Monday, November 29th, 2021 20:54:56

UNIFORM CIVIL : CODE Equality amongst Communities

By Lt Col Atul Tyagi
Updated: November 24, 2021 10:11 am

While the  catastrophic Virus named Covid -19 spread its influence in length & breadth of the country  causing relentless  havoc; the submission of five petitions related to religion neutral inheritance & succession laws created no less tremor in legal corridors of Delhi High Court & Apex Court. With no nonsense & plane speaking motion away from rhetoric’s & covers up, Apex Court has asked for reply from Centre. Earlier, A single judge bench in Delhi  High court observed that ‘ youth belonging to various communities, tribes, castes or religions who solemnize their marriages ought not be forced to struggle with issues arising due to conflict in various personal laws.’ Quote Apex Court has expressed its intent many a times in different cases to bring implementation of provision together.

 

Introduction

Universal Civil Code is a proposal which was put through constituent Assembly & debated at committee stage during the making of Constitution of India when the Constitution of India was being provided micro contours before its finalization. The Uniform Civil Code (UCC) refers to a common set of laws governing personal matters such as marriage, divorce, adoption, inheritance and succession for all citizens of the country exclusive of clutches of religions. The larger contextual landscape for the need of its implementation was to overcome heterogeneous compartmentalized length & breadth of India which had remained captive to umpteen numbers of traditions & practices in post independence Indian society thus indirectly proving to be most formidable stumbling block in the way of India attaining status of homogeneous Nation. From the Constituent Assembly down to Supreme Court of the day, Universal Civil Code (UCC) has remained one most  contentious & elusive subject. Somehow pessimists & Prophets of doom remained successful in providing inseparable intermixed version of personal laws with religion & thus ruled out separation of two, in the name of universalisation. 75 th year hence, the demand for Universal Civil Code has turned more piercing & lasting with no less than various higher Courts including Apex Court emphasizing upon the need of implementation of Article. Dr B R Ambedkar, the President Draft Committee, The Constitution of India, on the 4th of November, 1948 presented the Draft Constitution to the Constituent Assembly for deliberation. The uniform Civil Code provision was placed as draft article 35 as part of the Directive Principles of State Policy. The text of draft Article 35(Article 44) went like this “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.’ Article 44 of the Directive Principles in the Constitution says the “State shall endeavor to provide for its citizens a uniform civil code (UCC) throughout the territory of India.” The objective of this endeavor should be to address the discrimination against vulnerable groups and harmonize diverse cultural practices. The stand taken by B.R. Ambedkar in the Constituent Assembly debates has survived the years. Dr. Ambedkar had said a UCC is desirable but for the moment should remain voluntary.

Background

The debate on the UCC is centred on the argument to replace individual personal customs and practices of marriage, divorce, adoption and successions with a common code. Those in favour of one code argue that it will end discrimination in religions. The debate on this prodigal & controversial subject continued from the stage of framing of Constitution & kept on raging intermittently with Shah Bano case in which it was concluded that ‘Triple Talaq cannot take away the maintenance right of a divorced Muslim women who is not in a condition to maintain herself or her children when she is disowned or divorced by her husband. The judgment drew wide criticism by Muslim scholars for intervention by Court in divinity of Quran as Muslim personal law draws its existence & sustenance form Holy book.

Muslim members of Constituent Assembly vociferously debated against the Uniform Civil Code (UCC). Their arguments were based on following contours:

  • That uniform civil code provision violated the freedom of religious provisions of the Draft Constitution,
  • The uniform civil code would create disharmony within the Muslim community,
  • No interference must take place in the personal law without the approval of religious community.

They proposed amendments as under:

  • Introduce provisos to Draft Article 35 such that personal laws are kept out of its scope
  • Implement the uniform civil code only with the prior assent of the community in question.

The opposite view emanated from legendaries like K.M. Munshi, Alladi Krishnswamy and Dr B R Ambedkar who brought following points of defence for Uniform Civil Code (UCC) in plausible & efficacious manner:

  • That the uniform civil code was important for unity of the nation and also for upholding the secular credentials of the Indian Constitution.
  • Till now the debate seemed to be around Muslim sentiments. Munshi argued that even Hindus were insecure about this provision. He asked the members of the Assembly : How was any reform possible in the Hindu society – specifically with regards to the rights of women – if there was no uniform civil code,
  • Munshi asked the Muslim members: What was inheritance/marriage etc. got to do with personal law?

Alladi Krishnaswami Aiyyar joined the debate & emphasized that the UCC would create amity among communities. He further paid emphasis on the ability of the UCC to bring about unity in the country.

Ambedkar came as last interventionist in the debate & emphasized eloquently as under :

  • That there was nothing new about the uniform civil code. There already existed a common civil code in the country except for the areas of marriage, inheritance – which are the main targets for the uniform civil code in the Draft Constitution,
  • He reminded the Constituent Assembly that the uniform civil code was only optional. By virtue of it being in the Directive Principles, the state is not obliged to immediately bring the provision into effect. It can do so when it wishes to. Thus a compromise formulae was worked out between advocates & Opposite sides for implementation of Universal Civil Code (UCC) by placing it in Directive Principles instead of fundamental rights. Since directive principles exist in suggestive directional role & not compulsory to be followed.

 

Contention

The whole contention appears centered around mixing of opium dose of religion with personal rights related to marriage, succession etc. Devoid of prescribed definition, Religion is a social-cultural system of designated  behaviors  and practices, morals, beliefs, & texts that relates humanity to supernatural, transcendental and spiritual elements. The religion consists of practices deemed exclusive & fundamental to establish connectivity between human being & Almighty as enshrined in holy books of different religions. In India, apart from various communities, there is plethora of castes, sub castes, tribal’s etc who follows their unique socio cultural issue in terms of personal practices related to marriage & succession etc. With that heterogeneity, India can barely move an inch in direction to achieve commonality, uniformity & consistency where oneness & inclusiveness with integration & cohesiveness which are essential ingredients for the evolution & shaping of final contours of a Nation. The evolution of religion & personal laws has been a continuum process particularly amongst non Muslims religions & practices. The call for change & adaptation came from within, in last two century & thus the process of reform went of transition without murmuration vis a vis rigid social & religious practices & customs entrenched for time immemorial. Sati pratha is one illustrious evil practice which went of the landscape of Hindu orthodox customs due to enlightened ole of persons of eminence from within the community. There are some more laws which went of scissors of time & evolution which are as under:

  • Hindu widow remarriage act 1856,
  • Married women property act 1874,
  • Hindu inheritance removal of disabilities Act 1928),
  • Bengal sati regulation 1829,

Hindu Code bills were introduced which largely codified and reformed personal laws in various sects in Indian religions like Buddhist, Hindu, Jains, Sikh while exempted Christians, Jews., Muslims & Parsis.

  • Hindu marriage Act, 1956
  • Hindu succession Act, 1963
  • Indian Christian marriage Act, 1872
  • Indian divorce Act 1869

One side always believed that the Universal Civil Law (UCC) is a means of emancipation from old, rigorous & conservative social practices cosmetically anchored with religion; the other group felt that ways of living is intrinsically linked to over all teaching of holy book hence divorcing personal law from religion is treacherous & beyond truth.  The second largest population is led by generally self declared leaders who air their views on the issue in highly contemptuous & myopic pith. Now many of them have sudden eruption of lava in them larely due to convoy halts up & boring life pattern. Currently, different laws regulate these aspects for adherents of different religions and a UCC is meant to do away with these inconsistent personal laws. These laws include the Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Indian Divorce Act, Parsi Marriage and Divorce Act. However, Muslim personal laws are not codified and are based on their religious texts, though certain aspects of these are expressly recognized through laws such as the Shariat Application Act and Dissolution of Muslim Marriages Act.

 

Constitutional Back-up

Article 44 requires the state to strive to secure for the citizens of India a uniform civil code throughout India. The Court has emphasized in Sarla Mudgal v. Union of India that Art. 44 is based on the concept that there is no necessary relation between religion and personal law in a civilized society.

Article 25 guarantees religious freedom whereas Art. 44 seeks to divest religion from social relations and personal law.

Article 25 Constitution of India lays down individual Fundamental rights to religion.

Article 26(B) Constitution of India upholds the right of each religious denomination to manage its own affairs in matters of religion.

Article 27, Constitution of India grants Freedom as to payment of taxes for promotion of any particular religion. No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Article 29 defines the right to conserve distinctive culture.

Article 37 of the Constitution declares that the DPSP “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.

The sum total of spirit as demonstrated in various provisions of Constitution of India suggest that personal laws may not have to draw any connection or sustenance form religions. The amendments in Hindu marriages & succession Acts were cast long back in fifties without even murmur.

 

Judicial Propulsion

The spirit of article 44 could be jelled only in codification and secularization of Hindu Law. On the other hand, the volcanic resistance could be gauged from the sides of Muslims who realized & so put across their points by presenting their personal laws as part of Hoy Quran & necessity to be governed by the same. The codification of Muslim Law remains a distant dream as not even miniscule population supports the same. The Supreme Court has emphasized that steps be initiated to enact a uniform civil code as envisaged by Art. 44. Reviewing the various laws prevailing in the area of marriage in India. the Court has said in Ms. Jorden Diengdeh v. S.S. Chopra: …. “The law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and makes a uniform law applicable to all people irrespective of religion or caste….. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce…… “ In another case, Mohd. Ahmed khan v. Shah Bano Begum, the Supreme Court has ruled that a Muslim husband is liable to pay maintenance to the divorced wife beyond the Iddat period. The Court has regretted that Art. 44 has remained a “dead letter” as there is “no evidence of any official activity for framing a common civil code for the country”. The Court has emphasized: “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. The Court appreciates the difficulties involved in bringing persons of different faiths and persuasions on a common platform, but, nevertheless, the Court has said, “a beginning has to be made if the Constitution is to have any meaning”. “It is the state which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so”. The apex court pleaded for a uniform civil code “for protection of the oppressed and promotion of national unity and solidarity.”

Youth belonging to various communities, tribes, castes or religions who solemnize their marriages must not be forced to struggle with issues arising due to conflicts in various personal laws. The tradition barriers of religion, community and caste are slowly dissipating.

Codifies statutes and laws provide for various protection to parties against any unregulated practices from being adopted. Relegating parties to customary courts would be antithetical to the purpose behind enacting that statue like HMA 1955.

Call for one nation one Law or the uniform civil code rest on the personal law of all religions those endorsing the uniform civil code highlight the discriminatory nature of personal law especially to the women.

Pros & Cons.

Constitutional morality goes beyond the text of the constitution and is dis earned by intimate reading of constitutional values. Constitutional’s morality is by large interpretative. Underlining total confusion owing to personal laws governing religious tactics, the Supreme court sought to know from the government if it was willing to bring the uniform civil code in the country.

Pros of uniform civil code: –

  • To provide equal status to each citizen.
  • To promote gender parity.
  • To accommodate the expression of the young people.
  • To support national intergradation.
  • To bypass the contagious issue of reform of existing personal laws.

 

Conclusion

Uniform Civil Code (UCC) is desired but found enmeshed in contradictions of provisions of Shariat laws & practices & Article 14 –right to equality which envisages that all communities must come under the same umbrella of rules. While we envisage equality amongst communities; there is whole lot of need to cause equality within religion. Uniform Civil Code shall be embraced smoothly if wiser and mature elements including women largely from Muslim community descend on  viable platforms to ensure the end of social and sex discrimination. The Majority populace let amendments happen in her personal laws in 1955 itself without murmur and perhaps that became one grand reason for the opening of community and liberation of women folk in real sense. The baseless leaders, of Muslim community largely engulfed in illiteracy, do play tricks and vagaries to keep population their stooges. The role of literate and liberated begins now. The persons like Arif Mohammed Khan who carry wider and broader reach and influence in community have to manifest their committed role in convincing the larger ignorance laden populace.

 

By Lt Col Atul Tyagi

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