsi Marriage and Divorce Act, 1936, The Hindu Marriage Act, 1955, The Muslim Women (Protection of Rights on Divorce) Act, 1986 etc.

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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 may be of different religious faiths. By having different personal laws for different religions we are, in a sense undermining the credibility of the secular ethos of India. There should be an element of uniformity governing such activities and ideally this should be administered by the State. In fact we find that no serious efforts have been made by government to formulate a Uniform Civil Code for all the citizens of India. Muslims have their own personal law for marriage and divorce. The problem with the personal laws is that in most cases, women are at the receiving end because of the biased nature of these laws. This became a matter of debate especially after the Supreme COUl12 S verdict in the Shah Bano case.

The case was about the right to maintenance after divorce, filed by a Muslim woman. According to the Muslim Personal Law, the husband was not obliged to pay the maintenance after the divorce. This was challenged in the Court and the Court ordered that a husband has to provide maintenance for a divorced wife with no means of income according to Section 125 of the Criminal Procedure Code.

In this case the Court observed that a Uniform Civil Code would remove disparate loyalties to laws which have conflicting ideologies. The judgment created uproar among the conservative sections of the Muslim community. However, the issue pitch forked’ the Uniform Civil Code issue into prominence. Discrimination against women is found not only in Muslim Personal Law. Divorce in Christianity, governed by the Indian Christian Marriage Act of 1872, blatantly discriminates against women. For a Christian woman to get divorce, she will have to prove charges against her husband on adultery along with bigamy’, incest cruelty change of religion, etc.

However, a husband is required to prove charges of adultery alone. Muslim men also have the right of triple talaq (divorce) under their personal law. These discriminatory practices further augment’ the position in favor of introducing a Uniform Civil Code. The Uniform Civil Code was made a non-justifiable right under the Directive Principles of State Policy by our founding fathers keeping in mind certain crucial factors. India’s independence in 1947 was followed by large-scale religious riots which was the result of the Partition.

As a result the environment that prevailed in the country when the Constitution was framed was not conducive enough for the State to take over the personal laws of various religions. Therefore the issue of the civil code was included in the Directive Principles leaving the task to the future generations, when the situation will stabilize. Still, time is not ripe for the implementation of the Uniform Civil Code.

Polarization in the society along religious lines is still very much alive in our country. The destruction of Babri Masjid in Ayodhya, a number of communal riots like the Mumbai riots and the Gujarat riots are clear pointers towards the fact that India is yet to achieve the level of a stable and mature secular democracy. If the Uniform Civil Code is introduced in such a society, it may lead to further complications.

After the Supreme Court’s reiteration of the importance of the Uniform Civil Code, Syed Shahabuddin, President of the All India Muslim Majlis-e-Mushawarat (AIMMM) argued that since the Constitution puts together the freedom of conscience and freedom of religion, it is impossible to ignore religious faiths based on scriptures. Moreover, for Indians, religion is not just a casual part of their personal life.

Here religion plays a primary role in the lives of most of the people. Therefore the introduction of the civil code should be a well-thought out and careful process. Another argument against the Uniform Civil Code is that its imposition will be a violation of Fundamental Rights envisaged by the Constitution. Fundamental Rights are justifiable rights and are regarded as the most important rights guaranteed by the Constitution. Those people who argue against the Uniform Civil Code are of the opinion that for believers, matters like marriage, divorce and inheritance are religious affairs and the Constitution guarantees freedom of such activities and therefore the Uniform Civil Code will be a violation of that.

Religion is an extremely sensitive issue requiring the most delicate handling. Uniform Civil Code is a issue which requires extensive and exhaustive consultations between various religious groups, within the religions and between the State and the religious groups. The minorities should not feel that the regime is imposing the code on them. The Uniform Civil Code can be successfully introduced only after attaining improved levels of literacy, awareness on various socio-political issues and increased social mobility.

Any unilateral attempt towards the imposition of the Uniform Civil Code will give the vested interests an opportunity to whip up communal passions and thereby create further problems. There are political parties and leaders who are always eager to hijack such issues to improve their vote banks. Apart from the minority religious group  there are also communities belonging to the Scheduled Castes and Scheduled Tribes who oppose the Uniform Civil Code fearing that the code may undermine many of their age-old traditional practices.

Thus, it is imperative that the demand for the Uniform Civil Code should come from the minority communities themselves. It can start with a revision of the personal laws by the minorities concerned. Therefore, if the Uniform Civil Code is to be introduced in India, it should be the result of a proper consensus and enlightened discussions.

A UCC will most affect:

Marriage : In almost all recent cases where the need for a UCC has been emphasised women were at the receiving end of torture in the garb of religious immunity. Apart from the famous Shah Bano (1986) and Sarla Mudgal (1995) cases, there have been several other pleas by Hindu wives whose husbands converted to Islam only in order to get married again without divorcing the first wife. 

Divorce : All major religions have their own laws that govern divorces within their own community, and there are separate regulations under the Special Marriage Act, 1956 regarding divorce in interfaith marriages. Under a common civil code, one law would govern all divorces. 

Inheritance : Patriarchy is the basis of personal law, regardless of community. Inheritance laws have created less noise and debate than marriage and divorce laws, mainly because in this regard social inequity has cut across communities. And women, for most part repressed and unaware of even the rights that exist, have been unable to secure them. 

Adoption : Of all aspects of personal laws, those of guardianship, custody of children and adoption are the most inextricably linked to religion and culture. This is about bloodlines and perpetuation. And with children and young people involved, can have serious implications. A UCC will affect laws on adoption and therein could lie a lot of resistance.  As the UCC debate gathers steam, timesofindia.com readers react. The comments range from outright rejections and emphatic “yesses” to deep introspections. 

• Personal laws skewed against women
• Code of Honour
• Common code need of the hour: BJP
• UP Oppn leader opposes uniform civil code.

The UCC will affect only personal laws based on religion - those relating to marriage, divorce, adoption and inheritance. Criminal and civil laws are already common for all citizens. The advocates of such a code cite Article 44 of the Constitution under Directive Principles of State Policy, which provides: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

Those against point out that the endeavour talks of an ideal situation, but leaves the matter to the state’s discretion. They have also taken umbrage at the Supreme Court observing on July 21 that Parliament is yet to frame a uniform civil code. The matter is far more political than legal. Everytime the issue has come up there have been angry words from both sides of the debate. Politically, the BJP and some allied parties like the Shiv Sena and Jayalalitha’s AIADMK. On the other side, parties like the Congress and Left Front that depend a great deal on the minority vote, are against it.

The real social opposition each time has come from the Muslim community that sees any attempt to bring a UCC as an attack on its religious rights. The tussle has its roots primarily in the Shah Bano case of the 1980s when an old Muslim woman went to court against the way her husband had divorced her. In 1978, 65-year-old Shah Bano demanded alimony from her husband, who had abandoned her for another woman. According to Muslim law, Shah Bano was entitled to three months’ maintenance after over 40 years of marriage.

Let’s face it. For all the progress that is claimed to have been made in India, the fact remains that ours is a patriarchal society in which the  woman counts for very little. It could be Imrana, Indira or Irene, the manifestations could be varied, but the real malaise is that violence against women — physical, emotional and verbal — has the tacit approval of society. This is a social evil that needs to be eliminated through every channel available — through changes in legislation, by public discourse, via civil society participation and of course, political will. For far too long women have been victimised and justice has been denied to them under the pretence of personal law. To make matters worse, caste panchayats churn out verdicts that violate the law of the land, right under our noses, and everyone carries on as if it is business as usual. Are we going to allow an alternative judicial system? Ex-attorney general Soli Sorabjee has said: “Personal laws do not enjoy any immunity from compliance with constitutional obligations guaranteeing fundamental rights. Besides, one of the fundamental duties prescribed by the Constitution is to ’renounce practices derogatory to the dignity of women’ under Article 51 A (e)”. What is being done about this?

Political parties certainly have a right to protect their constituencies; where they err is in believing that their security lies in appeasing the most regressive sections of the vote bank. However, the tide has changed since the infamous Shah Bano case. The obscurantist brigade is coming under question, and women are particularly angry. Political parties need to read the writing on the wall and strengthen the hands of women who are asking for reforms, instead of appeasing retrograde sections of the community. Otherwise they will lose the support base they claim to nurture.

In the wake of the Imrana case I have been among Muslim women working at the grass roots. It is heartening to meet burqa -clad women who swear allegiance to Islam and the Qur’an but are unequivocal in their refusal to accept the retrograde decrees of clerics. That the Darululum Deoband backtracked in the Imrana case (they now claim no fatwa was issued) is in no small measure due to the outcry from within the Muslim community  In case after case, the clergy, instead of acting with justice and compassion towards women, seeks only to exercise its writ with coercion. When decrees made in the name of religion violate basic human dignity, they only expose religion to ridicule and make a laughing stock of the community.

It is in this context that we need to understand the issue of the uniform civilcode. The time has come to place personal laws of all religions under a scanner and reject those laws that violate the Constitution. Personal laws of all religions discriminate against women on matters of marriage, divorce, inheritance and so on. There is an urgent need to cull out the just and equitable laws of all religions and form a blueprint for a uniform civil code based on gender justice. The Hindu code cannot be applied uniformly to all religions. On the other hand, triple talaq would have to go, as would polygamy and all the advantages that accrue to Hindu undivided families in matters of property and inheritance.

The framers of our Constitution did not impose the uniform civil code because it was believed that there was insecurity within minorities and that with time they would grow in confidence and articulate the need for reforms within the community. Unfortunately, each time a communal riot takes place and the perpetrators go scot-free, it shatters the confidence of minorities and halts the process of reform. But 58 years is a long time for women to wait for gender justice. We need a debate on a uniform civil code not because it is a magic wand with which all ills that besiege women will disappear, not because it will lead to integration as the sangh parivar claims it will — unity need not imply a drab sameness — but because it will be an important step in freeing women from the shackles of a patriarchal society.

Uniform Civil Code for  National Integration

Eventually, because of discrepancies in the personal law, numerous cases came before the courts. Long years ago, in the Shah Bano case, the Supreme Court held that Article 44 has remained as a dead letter. The then Chief Justice of India Mr. Y.V. Chandrachud observed that, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”. Demand for the Uniform Civil Code was resisted in full fury by the Muslim minority, with distinguished exceptions. In many instances the Supreme Court directed the Government of its Constitutional obligations to enact a Uniform Civil Code like Sarla Mudgal case, Mary Roy Case vs. State of Kerala, Jorden Deinddeh vs. S.S. Chopra, Pannalal Bansilal Case, etc.

The latest reminder of the Supreme Court, setting the cat amongst the pigeons, on the matter a Uniform Civil Code, was in the case of John Vallamattom vs. Union of India (AIR 2003 SC 2902). In that case Chief Justice Mr. V.N. Khare stated that, “We would like to state that Article 44 provides that the State shall endeavor to secure for all citizens a Uniform Civil Code throughout the territory of India. It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.”

Lamentably, the concept of a Uniform Civil Code is not made a Fundamental Right of the citizen but relegated to the position of a concept desirable but not enforceable by any court in the country. The world treads frontward, ever forward, while those damned “secularists” of ours have forced us back to the shameful sinister ages. Secularism, the corner stone of our nation and the radical locomotive of social democracy for integration are confused with and propagated by bigoted extremists as the tombstone of the body politic — a terrible outrage. If secularism ceases to be the bedrock of our Republic, Swaraj becomes a mirage. If we, as people do not belong to a single nation, politically cemented by a strong sense of human solidarity, we will splinter and founder. Our national campaign is not pampering majority malignancy or minority prejudices. We must be secular in every cell.

M.J. Akbar wrote: “It is a myth that Islamic law is not amendable to re-interpretation. Islam has always been a dynamic faith, not a static one and principles have been placed in context whenever needed.” If the Shariat is to be strictly observed, a thief should have his hands cut off. Would today’s fundamentalist Muslims in India agree to this being practiced? Diversity in personal laws reinforces gender inequality and injustice. Furthermore, when criminal laws and some aspects of civil laws were common to the country as a whole then why the variation of personal laws? By accepting a Uniform Civil Code, the identity of no Muslim is threatened; only his social well-being is heightened and strengthened. Moreover, is not that what laws are made for?

Conclusion

In future, while implementing the Uniform Civil Code that has to be done, Shore nicely paraphrases: “A Uniform Civil Code should not be put together as the amalgam of or the common denominator of personal laws based on religion but as the Code that guarantees the best rights to all citizens, a Code in which each provision has been incorporated not because it is to be found in the Shariat or Manu or Christian or Parsi law but because on that matter it is the most humane and just provision we can think of, the one that is most in accord with good conscience, the one that is most likely to induce good conduct and creative flowering of the individual.”

The melody of the communal unity, the beauty of religious amity and the security of Indian humanity by way of Uniform Civil Code for national integration — these glorious values are the mission and message to the nation. We should therefore struggle to sustain this supreme value so that we do not perish, as a people, by discordant ideology.

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