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Insights into Editorial: Uniform Civil Code debate gains momentum

 

 About Uniform Civil Code (UCC):

UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.

Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.

Article 44 is one of the Directive Principles of State Policy (DPSP).

DPSP as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

 

Historical perspective: Pre-Independence (colonial era):

The debate for a uniform civil code dates back to the colonial period in India.

The Lex Loci Report of October 1840– It stressed the importance and necessity of uniformity in the codification of Indian law, relating to crimes, evidence and contract.

But it also recommended that personal laws of Hindus and Muslims should be kept outside such codification.

The Queen’s 1859 Proclamation– It promised absolute non-interference in religious matters.

So while criminal laws were codified and became common for the whole country, personal laws continue to be governed by separate codes for different communities.

 

Need of Uniform Civil Code:

The society has been fragmented in the name of religions, sects and sex.

There are different laws governing rights related to personal matters or laws like marriage, divorce, maintenance, adoption and inheritance for different communities.

The demand for a uniform civil 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.

 

Constitutional provisions relating to religious freedom and secularism are:

Part IV, Article 44 of the Constitution states that “The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India”.

However, Article 37 of the Constitution itself makes it clear the DPSP “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”.

This indicates that although our constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory.

  1. Article 15- No discrimination on grounds of religion, race, caste, sex or place of birth.
  2. Article 25- Freedom of conscience and free profession, practice and propagation of religion, subject to reasonable restrictions on the grounds of public order, health and mortality.
  3. Article 25 (2)-provides for regulating secular activities associated with religious practices, social welfare and reform.
  4. Article 26- Right to establish and administer religious institutions.
  5. Article 27- Prohibits the state from levying a tax, proceeds of which are used for the benefit of a particular religion.
  6. Article 28- deals with the issue of religious instruction in educational institutions.

The 42nd Constitutional Amendment Act inserted the word ‘secularism’ in the preamble. In the S.R.Bommai vs Union of India case, the Supreme Court held secularism as a basic feature of the constitution.

 

Tribal communities

One of the reasons behind the government’s ambivalence, argued some leaders, is the potential fallout of a such move on tribal communities.

In our State, tribals have their own personal laws and we wouldn’t like our government to disturb that equation.

But the issue has seen a renewed push in the Supreme Court as well, especially after the top court indicated that the government should explore the UCC as a means to secure gender justice, equality and dignity of women.

The court’s view is based on several petitions claiming that personal laws governing the followers of certain faiths discriminate against women.

The Supreme Court to direct the government to constitute a judicial commission or a high-level expert committee to prepare a draft UCC in tune with international conventions which protect the rights of women.

 

‘Promotes nationalistic fervour’:

  1. Experts argues that the UCC would not only protect the vulnerable sections, including women and religious minorities, but “promote nationalistic fervour through unity” as well as simplify the complex personal laws.
  2. A Bench of Justices had said that though the “Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country”.
  3. The judgment had said that despite exhortations of this court in the case of Shah Bano in 1985, the government has done nothing to bring the Uniform Civil Code.
  4. The Shah Bano case, which upheld a Muslim women’s right to maintenance was considered a step in the direction of implementation of the UCC.
  5. However, the government, in 1986, enacted the Muslim Women (Protection of Rights on Divorce) Act which nullified the Shah Bano judgment. The Act allowed maintenance to women only for 90 days after the divorce.
  6. The Supreme Court’s exhortation came despite the Law Commission of India, in a consultation paper released in 2018, finding the UCC “neither necessary nor desirable at this stage” in the country.

 

Introduction of UCC on various instances:

The call for a Uniform Civil Code (UCC) has long featured in the political and legislative debates ever since before the days of formulation of the Constitution.

Time and again, the Supreme Court has also been asserting the need for a UCC.

Recently, Supreme Court described Goa (with a common family law) as a “shining example” where “uniform civil code is applicable to all, regardless of religion except while protecting certain limited rights”.

21st Law Commission also submitted a consultation paper on Reforms in Family Laws in India.

 

Suggestions for Implementing a UCC:

To realize the goals of the DPSP and to maintain the uniformity of laws, the following suggestions need immediate consideration:

  1. A progressive and broadminded outlook should be encouraged among the people to understand the spirit of the UCC.
    1. For this, education, awareness and sensitization programmes must be taken up.
  2. The Uniform Civil Code should be drafted keeping in mind the best interest of all the religions.
  3. A committee of eminent jurists should be constituted to maintain uniformity and care must be taken not to hurt the sentiments of any particular community.
  4. The matter being sensitive in nature, it is always better if the initiative comes from the religious groups concerned.

 

Conclusion:

Article 44 of the Constitution does not mandate but only asks the State to make an endeavour to secure the UCC for all citizens.

In his Constituent Assembly speech, Dr. B.R. Ambedkar had explained that the UCC was incorporated into the Constitution as a “desirable” move, but for the moment “voluntary”.

A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation.