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Insights into Editorial: Why India needs a uniform civil code

Insights into Editorial: Why India needs a uniform civil code

Livemint

04 July 2016

The Union Law Ministry recently asked the Law Commission to examine in detail all issues pertaining to the Uniform Civil Code and submit a report to the government. With this, issues related to the implementation of UCC across India have once again come to the fore.

What is uniform civil code?

Uniform civil Code is a proposal to have a generic set of governing laws for every citizen without taking into consideration the religion.

What the constitution says?

Article 44 of the Constitution says that there should be a Uniform Civil Code. According to this article, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Since the Directive Principles are only guidelines, it is not mandatory to use them.

Historical background:

Uniform Civil Code was one of the key issues debated during the writing of the Constitution, with passionate arguments on both sides. However, unable to arrive at a solution, a directive principle was struck regarding this in the constitution.

  • But, several members of the Constituent Assembly disagreed vehemently with the compromise and argued that one of the factors that have kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life.
  • Though, after independence, few governments tried to have a UCC, religious conservative groups did not allow governments to proceed ahead in this regard.

India needs a Uniform Civil Code for the following reasons:

  • A secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
  • Another reason why a uniform civil code is needed is gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example.
  • Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution.
  • Courts have also often said in their judgements that the government should move towards a uniform civil code including the judgement in the Shah Bano case.

Why it is difficult to have a UCC?

India being a secular country guarantees its minorities the right to follow their own religion, culture and customs under Article 29 and 30. But implementing a Uniform Code will hamper India’s secularism.

Concerns:

What is unfortunate is the demand for UCC has always been framed in the context of communal politics. Many see it as majoritarianism under the garb of social reform.

Way ahead:

The government cannot remain silent on the issue anymore. It is obvious that the government would have to face several challenges from many conservative groups on this front. But, it will have to work hard to build trust, and more importantly, make common cause with social reformers rather than religious conservatives, as has been the wont of previous governments.

  • One strategic option is to follow the path taken after the fiery debates over the reform of Hindu civil law in the 1950s.
  • Rather than an omnibus approach, the government could also bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages.
  • A comprehensive review of several other laws in the context of gender justice would also do well.

Goa model:

The civil law in Goa—derived from the Portuguese Civil Procedure Code of 1939—could be a useful starting point for a national debate. Goa continued with its practice of treating all communities alike even after its entry into the Indian Union.

Conclusion:

Government’s move to refer this matter to the law commission is hopefully the first step towards the implementation of something that has been delayed for far too long. It is now 66 years since the Constitution came into force. It is high time there was a decisive step towards a common civil code.