AUTHOR- Kareena Wadhwani, Indore Institute of Law.
India being a country with cultural and religious diversity provides freedom to its citizens, and therefore, bestowing them with a ground for existence of some personal laws. In order to remove the existence of such personal laws (related to matters like marriage, divorce and inheritance of property), the Supreme Court persuaded the legislature to bring Uniform Civil Code in Mohd. Ahmed Khan v. Shah Bano Begum. Besides this, Article 44 of the Indian Constitution of India specifies that every citizen of the country must be secured with a Uniform Civil Code that is applicable throughout the country. Inspite of all this, it is not yet framed by the Parliament of India. In 1995, in Sarla Mudgal & others. v. Union of India, same was suggested by Hon’ble Justice Kuldip Singh to frame Uniform Civil Code. It basically replaced the personal laws that are based on practices or customs of a particular religion with a common set of laws and legislations applicable on all citizens irrespective of their religion.
2. Historical Background of Uniform Civil Code
Before British regime, the East India Company tried to reform social and religious practices. Lex Loci Report, 1840 focused on codification of laws related to contract, crimes, evidences, procedures, but it suggested to keep personal laws of both Hindus and Muslims away from such reforms. Cases that involved people of same castes were governed by the personal laws and were applied by local courts or Panchayats, but the exceptional cases that didn’t involve matters of marriage, inheritance, succession or religious ceremonies, were handled by the state, and laws applied same on everyone regardless of religion. Due to constant pressurization by Upper Caste Hindus and Muslims, Uniform Civil Code under Britishers failed to be established. First Prime Minster of India, Pt. Jawaharlal Nehru favoured this concept and therefore, a lesser version of this bill was passed by the Parliament in 1956, in the form of four different acts, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act. It was decided to add the concept of Uniform Civil Code in Article 44 under the Directive Principles of State Policy of the Constitution in Part IV. Afterwards, in Shah Bano case, there were numerous debates regarding the importance of Uniform Civil Code over Muslim Laws by radical Muslim leaders.
3. Current Scenario of UCC
There have been many debates regarding implementation of a Uniform Civil Code in respect to the secular structure of our country and fundamental rights including Right to Freedom of Religion (Article 25- 28 of Indian Constitution). Besides this the religious, cultural and geographical diversity of India makes it difficult to be applied. Adding to this, the continuous protests by some Hindus and Muslims opposing it and giving more preference to Hindu Laws and Sharia Laws respectively made the situations worse. Bharatiya Janta Party (BJP) was the only political party after independence that assured its drafting, as a part of its election manifesto. The Delhi High Court also heard plea regarding drafting of Uniform Civil Code and supported its application in India.
Presently, Goa is the only state in India that has applied it in the form of Goa Civil Code (also known as Goa Family Law).
4. Pros and Cons of UCC
The concept of UCC is necessary in order to promote national unity and solidarity. India is a country with a number of laws based on religion, for example, Hindu Code Bills (1955), Shariat law, etc. and such laws cause discrimination and communalism in both religious and sexual aspects. Uniform Civil Court will help in the upliftment of women by providing them equal rights in terms of marriage, divorce, inheritance, adoption, etc. Besides this it will help in the reduction of complexities and confusion, and will provide consistency in personal issues like marriage, property, inheritance, etc. Differences in laws of various religions contradict with Article 14 of the Indian Constitution, i.e. Right to Equality. It can also be said that personal laws, in the name of religion provide undue advantage to men. For example, allowing polygamy and triple talaq under Muslim Law. In Hindu Minority and Guardianship Act, men are treated as natural guardians and are given more preference. It will delink law from religion which is a very important aim to be achieved in a secular and socialist pattern of society that India is. It also fulfills constitutional article that is Article 44 of Directive Principles of State Policy.
In spite of aiming at equal right for all the citizens, the Uniform Civil Code is not accepted by many groups of people. It contradicts Article 25, i.e. Right to Freedom of Religion of Indian Constitution, Article 26(b) that upholds the right of each religious denomination or any section thereof to manage its own affairs in matters of religion and Article 29 that provides the right to conserve distinctive culture. These rights clearly oppose the equality before law enshrined under Article 14 and 15 of Indian Constitution. Besides this, an individual’s freedom of religion under Article 25 is subject to ‘public .order, health and morality’. This will take away the rights of people exercising their religion however want.
India, since beginning has been in a conflict for laws and legislation due to its diverse nature in socio- geographical structure. No government has focused on a civil code applicable on all. For the first time, the Bharatiya Janta Party, in its election manifesto (also called as Sankalp Patra), that was released on 8th April 2019 before Lok Sabha elections took an step towards drafting of Uniform Civil court. They promised to draft it on the ground of Article 44 of Indian Constitution and providing equal rights to women. Before its drafting, the government should assure the minorities to safeguard their traditions. Everyone should be made aware that it is just an upgraded version of providing both gender as well as human justice. A proper balance must be made between both protection of fundamental rights and right to freedom of religion, keeping in mind that it does not hurt the sentiments of a particular community, religion, caste or any minority group in India.