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Uniform civil code: Still Unresolved Question

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Uniform civil code is a much talked about law that needs to replace the personal laws which govern the rights of people in terms of customs and rules of each religious community, covering personal issues like marriage, adoption, divorce, inheritance and maintenance. These personal laws or civil codes pertaining to personal issues differ from community to community and hence the laws of the Hindu community in India are different from those of the Muslim, Parsi, Christian and other religious communities.

We often claim India as a land of unity in diversity. But is it really. It’s still not clear. India has multiplicity of family laws. The Christians have their Christians marriage Act 1872, Indian divorce Act 1869 and the Indian succession Act 1925. Jews have their own. Parsis have their own Parsis Marriage and Divorce Act 1936, and have their own separate law of inheritance contained in the succession. So as Hindus and Muslim have their own separate law different from the rest of the succession Act. Also have their separate personal laws. As per as justice is concern (especially for women), the miserable condition of justice in India is the result of absence of Uniform Civil Code (UCC).

It is absurd to have a Hindu marriage act or a Parsi family law or a set of Muslim personal laws. As long as these laws remain in the statute books, we’ll always be Hindus, Muslims, Parsis, Sikhs, Christians or whatever. We’ll never become Indians.

What’s a UCC?

  • The term civil code is used to cover the entire body of laws governing rights relating to property and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance.
  • This code essentially means unifying all these “personal laws” to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.

Position of Indian Constitution on UCC:

  • Article 44, which is one of the “directive principles” laid down in the Part IVth of the Constitution, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” As Article 37 of the Constitution itself makes clear, the directive principles “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”.

SC position on UCC:

  • The pronouncement of the Supreme Court in John Vallamattom’s case in 2003 must be welcomed. The Bench expressed its regret that Article 44 of the Constitution envisaging a uniform civil code throughout India has not been given effect Similar views had earlier been expressed in several decisions of the Court, including in the 1985 decision in Shah Bano’s case, in the Sarla Mudgal case. The existence of separate personal laws; many of them derogatory, discriminatory and therefore unconstitutional, for different sections of society strikes at national unity and integrity. Thus, a woman in India is a Hindu, Muslim, Parsi or Christian; there being no such entity as an “Indian” woman.
  • The Supreme Court, in its 1997 decision in AWAG’s case, reviewed its earlier decisions to hold that while “custom and usage” are indeed subject to the fundamental rights guaranteed by Part III of the Constitution, “personal law” is immune to challenge for violating the fundamental rights. The Supreme Court refused to interfere with discriminatory provisions of personal law on the specious plea that the remedy lies with Parliament, and not the Court.

Some questions are needed to be answer:

Would a uniform code affect the personal laws of only one community?

  • Not at all. The perception that a uniform civil code would necessitate changes in only Minorities personal law is quite incorrect. As women’s organisations and others have repeatedly pointed out, personal laws governing different communities in India have a common feature; they are all gender-biased.
  • For instance, the law pertaining to succession among Hindus is unequal in the way it treats men and women. A truly modern, secular, non-discriminatory and progressive code would, therefore, mean changes in all personal laws. The concept of the “Hindu undivided family”, at least insofar as it pertains to succession, would also obviously have to undergo a change under a uniform civil code. Similarly, Muslim, Christian and other personal laws too would have to change. This also explains why historically changes in personal law have been resisted not just by one community, but by the ruling orthodoxy in all of them.

Why is there no uniform civil code yet?

  • It was Prime Minister Jawaharlal Nehru who had first put forward the need for a uniform law during his tenure but he was only successful in including it in the Directive Principles of the Indian Constitution. The Hindu Code Bill in the 1950s was brought forward to bring uniformity with regard to customs, practices and legal aspects of personal matters. But, this also faced severe protests and had to be scraped in 1956.
  • Shah Bano case: In 1985, the need for a uniform civil code again came into focus in the context of the Shah Bano case. A 65-year old Muslim woman, Shah Bano, demanded alimony from her husband after she was divorced by him by uttering the word “talaaq” three times as per the Muslim personal law. Bano was entitled to just three months’ maintenance under the Muslim law. The matter also reached the Supreme Court which favoured a uniform code. However, there were protests by the Muslim community. The Shah Bano case became a nationwide controversial political issue. And it still remains as such because the Muslim community and other minorities are not in favour of a uniform law which they feel will be a threat to their culture.
  • If a uniform civil code is made, a single set of laws will apply to all the citizens irrespective of one’s religion, especially with regard to marriage, divorce, adoption, property, maintenance and inheritance, etc. The minorities feel that this will be tantamount to interference in their personal matters. Successive Central Governments had never made an attempt to touch this sensitive issue. Former Law Minister M Veerappa Moily in 2011 had clearly said that his Government (the erstwhile Congress Government) will not touch the issue of uniform civil code as it would involve changes in the personal laws of all the people, especially the minority communities.
  • BJP Government and the uniform civil code:
  1. According to the present BJP Government, same laws must apply to one and all. The present Government during electioneering in April 2014 had clearly mentioned the need for a uniform civil code in its manifesto, which stated that gender equality and protection of the rights of women in India are possible only when the country adopts a uniform civil code and hence there is the need to draft such a one which will incorporate the best traditions and blend them with the modern times.
  2. Prime Minister Narendra Modi had said that his Government will make efforts to formulate a uniform civil code, but that does not mean that all the citizens will come under the Hindu code. He also stated that there are several provisions in the Hindu code which are not necessary and need reforms. It is unnecessary to keep the 18th century laws in the 21st century.
  • Since it involves a change in laws, an obvious prerequisite is sufficient support for the move within Parliament. The reason this has been difficult to achieve has been because most parties have held the view that the reform of laws pertaining to the personal domain is better done by pressure for such change from within communities rather than as an imposition from above.
  • Further, for historical reasons, the demand for a uniform civil code has acquired communal overtones which have overshadowed the innate merits of the proposal.

Uniform civil code: will it work in India?

  1. A comparative study of the personal laws of 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. In fact, the heterogeneity of Hindu law itself is such that even the possibility of a uniform Hindu code is ruled out.
  2. 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 “saptapadhi” form of marriage that is followed mostly in northern India, the marriage is deemed to be complete and binding when the couple take seven steps around the sacred fire.
  3. On the other hand, in the south “suyamariyathai” and “seerthiruththa” forms of marriage are followed. Under these, the 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 put a ring on each other’s fingers or if the bridegroom ties a “thali” around the neck on the bride.
  4. Also, for a marriage to be valid under Hindu law it has to be solemnised in accordance with the customary rites and ceremonies of at least one of the parties. Thus, if a Jain marries a Buddhist by performing the rites of a Sikh, the marriage is invalid (Sakuntala v Nilakantha 1972). In Muslim law there are no elaborate rites or ceremonies, but Sunni and Shia practices differ.
  5. It, therefore, needs to be asked if it is possible or practicable to reconcile these divergent laws and formulate a uniform or common code that is acceptable to all communities.
  6. India already has an optional civil code in the form of the Special Marriages Act, 1954. This, read with similar Acts such as the Indian Succession Act, 1925, provides a good legal framework for all matters of marriage, divorce, maintenance and succession for those who may wish to avoid the religion-based laws.

Can we really need UCC?

  1. This distinction between “custom and usage” and “personal law” collapses when one finds that personal law more often than not stems from custom and usage.
  2. Law in Article 13 of the Constitution would, therefore, necessarily include personal law. The provisions of the personal law, to the extent they are inconsistent with, or in contravention of, the fundamental rights, would thus be void.
  3. While the requirement of a uniform civil code has been debated, no one would seriously dispute the proposition that a provision in personal law that offends fundamental rights must be struck down as unconstitutional. Once this is accepted and the outrageous discriminations done away with, uniformity of laws may, to a large extent, rule out the need for enacting a uniform civil code.
  4. It is heartening to note that the Supreme Court has taken a step in this direction by striking down as unconstitutional Section 118 of the Indian Succession Act that meted discriminatory treatment to the Christian community.

Uniform Civil Code; the women’s movement perspective:

  • The new equation of ‘women’s rights’ with the UCC is at least partly a result of the interventions by the women’s movement in the debate in the 1990s. However, within rightists (and mainstream) discourse, it is assumed that only minority women need saving, for ‘we Hindus’ have already given ‘our’ women equal rights.
  • The debate over the UCC in contemporary India is produced by the tension between two notions of rights in the Fundamental Rights (Part III) of the constitution. The bearer of rights is both the individual citizen and the collectivity; the former is the subject of Articles 14 to 24 which ensure the individual’s rights to equality and freedom and the latter of Articles 25 to 30 which protect religious freedom and the educational and cultural rights of minorities.
  • It is from the latter that religious communities derive the right to be governed by their own ‘Personal Laws’. Since these Personal Laws cover matters of marriage, property inheritance and guardianship of children, and since all Personal Laws discriminate against women, the tension in Part III of the constitution can be read as a contradiction between the rights of women as individual citizens and those of religious communities as collective units of a democracy.
  • While the demand for a UCC is claimed on grounds of national integrity and women’s rights, resistance to the UCC comes on the grounds that its imposition would destroy the cultural identities of minorities, the protection of which is crucial to democracy. However, both positions are deeply problematic for feminists.
  • The argument that presents national integrity as the rationale for a UCC, and its conflation with ‘women’s rights’, is unacceptable for two reasons.
  1. The fundamental problem with the ‘national integrity’ argument emerges from the recognition of the homogenizing thrust of the Hindu Code. The entity of the ‘nation’ was constructed through the assertion of a dominant voice and the marginalization and exclusion of a multiplicity of other interests and identities, and is not a value that feminists can espouse.
  2. We need to address the explicit assumption that while Hindus have willingly accepted reform, the ‘other’ communities continue to cling to diverse and retrogressive anti-women laws, threatening the integrity of the nation state.
  • It is misleading to claim that Hindu Personal Law was reformed. It was merely codified, and even that was in the face of stiff resistance from Congress leaders. In fact, the proposed Bill meant to overhaul laws relating to marriage and inheritance was dropped on the eve of the first general elections (Ambedkar resigned as Law Minister on this issue) and it was only in 1955-56 that parts of it were pushed through by Nehru as the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoption and Maintenance Act.
  • What the Hindu Code achieved was the codification of the vast and heterogeneous practices of communities termed ‘Hindu’ if they were not Muslim/Parsi/Christian, bringing them into conformity with what was assumed to be the ‘Indian’ and ‘Hindu’ norm; that is, North Indian, upper-caste practices. Other practices that did not match this norm were explicitly dismissed during the debates in Parliament as being un-Indian. These new Acts were by no means an unqualified advance for women’s rights. On the contrary, codification put an end to the diversity of Hindu laws practiced in different regions, in the process destroying existing, more liberal customary provisions in many cases.
  • Conversely, there are features of Muslim Personal Law that are better for women than Hindu Personal Law; the Muslim marriage as contract protects women better in case of divorce than the Hindu marriage as sacrament; the Muslim law of inheritance protects women’s rights better than Hindu law, and the right of mehr, which gives Muslim marriage the status of a civil contract, is the exclusive property of the wife.

The women’s movement and the UCC; eight decades of a debate:

  • The response of the women’s movement to the UCC has taken different forms from the first articulation in 1937 of the demand for a Uniform Civil Code for all religious communities, by the All India Women’s Conference. This demand continued to be made by larger sections of the women’s movement till the late 1980s. By the early 1990s however, there was considerable rethinking on the issue.
  • By 1995, what emerged was a broad range of positions, from the continued demand for a UCC, to outright rejection of such a move, and calling instead for reforms within Personal Laws. The general consensus in the women’s movement by the end of the 1990s was that the campaign for gender-just laws should be conducted at three levels:
  1. Support for and initiation of attempts to bring about reform within Personal Laws;
  2. Bringing about legislation in areas that are not covered by either secular or Personal Laws, such as domestic violence and right to matrimonial home, thus avoiding a direct confrontation with communities and communal politics; and
  3. In the long term, setting up a comprehensive gender-just framework of rights covering not just areas covered by Personal Laws, but also the ‘public’ domain of work (creches, equal wages, maternity benefits etc) which should be available to all citizens.
  • In the first two areas listed above, there have been distinct achievements:
  1. Divorce law for Indian Christians was made more gender just through sustained engagements within the community by feminists, resulting in the passing of the Indian Divorce (Amendment) Act of 2001. 
  2. Different versions of model nikahnamas that protect the rights of women have been prepared by Muslim reform groups, though these have yet to be accepted by the community leaders.
  3. Interestingly, there have been positive outcomes from even the Muslim Women (Protection of Rights on Divorce) Act of 1986 that was passed to override the Supreme Court decision in the Shah Bano case which asserted that Muslim women were covered by section 125 of the CrPC, thus entitling them to maintenance under a secular provision.
  4. The Muslim Women Act of 1986 took Muslim women out of the purview of this secular provision, provoking outrage from the women’s movement and anti-patriarchal voices from the Muslim community, but studies of the working of the Act in the three decades since its passing, show that Muslim women have benefited from its creative interpretation by courts.
  5. The tactic of focusing on areas not covered by Personal Laws has resulted in the Domestic Violence Act (2005) which gives women protection from domestic violence and rights to the matrimonial home, and in amendments to the Juvenile Justice Act (2006) that has enabled people of all communities to adopt children legally.

Why uniform civil code in India is necessary?

Whether a uniform code will actually be implemented or not, only time will tell. But, a uniform code is necessary for the following reasons:

  • A secular country: India can be a secular country in the true sense of the word only when all communities belonging to various religions like Hindu, Islam, and Christianity etc. follow a single set of laws, thereby uniting diverse sections of people.
  • Uniting and integrating country: India can be a united country only if same laws related to inheritance, marriage, family, land etc. are applicable to all citizens, irrespective of the caste, creed, communities they belong to. This way all Indians will be treated equally.
  • Protecting women’s rights: The age-old religious customs and personal laws of our country are usually in favour of men, especially the Muslim men. A uniform civil code will help in improving the conditions of women in India. It will help in bringing changes in the age-old traditions that have no relevance in today’s modern society, where women should be given equal rights and should be treated fairly.
  • All developed countries have a uniform civil code: This is sign of a progressive society. Then why should India lag behind? A country having a uniform civil code means it has moved away from caste and religious politics. While we feel proud of our economic growth, we cannot say the same about our social growth. A uniform civil code in India will go a long way in attaining the constitutional goals.
  • Vote bank politics: Implementing a uniform code will definitely reduce the role of vote banks in electoral politics. Politicians of this country exploit such tools to get the maximum number of votes of the minorities.
  • Last but not the least, a uniform civil code in India will ensure not division on the basis of religion but unity by creating a feeling of nationality.

Goa is the only State to have implemented the Directive Principle on uniform civil code and the State today has Goa Civil Code or the Goa Family Law that governs all the people of Goa, irrespective of the religion or the community to which they belong.

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