UNIFORM CIVIL CODE : A DREAM OR REALITY

INTRODUCTION

The Uniform Civil Code (UCC) calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption. Uniform Civil Code  is a proposal in India to formulate and implement secular personal laws of citizens which apply to all citizens equally regardless of their religion. Currently, personal laws of various communities are governed by their religious scriptures. The UCC is prevalent in France, the United Kingdom, the United States, and Australia.

UCC is required to ensure that each citizen gets equal treatment before the law with regard to his/her personal laws. The existing personal laws are also not solemn, they need to be relooked also as the laws in themselves lack uniformity. A Uniform Civil Code means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly. They cover areas like- Marriage, divorce, maintenance, inheritance, adoption and succession of the property. The Directive Principles of State Policies (DPSP) in the Indian Constitution under Article 44 states that “The State shall endeavor to secure for citizens a uniform civil code throughout the territory of India.” Pursuant to this provision, the task of enforcing a UCC in the country was dropped in the bucket of the legislature by the Constitution makers. Being a DPSP, Article 44 is not enforceable in courts alike the fundamental rights. The emergence of UCC strives to bring equality as well as simplicity of laws in our diverse society. Thus, UCC is not merely an idea but it is the practical application of our constitution.

CONSTITUTIONAL PROVISION WITH REGARD TO UNIFORM CIVIL CODE

Article 44 in The Constitution Of India 1949

 Uniform civil code for the citizens The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India . 

Directive Principles of State Policy Article 

44 : The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.

In the process of making of Indian Constitution the, matter of Uniform Civil Code was highly debated  

The Constituent Assembly took up Draft Article 35 for debate on 23th November 1948. As the text of the Draft Article suggests, it directed the State to bring about a uniform civil code across India.

The debate around the Draft Article triggered conflict. Most of the opposition to the Draft Article came from Muslim members who moved amendments to keep personal laws out of Draft Article’ scope and introduce a proviso that operationalised the Draft Article only with the prior assent of the community.

The arguments mobilised to attack the Draft Article included: first, that uniform civil code violated freedom of religion; second, the Draft Article would create disharmony within the Muslim community and third; it was wrong to interfere with personal law without the approval of religious communities.

The Draft Article did find support. Members argued that the UCC was important to uphold the unity of the country and the Constitution’s secular credentials. One member reminded Muslims members that this was not a provision that would affect the Muslim community alone – even the Hindu community had to deal with it. It was further added that women’s rights could never be secured without a UCC. Also, the argument that UCC would violate religious freedom under the Constitution was rejected – the Constitution gave space for social reform legislation. 

At the end of the debate, it was clarified that there was nothing new about the UCC: there was already a common civil code in India. The only difference with the new UCC was that it would cover marriage and inheritance – which were not under the scope of the existing code. It was also pointed out that the UCC was a Directive Principle, the State was not obliged to bring the provision into effect immediately and there was space for the consent of communities to be obtained. Thus, from this debate we can say that there was no consensus in constituent assembly iver UCC so it became a dream for Indians to cherish it . 

CASE LAWS RELATED TO UNIFORM CIVIL CODE

The Supreme Court for the first time directed the Parliament to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum , popularly known as the Shah Bano case.

In this case, Shah Bano claimed for maintenance from her husband under Section 125 of the Code of Criminal Procedure after she was given triple talaq by him.

However, government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of criminal Procedure.

The Supreme Court in Shayara Bano case (2017) had declared the practice of Triple Talaq (talaq-e-bidat) as unconstitutional.

In Sarla Mudgal vs. Union of India Case, the Supreme Court reiterates the need for Uniform Civil Code in our diverse society. 

This is the second instance in which the Supreme Court again directed the government under Article 44. In this case Sarla Mudgal v Union of India, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam can solemnize the second marriage. The Supreme Court held that adopting Islam for a second marriage is an abuse of Personal laws. Further said that Hindu marriage can be dissolved under Hindu Marriage Act, 1955 i.e. mere by converting itself into Islam and marry again does not dissolve the marriage under Hindu Marriage Law and thus will be an offense under Section 494[5] of the Indian Penal Code. 

Goa is currently the only state to have UCC. In a 2019 verdict, the Supreme Court had also described it as a “shining example” of UCC, observing that the founders of the Constitution had “hoped and expected” a Uniform Civil Code for India but there has been no attempt at framing one. 

CONCLUSION

The objective underlying a uniform civil code is to enhance national integration by eliminating contradictions based on religious ideologies. All communities in India would then stand on a common platform on civil matters like marriage and divorce, which are currently governed by diverse personal laws. The section of the nation against the implementation of UCC contends that in ideal times, in an ideal State, a UCC would be an ideal safeguard of citizens’ rights. But India has moved much further from ideal than when the Constitution was written 50 years ago. Thus, the need of the hour is to adopt the concept of uniform civil code both in letter and in spirit. 

REFERENCE

  1. http://www.indiakanoon.com
  2. www constitutionofindia.net
  3. http://www.jagranjosh.com

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