Introduction – Article 44 of the Indian Constitution can be referred for understanding the idea of the Uniform Civil Code (UCC). The civil laws of India, unlike the criminal laws, differed from community to community. These community personal laws are challenged many times before the Indian judiciary because they are traditional and unequal laws, especially gender-biased laws. When these laws are challenged then the demand of the Uniform Civil Code arises that can be applied to all the citizens of India, irrespective of religion. Such a law can be made by taking in view the changing scenario of the society and can match the needs of the emerging society. This is an issue of controversy and debate whether it should be implemented in the country or not? And whether it can be made applicable uniformly to a diverse population or not? What are the challenges that create hindrance in its implementation? These are the questions we will discuss in the article further.
Meaning – Article 44 of the Indian Constitution provides the Directive Principle of State Policy of Uniform Civil Code. It says that the State should take steps to implement a uniform civil code that would apply to every citizen of India.However, Article 44 does not provide for the definition of “uniform civil code”. The ‘uniform civil code’ can be defined as a set of laws governing the matter of the personal law related to marriage and property of every citizen of India, irrespective of their religion. It is a secular code that is not governed by any specific religious beliefs. It tends to separate personal laws from religion and to secure national integrity and unity of the nation.
Historical Background :
The historical background of the Uniform Civil Code in India lies in the British administration over India. They gradually took control of the whole of India. Before that different rulers used to rule different parts of the Indian territory. Mughals, however, gained control over a large part of India but uniform laws were never made applicable to rule the entire country. A brief outline of it’s historical background :
1853: Second Law Commission Report
The report focused on uniformity of the criminal law and not the civil law in India. The British government claimed to stay out of the matters related to the personal laws of the nation as the British government focused on economic exploitation of the nation rather than any form of interference in the religious matters
1858: Queen Victoria’s Proclamation
In the year 1858, the power shifted from the East India Company to the Crown, during the period the Indian subjects were given a word by the queen that there would be no interference in the personal laws of the people of the nation. After the revolt in 1858 (sepoy mutiny) the Britishers realised the importance and the sensitivity of religion in the India, leading to maintaining their focus on the wealth and maximum benefits from the nation rather than showcasing any interference into religious matters.
Events after the Independence
BN Rao committee came up after the continuous debates over the various Hindu Laws such as Hindu Widow Marriage Act, 1856, Married Women’s Property Act, 1874, Hindu Inheritance Act, 1928 and so on. The committee suggested for codification of Hindu Law which shall not be male centric in nature and focuses on conferring of equal rights to the men and the women, as a result Hindu Code was passed, which did not necessarily codify the entire Hindu Law but to a huge extent.Therefore, this was considered to be the first major step in India towards uniformity in codification of the law. The Uniform Hindu Law was passed with the objective to observe if such a law could be executed and its impact on other religions.The need for Uniform Civil Code was highlighted as a result Uniform Civil Code was made a part of the Directive Principles of State Policy under Article 38 of part IV initially and at present it is observed under Article 44 of part IV of the Indian Constitution, which is not enforceable in the court. BR Ambedkar was a great supporter of the Uniform Civil Code along with other women activists and other prominent leaders of the nation.
Over the years
The bill has been brought into the parliament several times as a private member’s bill but was dismissed a couple of times.
Implementation Of Uniform Civil Code in India :
The idea of a Uniform Civil Code is to apply uniform civil laws to the whole citizens of India irrespective of their religion. The question is whether they can be applied uniformly to the whole of India? For answering this question the case has to be studied on the Goa Civil Code that is the only State with a Uniform Civil Code in India.
Case Study: Goa Uniform Civil Code
Goa is the only Indian State to have a Uniform Civil Code. Goa was once a colony of Portuguese. Portuguese applied the Portuguese Civil Code there. In 1961, Goa became a part of India by the Goa Daman & Diu Administration Act, 1962. The Portuguese Civil Code was authorized by the Parliament in 1867. It was authorized on the condition of necessary amendments that can take place from time to time. It is also known as Goa Family Law is a uniform civil law for the residents of Goa. Some of the main provisions of the Code are as follows:
- Goa Civil Code provides that marriage is a civil contract.
- After marriage, everything owned by the husband and wife before – and after – marriage, becomes common and the spouse is liable to get half of that common belonging in the case of divorce. The Code allows antenuptial agreements in such cases. Such agreements may state a different division of assets in the case of divorce. Such agreements are considered to be irrevocable.
- Equal property rights for both sons and daughters.
- Parents are not entitled to disinherit their children entirely. Half of the property is the minimum requirement that is to be passed on to the children.
The question of whether the Goa Civil Code is uniformly applied can be answered by going through the following facts:
- As per the Codes of Usages and Customs of Gentile Hindus of Goa, Daman and Diu, Hindu men have the right of polygamy under specific conditions.
- As per the Codes of Usages and Customs of Gentile Hindus, divorce in Hindus is permitted only on the condition of adultery by the wife.
- Bigamy is also permitted on the grounds of
- Failure by the first wife in delivering any child till she is twenty-five years of the age, and
- Failure by the first wife in delivering a male child until she is thirty years of age.
- Muslim men cannot perform polygamy if their marriage is registered under the Code.
- Inequality in the adoption and the rights of illegitimate children.
- Catholic Christians can solemnize their marriage in the Church after taking permission at the office of Civil Registrar. But non-Catholics can only register their marriage at the office of Civil Registrar.
The above stated facts about the Code clarifies that it has many such exceptions to itself that makes it not a uniform code in the actual sense. There are exceptions to the practice of monogamy for only Hindus and other communities are not permitted to practice it. The rights of illegitimate children are also unequal as compared to legitimate children. The treatment for the marriages of Catholics and non-Catholics is also different. This clears the fact that it is not applied uniformly to all its citizens. There are many loopholes in this Code.
The idea of uniformity under Article 44
The idea of uniformity enriched under Article 44 of the Indian Constitution does not match the Goa Civil Code. Article 44 provides for the Uniform Civil Code that can be applied to all the citizens of India, irrespective of their religion. The Goa Civil Code is not uniform of ability to all the citizens of India and also its applicability to its citizens. There is a broader intent of Article 44 in implementing uniform civil code to every citizen of India without any communal exceptions.
Challenges in its implementation
Article 25 v. Article 44
The major challenge in the implementation of the Uniform Civil Code is Article 25 of the Indian Constitution. The minorities of the country oppose the implementation of the Uniform Civil Code by taking the defence of Article 25.
Article 25 provides for the Freedom of Religion, which is a Fundamental Right in the Constitution. Under this Article, a person is free to practice and propagate his choice of religion. The religious practices prevalent in the personal laws of communities are continued to be practised. These communities contend that the right to freedom of religion in Article 25 enables them to manage personal laws according to their community’s laws. The introduction of Uniform Civil Code is challenged as a violation of the fundamental rights under Article 25. Article 44 is only a Directive Principle of State Policy which is not enforceable in courts but Article 25 is a Fundamental Right which is enforceable in courts.
However, Article 25 excludes secular activities from its purview. Secular activities are to be dealt with by the State and not the religion. This exception is considered to include personal laws by the supporters of the Uniform Civil Code. It is a key point to notice that matters like divorce, adoption, inheritance are matters of law and not of religion. These matters can be separated by religion for better applicability of constitutional provisions. Law and religion are better to be separated. This is a long going debate. But the need for a Uniform Civil Code cannot be denied.
Insecurities in the minds of minorities
The major challenge in the introduction of the Uniform Civil Code is the existence of insecurities in the minds of the minority population of India. The personal laws of the majority, that is, Hindus, are already codified and separated from religion. The minority is afraid of the imposition of the majoritarian personal laws on them. The belief in UCC is the imposition of majority rule on minorities. This insecurity of minorities is clear in many instances. Talking about the instance of criminalizing triple talaq raised a huge uproar from the Muslim community.
The intention and objective of the Uniform Civil Code are far away from this view of the minority. It is not imposing majority rule on the minority but instead imposing a uniform and secular code of civil laws preserving the constitutional provisions on every citizen of India, irrespective of religion.
ADVANTAGES AND DISADVANTAGES IN CURRENT INDIAN SCENARIO :
As each coin is having two sides, UCC is nowhere an exception. When we compare the same, advantages of UCC will ultimately overshadow its disadvantages. The Pros of UCC will be:
1. It will provide equality of status to all its citizens
To seek status of ‘Welfare State’, the state should have uniform civil and personal laws for all its citizens irrespective of their religion, place of birth, caste, gender etc. To keep country under practical application of ‘Secular State without State Religion’, UCC is must.
2. It will promote gender equality and supersede on the Personal Laws
Directly or indirectly, almost all religions are discriminatory towards female folk through their personal laws. Since the time immemorial, male are granted upper preferential status in matters of succession and inheritance compared to female counterparts. In India, UCC is a ray of hope which will bring both at par.
3. It will depict the will and aspirations of youth
Indian Civilization, being one of the oldest civilizations, is consisting with more than half of its population below the age group of 25 years. They require a neutral identity. To keep the country unite, social attitudes and aspirations of youth must be shaped with universal principles of equality, humanity, and modernity. UCC with its implementation, surely provide an opportunity for the youth to use their potential to the fullest extend for the nation building.
4. It will support the unity and integrity of nation
UCC will suffice its very purpose for non-politicization of diverse issues like- enjoyment of special privileges or concessions by particular community through their personal laws. The notion of equality in all its forms will overwhelm all the anti-national and anti-social elements with the implementation of UCC.
Even though, UCC is having various advantages, still some cons cannot be ignored and those are:
1. Diversities in India: A major hurdle
India is a country with unity in diversity. Various habitual, cultural and traditional diversities in India will make it troublesome for the UCC for its implementation. It is practically very difficult to cope up with traditional practices at one hand and UCC at the other. The best example is- Marriage. Till a particular community is ready for the change from its within, it will not digest the implementation of UCC.
2. UCC is an encroachment on religious freedom: A fearful perception
Still, various communities, minorities in particular are pretending that UCC is nothing but an encroachment on their Personal laws which they were practicing from ages and believe that UCC will curtail their religious freedom. Majority will influence the government and bend the laws in their favor is the general fear of the minority groups. It is deeply rooted in them. To have lenient approach towards introduction and implementation of UCC through minority groups in particular, will require some time period.
Conclusion For wellbeing of its subjects, government requires to take some stringent steps beneficial not only for the present but for upcoming generations too. A law needs to combat with these situations; otherwise personal interests may supersede collective interests. Implementation of Uniform Civil Code is a need of the day. To foster principles of equality which will balance genders as well as religious institutions is the ultimate aim and is sought to be achieved through UCC. Unless and until these institutions are modernized, democratized and uplifted, there cannot be change of perception towards UCC. To uplift the status and dignity of women, to promote communal harmony and to strengthen the Secularism, UCC is must. A change cannot be readily accepted by traditional societies. If UCC be made compulsory, it is very hard to achieve the very object. Hence, in the beginning, it must be made optional. As the time surpasses, whole society will accept it exclusively. UCC can be a reality for the country like India. It requires a Will which unfortunately lacks in our polity.
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