Uniform Civil Code is the ongoing point of debate within the Indian mandate to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. In India, the purpose of the Uniform Civil code is to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen.
The uniform civil code became a flashpoint in Indian politics in 1985 during the Shah Bano case. The Supreme Court had held that Bano, a Muslim woman, should get alimony from her ex-spouse. In the context of that judgment, the court had said uniform personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering in this domestic.
The demand for a uniform civil code was first put forward by women activists at the beginning of the twentieth century, with the objective of women’s rights, equality and secularism. Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. In 1956, the Indian Parliament passed Hindu Code Bill amidst significant opposition. Though demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters, and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition.
The political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far as litigations concerning Hindus were concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mahomedans. The 1772Regulations followed by the Regulations of 1781 where under it was prescribed that either community was to be governed by its “personal” law in matters relating to inheritance, marriage, religious usage, and institutions.
Constituent assembly debates
Mr. Mohamad Ismail Sahib moved article 35 which read as follows:
“Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.”
“Now, why do people want a uniform civil code, as in article 35? Their idea evidently is to secure harmony through uniformity. But I maintain that for that purpose it is not necessary to regiment the civil law of the people including the personal law. Such regimentation will bring discontent and harmony will be affected. But if people are allowed to follow their own personal law there will be no discontent or dissatisfaction. Every section of the people, being free to follow its own personal law will not really come in conflict with others”
Mr. Naziruddin Ahmad submitted that
“I submit, Sir, there are certain aspects of the Civil Procedure Code which have already interfered with our personal laws and very rightly so. But during the 175 years of British rule, they did not interfere with certain fundamental personal laws. They have enacted the Registration Act, the Limitation Act, the Civil Procedure Code, the Criminal Procedure Code, the Penal Code, the Evidence Act, the Transfer of Property Act, the Sarda Act, and various other Acts. They have been imposed gradually as occasion arose and they were intended to make the laws uniform although they clash with the personal laws of a particular community. But take the case of marriage practice and the laws of inheritance. They have never interfered with them. It will be difficult at this stage of our society to ask the people to give up their ideas of marriage, which are associated with religious institutions in many communities. I submit that the interference with these matters should be gradual and must progress with the advance of time. I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come. We believe that the power that has been given to the State to make the Civil Code uniform is in advance of the time.”
Important case laws on Uniform civil code
A Constitution Bench of this Court speaking through ChiefJustice Y.V. Chandrachud in Mohd. Ahmed Khan vs. Shah BanoBegum AIR 1985 SC 945 held as under:
“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity in framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws that have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. 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.
State of Bombay v. Narasu Appa Mali. in this case while deciding the validity of the Hindu bigamous marriage act 1946 the court comes to the conclusion that the framers of the Indian constitution did not wish to challenge the personal laws of a community by fundamental right.
Later on in the case of Ahmadabad Women Action Group v. Union of India, in this case, a writ petition was challenged in the personal Muslim laws which allow polygamy as offending articles 14 and 15 of the Indian constitution but refused as a matter of state policy which is outside the court’s domination Kerala high court in P.E. Mathew v. Union of India in this case the high court said that Christian personal laws are outside the scope of fundamental rights.
In the case of Sarla Mudgal v. Union of India, in this case, Supreme Court directed the guidelines of article 44 of the Indian constitution. The question was raised whether a Hindu husband married according to Hindu law and changed his religion according to Islam that person can do second marriage. The court held that a marriage performed according to Hindu law shall be dissolved according to Hindu law on certain grounds specified under the Hindu marriage act 1955. But the conversion of religion in Islam and marrying itself dissolved the Hindu marriage act and second marriage after converting religion is against the Islamic law under section 494 of the Indian penal code.
The Supreme court remind the government of India that the obligation to enact a uniform civil code came in July 2003 when a Christian priest go to the doors of court and challenge the validity of the constitution of section 118 of the Indian succession act. The priest from Kerala, John Vallamatton filed a writ petition in the Supreme Court in the year of 1997 saying that section 118 caused discrimination against Christian and it imposed unreasonable restrictions on the account of donation of property for the religious purpose. The bench compromised of justice V.N.Khare, justice S.B.Sinha, and A.R.Lakshamanan and said that section 118 it to be unconstitutional.
In the case of S.R.Bommai v. Union of India as per justice Jeevan Reddy, it was held that religion is a matter of individual communities people’s faith and to follow their own customs a law cannot mix it with a uniform law and secular activities can be regulated by them with their own personal law
Uniform civil code a balancing act
Article 26 of the Indian constitution lays down that every religious denomination or any section thereof shall have the right
a to establish and maintain institutions for religious and charitable purposes;
b to manage its own affairs in matters of religion;
c to own and acquire movable and immovable property; and
d to administer such property in accordance with law
In a 1982 verdict, the Supreme Court had defined religious denomination as “a religious sect or body having common faith and organization and designated by a distinctive name”. Simply put, a religious denomination is a sub-group within a larger religious organization that follows a common faith, practice, has an identity, and traditions. Article 26 of the Constitution confers certain fundamental rights upon the citizens and particularly, on a ‘religious denomination’ which can neither be taken away nor abridged. Taking into consideration the right to manage own affairs as a matter of right, the impact that a Uniform civil code and have required questioning as to what extent will change be brought to the customs of certain religious denominations and can one umbrella code without violating customs various denomination create a uniform code?
It has been held in various judgments of the supreme court that it can concretize only when the social climate is properly built up by the elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.
Any reform requires a conscious understanding of the problem at hand by the community that has to undergo that reformation. Indian society has a diversified view when it comes to social issues, it thus becomes difficult to bring reformation without avoiding conflict. When there is a conflicting view within the community the judgments of the highest court will not practically serve any purpose.
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