Author: Vishwa Shah United World School of Law, Gandhinagar
The British Government flourished our nation by granting us laws on the basis of “Lex Loci” by framing various laws like the Law of Crimes, Evidence and the Contract thereby leaving the Uniform Civil Code untouched and keeping it least important.
The idea of a Uniform Civil Code talks about adapting the ideology of one nation and one policy. The Constitution of India at its core talks about granting equal opportunities and equal rights to every citizen and to keep the sanctity of the following rights. The citizens of the nation irrespective of their caste, creed and religion are the citizens of the nation first and are governed by similar laws and regulations. If every citizen takes the act of Constitution as their heart and soul, and also other laws to save their rights and also to grant similar rights, the citizens should also consider the same regarding personal laws.
Time and again, India has talked about “Unity in diversity”, regardless of people belonging to various sections, belief systems and diversities. People live peacefully with an acknowledgement that no one is above the law and none of us is below it. Indian ideology is not exhaustive or limited it has always welcomed people and also accepted cultures belonging to various geographical and cultural factors.
The concept of Uniform Civil Code includes consideration of a unique and same set of rules for personal laws. The different personal laws from every caste should be streamlined to one common law, binding upon everyone.
It is defined in our Constitution under Article 44 of Directive Principles of State Policy. It states that “State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.” The objective of this endeavour should be to address the discrimination against vulnerable groups and harmonise diverse cultural practices.
The demand for a Uniform Civil Code was first put forward by women activists at the beginning of the 20th century, with the objective of women’s rights, equality and secularism. Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. In 1956, the Indian Parliament passed the Hindu Code Bill amidst significant opposition. Though, a demand for a Uniform Civil Code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists. They had to finally accept the compromise of it being added to the Directive Principles because of opposition from the Muslim members in the Constituent Assembly of India.
After Independence, only the State of Goa adopted the Portuguese Civil Code which enforced a UCC for all its citizens. Under this code, a married couple holds joint ownership in all assets owned and acquired by each spouse. Even parents cannot disinherit their children entirely at least half of the property must be passed on to them. Muslim persons who have registered their marriage in Goa are not allowed to practice polygamy.
The Supreme Court has also emphasized on Uniform Civil Code, deriving from certain landmark judgements like the Shah Bano case in 1985, Shah Bano moved to Supreme Court for seeking maintenance under Section 125 of the Code of Criminal Procedure when her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance. The Supreme Court gave the verdict in favour of Shah Bano by applying Section 125 of Indian Criminal Code which is applied to all citizens irrespective of religion. Then Chief Justice, Y.V Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. And so, the Court directed Parliament to frame a UCC.
The government also brought in a positive note by eradicating the practice of the system of Triple Talaq which shows the awakening towards equality and fair and just protection to women in the society. Some of the news from the society often goes out of our sight which requires the highest amount of attention.
This is the second instance in which the Supreme Court again directed the government under Article 44. In this case Sarla Mudgal v Union of India, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam can solemnise a second marriage. The Supreme Court held that adopting Islam for a second marriage is an abuse of Personal laws and further said that Hindu marriage can only be dissolved under the Hindu Marriage Act, 1955 i.e. merely by converting himself into Islam and marrying again would not dissolve the marriage under the Hindu Marriage Law and thus it will be an offence.
Also, passing the verdict of Juvenile Justice (Care and Protection of Children) Act seems to be an attempt in moving towards UCC as it paved the way for the adoption of a child by persons from Muslim Community even though not allowed under their personal laws. The Supreme Court of India again asked the Union Government to form a UCC to remove gender inequality and abolish the retrograde practices followed under the framework of personal laws.
The common Civil Code is likely to put in more secular transformation of the society and this progressive reform brings in more awareness and also eliminates the discrimination amongst women and also strengthens the pillars of the unity of the nation. If there can be one particular Criminal Code irrespective of creed, caste or domicile, enacted for the whole of the nation then it is also necessary that there should be a common Civil Code so as to demarcate the differences between them.
The motivation of UCC is also relative to tax inconsistencies in personal laws like the Hindu Undivided Families are exempted from taxes whereas Muslims are exempted from payment of stamp duties on gift deeds.
The achievement of UCC is not a cakewalk for any nation but it also states an awakening amongst people to save certain sections of the society from exploitation and abundance. The procedure for implementation can be predicted as time-consuming but it can be rated as one of the best ideologies keeping the formulation of secularism in one hand and protection in another.
Article 25 and the Uniform Civil Code showcase the modern advancement, freedom of religion, freedom of profession and consciousness. Therefore the co-existence of both the theories must be incorporated with proper incarnation and requirements of the society.
Therefore, as an author my opinion would be to incorporate the UCC in a way similar to the abolishment of the Triple Talaq in 2017 , like the implementation of Article 377, Article 370 as one nation and the Citizenship Amendment Act (CAA) in 2019.
Article 14, 15, and 21 guarantees non-discrimination, right to life and fundamental rights of a person. The concept of UCC safeguards the following rights combining aspects of personal laws. Hence, the UCC cannot be implemented as a whole since it breaches Article 25 of the Constitution and it might also harm the morale of various belief systems. The codification of UCC can be done only with modernisation and progressive framework of new laws into the current personal laws. Thus, the concept consists of care, concern and cohesiveness.