Sample Materials of SSC CGL (Tier -3) Study Kit
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
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.
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
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
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,
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
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?
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.