Building a Unified Nation: The Urgency of Implementing a Uniform Civil Code
The articles give an analysis of the concept
and issues of Uniform Civil Code also the view of honorable Supreme Court and
present government. It further discusses the disquietness of citizen of India.
Introduction
UCC stands for Uniform Civil Code, (hereafter UCC) or we can say that Samana Nagarika Samhita is a proposal to formulate all the laws, which are not uniform. Uniformity means that all the citizen were govern by the same law. UCC especially formulate and implement the personal laws of citizens equally regardless of their caste religion gender and sexual orientation.
The name Samana Nagarika Samhita itself clearly tells the object of the code, to implement and regulate the personal law of all the religion irrespective of Hinduism, Jainism, Buddhism, Muslims, Christianity and others religion that is present in India.
Before proceed further we can broadly divide the UCC into two parts:
The concept of the UCC evolved from the article 44 of Indian Constitution that is a directive principle of the state. Article.44 of the constitution states that � the state shall endeavour to secure for the citizen a uniform civil code throughout the territory of India.
Objective of the UCC:
The UCC has an objective to implement a single uniform law and all the personal laws be governed by a uniform law which has never happened so far. UCC helps the individual's right of men and women to treat equally. The government did not snatch the religious rights of any communities. UCC wants that the right of an individual were not suppressed by the rights of personal law, also it claims that after implementation of the UCC, this law will flourish the constitutional provision and doesn't affects the traditional practices of a community.
This article requires the State to take steps for establishing a uniform civil code throughout the territory of India. Two objections were put forward in the Constituent Assembly against the making of a uniform civil code applying throughout India: firstly, it would infringe the fundamental right to freedom of religion mentioned in Article 25 and secondly, it would be a tyranny to the minority.
The first objection is misconceived. The directive contained in Article 44 in no way infringes the freedom of religion guaranteed by Article 25. Clause (2) of that article specifically saves secular activities associated with religious practices from the guarantee of religious freedom contained in clause (1) of Article 25." As regards the second objection, the following speech of Sri K.M. Munshi,
Member of the Drafting Committee, in the Constituent Assembly may well be quoted: A further argument has been advanced that the enactment of a civil code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries has the personal law of each minority been recognised as so sacrosanct as to prevent the enactment of a Civil Code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights. However, I go further. When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied.
They then followed certain Hindu customs; for generations since they became converts they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it.
Where were the rights of minorities then? When you want to consolidate a community, you have to take into consideration the benefit, which may accrue, to the whole community and not to the customs of a part of it. It is not therefore correct to say that such an act is tyranny of the majority. If you will look at the countries in Europe, which have a Civil Code, everyone who goes there from any part of the world and every minority, has to submit to the Civil Code. It is not felt to be tyrannical to the minority.
The point however is this, whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country as may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance of succession. What do these things have to do with religion I really fail to understand...?
Now look at the disadvantages that you will perpetuate if there is no Civil Code. Take for instance the Hindus. We have the law of Mayukha applying in some parts of India; we have Mitakshara in others; and we have the law of Dayabhaga in Bengal. In this way, even the Hindus themselves have separate laws and most of our Provinces and States have started making separate Hindu law for themselves. Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country? It is therefore not merely a question for minorities but it also affects the majority.
I know there are many among Hindus who do not like a uniform Civil Code. They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex.
Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India....
Religion must be restricted to spheres, which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country.
We think we have national unity. But there are many factors-and important factors-which still offer serious dangers to our national consolidation, and it is very necessary that the whole of our life, so far as it is restricted to secular spheres, must be unified in such a way that as early as possible, we may be able to say, 'Well, we are not merely a nation because we say so, but also in effect, by the way we live, by our personal law, we are a strong and consolidated nation. From that point of view alone, I submit, the opposition is not, if I may say so, very well advised. I hope our friends will not feel that this is an attempt to exercise tyranny over a minority; it is much more tyrannous to the majority."
The foregoing observations may be having some truth but no steps were taken until recently to provide a Uniform Civil Code. Only law of marriage, succession, guardianship and maintenance among Hindus were given some uniformity in mid-1950s. On the contrary, reliance on this article by the Supreme Court in upholding the right of maintenance of a Muslim divorcee under Section.125 Criminal Procedure Code, which applies to everyone irrespective of religion or community, boomeranged resulting in enactment of separate law of maintenance for Muslim female divorcee.
Later the court again reminded the State of its obligation under this article and issued directions to it to take appropriate steps for its implementation and inform the court of such steps." But again sometime later it retraced its steps and stated that it did not issue any directions for the codification of a common civil code." On the specific issue of outlawing Triple Talaq Muslim Law, a petition is, however, pending in the Supreme Court at the time of this revision."
While the issue on Uniform Civil Code seemed to have gone into the back- ground, for the first time the Law Commission of India constituted in later part of 2016 issued a questionnaire consisting of 16 questions to the public on the desirability of such Code. While the Bharatiya Janata Party government in office at the Centre is in support of it, others, particularly the minorities are raising questions on its desirability. In the current era of constitutional pluralism even on principled grounds doubts are expressed on the desirability of such a Code."
Contention of citizens of India:
Earlier there were some leading cases in relation with the UCC in which supreme court observed and it can be traced with the case of Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 844, In this case for the very first time a futile attempt was made in the direction of UCC by the judiciary but the government of India ignored this attempt of judiciary very cleverly and by passing the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The next discussion of UCC was in the case of Sarla Mudgal v. Union of India air 1951 SC 1531, the honorable court advocated the necessity of the UCC in the Indian legal System, that will stops Indians from trespassing the personal law of one another. The court further directed the central government through the Secretary of Ministry of Law and Justice, to file an affidavit regarding the steps taken by the government of India towards securing a UCC for the citizen of India.
Development after the case of Sarla Mudgal there was a leading case of Lily Thomas v. Union of India AIR 2000 SC 1650, the supreme held that if after conversion, a Hindu husband performs second marriage then such conversion is fraudulent. That is why, such a marriage would be declared void.
As far as the issue of UCC is concerned, it was observed that applying an UCC would do injustice with the personal laws like sharia, Hindu Marriage Act etc.
The judgement is landmark because it helped to avoid e use of the fundamental right of practicing any religion for the selfish motive of bigamy. The court also remained silent on the UCC and clarify that I never said direct the central government to implement the UCC. The reason behind this judgement is Article.37 of the Indian Constitution states that � the provision in this part (part IV) 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 Honorable Supreme Court of India very well knows that the Directive Principle is not enforceable by any court which itself stated in article.37 of Constitution of India and UCC is given in article.44 of Constitution of India that is part IV of the Indian Constitution.
Conclusion:
Uniform Civil Code is a umbrella term or we can say that a law that unified all the personal law under one law that shall apply to all citizen of India irrespective of one's religious affiliation. It covers personal subjects like marriage, divorce inheritance, adoption and succession. This law does not harm any personal law or restrict any religious practices in the country. The aim is to codify all personal law so that no one can take the advantage of any personal law and get defense in any fraudulent activity.
References:
Introduction
UCC stands for Uniform Civil Code, (hereafter UCC) or we can say that Samana Nagarika Samhita is a proposal to formulate all the laws, which are not uniform. Uniformity means that all the citizen were govern by the same law. UCC especially formulate and implement the personal laws of citizens equally regardless of their caste religion gender and sexual orientation.
The name Samana Nagarika Samhita itself clearly tells the object of the code, to implement and regulate the personal law of all the religion irrespective of Hinduism, Jainism, Buddhism, Muslims, Christianity and others religion that is present in India.
Before proceed further we can broadly divide the UCC into two parts:
- Criminal Law:
In India criminal law is uniform we all know that eg. IPC, CrPC, CPC etc. the entire citizen regulate through it, it imposes the liability on the accused. - Civil Law:
In civil law the duty is imposed on the citizen also citizen regulate by it. E.g. Indian Contract Act, Transfer of Property Act etc.
The concept of the UCC evolved from the article 44 of Indian Constitution that is a directive principle of the state. Article.44 of the constitution states that � the state shall endeavour to secure for the citizen a uniform civil code throughout the territory of India.
Objective of the UCC:
The UCC has an objective to implement a single uniform law and all the personal laws be governed by a uniform law which has never happened so far. UCC helps the individual's right of men and women to treat equally. The government did not snatch the religious rights of any communities. UCC wants that the right of an individual were not suppressed by the rights of personal law, also it claims that after implementation of the UCC, this law will flourish the constitutional provision and doesn't affects the traditional practices of a community.
This article requires the State to take steps for establishing a uniform civil code throughout the territory of India. Two objections were put forward in the Constituent Assembly against the making of a uniform civil code applying throughout India: firstly, it would infringe the fundamental right to freedom of religion mentioned in Article 25 and secondly, it would be a tyranny to the minority.
The first objection is misconceived. The directive contained in Article 44 in no way infringes the freedom of religion guaranteed by Article 25. Clause (2) of that article specifically saves secular activities associated with religious practices from the guarantee of religious freedom contained in clause (1) of Article 25." As regards the second objection, the following speech of Sri K.M. Munshi,
Member of the Drafting Committee, in the Constituent Assembly may well be quoted: A further argument has been advanced that the enactment of a civil code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Muslim countries has the personal law of each minority been recognised as so sacrosanct as to prevent the enactment of a Civil Code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights. However, I go further. When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied.
They then followed certain Hindu customs; for generations since they became converts they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it.
Where were the rights of minorities then? When you want to consolidate a community, you have to take into consideration the benefit, which may accrue, to the whole community and not to the customs of a part of it. It is not therefore correct to say that such an act is tyranny of the majority. If you will look at the countries in Europe, which have a Civil Code, everyone who goes there from any part of the world and every minority, has to submit to the Civil Code. It is not felt to be tyrannical to the minority.
The point however is this, whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country as may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance of succession. What do these things have to do with religion I really fail to understand...?
Now look at the disadvantages that you will perpetuate if there is no Civil Code. Take for instance the Hindus. We have the law of Mayukha applying in some parts of India; we have Mitakshara in others; and we have the law of Dayabhaga in Bengal. In this way, even the Hindus themselves have separate laws and most of our Provinces and States have started making separate Hindu law for themselves. Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country? It is therefore not merely a question for minorities but it also affects the majority.
I know there are many among Hindus who do not like a uniform Civil Code. They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex.
Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India....
Religion must be restricted to spheres, which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country.
We think we have national unity. But there are many factors-and important factors-which still offer serious dangers to our national consolidation, and it is very necessary that the whole of our life, so far as it is restricted to secular spheres, must be unified in such a way that as early as possible, we may be able to say, 'Well, we are not merely a nation because we say so, but also in effect, by the way we live, by our personal law, we are a strong and consolidated nation. From that point of view alone, I submit, the opposition is not, if I may say so, very well advised. I hope our friends will not feel that this is an attempt to exercise tyranny over a minority; it is much more tyrannous to the majority."
The foregoing observations may be having some truth but no steps were taken until recently to provide a Uniform Civil Code. Only law of marriage, succession, guardianship and maintenance among Hindus were given some uniformity in mid-1950s. On the contrary, reliance on this article by the Supreme Court in upholding the right of maintenance of a Muslim divorcee under Section.125 Criminal Procedure Code, which applies to everyone irrespective of religion or community, boomeranged resulting in enactment of separate law of maintenance for Muslim female divorcee.
Later the court again reminded the State of its obligation under this article and issued directions to it to take appropriate steps for its implementation and inform the court of such steps." But again sometime later it retraced its steps and stated that it did not issue any directions for the codification of a common civil code." On the specific issue of outlawing Triple Talaq Muslim Law, a petition is, however, pending in the Supreme Court at the time of this revision."
While the issue on Uniform Civil Code seemed to have gone into the back- ground, for the first time the Law Commission of India constituted in later part of 2016 issued a questionnaire consisting of 16 questions to the public on the desirability of such Code. While the Bharatiya Janata Party government in office at the Centre is in support of it, others, particularly the minorities are raising questions on its desirability. In the current era of constitutional pluralism even on principled grounds doubts are expressed on the desirability of such a Code."
Contention of citizens of India:
- Conflict with personal laws
The simple reason behind the contention of citizen is that it affects the personal laws. A personal law is distinguished from public law and covers the matter of marriage, divorce, maintenance, adoption and inheritance. Muslim groups and other conservative religious groups of Muslims are the sects in defense of sharia law. The contention here is sharia law regulated them and if the UCC came then what about the personal laws and religious ceremonies of him. Not only had the Muslim group also the group of Hindus had the same contention in the regard we cannot say that only such religious group is disagreed.
- Conflict with Article 25 of Indian Constitution
Meanwhile article 25 of Indian Constitution guarantees religious freedom to Indian citizens and allows religious group to maintain their own affairs also article 44 of Indian Constitution expects the Indian state to apply the directive principles and common law for all Indian citizen while formulating national policies. EPR is a new term to you all who read this article so quickly, EPR means Essential Religious Practices this was the cause of disagreement between personal laws and UCC. Is UCC affects a person to do his/her EPR; this was the question in the mind of every citizen who disagreed to the concept of UCC.
Which law prevails if both the laws conflict?
As we always seen that the special laws or personal laws prevails upon ordinary law. If personal laws or special laws prevails then what's the means of implementing the UCC in the country, this question arises also in the mind of law makers the honorable members committee which dealt with the codification of all the personal laws under one roof that is UCC. We all scared a little bit after hearing about the UCC we all have a thought in mind what the reaction of extremist so-called religious groups after implementation of UCC in the country.Law commission contention:
"Initially the 21st Law Commission of India had examined the subject on Uniform Civil Code and solicited the views of all the stakeholders through its appeal along with a questionnaire dated 07.10.2016 and further public appeals/notices dated 19.03.2018, 27.03.2018 and 10.4.2018...The 21st Law Commission has issued the consultation paper on 'Reforms of Family Law' on 31.08.2018," said the Ministry of Law and Justice in a press release.Contention of the present government on the implementation of the UCC?
The contention of the present government (BJP) is to make a common law under which all the personal laws are there. UCC is like an umbrella in which all the personal laws regulate and flourish with ease, there were many reason for implementing the UCC. The prime reason was to make a single law for all the religion.Goa as a role model for the implementation of UCC:
Goa is one and only states in India that follows the UCC but why only in Goa because Goa was separated from India due to colonial rule in erstwhile Portuguese Goa and Damaon, retained a common family law knows as Goa Civil Code till date. If we rank the states according to the conflicts that arose than Goa probably tops this prove that UCC is not evil to the society, citizen and their personal laws.Supreme Court view on UCC:
Our honorable supreme court have a different view on different times in different cases. But in present scenario the supreme courts has quashed all the petition regarding the implementation of UCC in the country and leave the matter upon the parliament and directed parliament to take necessary steps towards this development.Earlier there were some leading cases in relation with the UCC in which supreme court observed and it can be traced with the case of Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 844, In this case for the very first time a futile attempt was made in the direction of UCC by the judiciary but the government of India ignored this attempt of judiciary very cleverly and by passing the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The next discussion of UCC was in the case of Sarla Mudgal v. Union of India air 1951 SC 1531, the honorable court advocated the necessity of the UCC in the Indian legal System, that will stops Indians from trespassing the personal law of one another. The court further directed the central government through the Secretary of Ministry of Law and Justice, to file an affidavit regarding the steps taken by the government of India towards securing a UCC for the citizen of India.
Development after the case of Sarla Mudgal there was a leading case of Lily Thomas v. Union of India AIR 2000 SC 1650, the supreme held that if after conversion, a Hindu husband performs second marriage then such conversion is fraudulent. That is why, such a marriage would be declared void.
As far as the issue of UCC is concerned, it was observed that applying an UCC would do injustice with the personal laws like sharia, Hindu Marriage Act etc.
The judgement is landmark because it helped to avoid e use of the fundamental right of practicing any religion for the selfish motive of bigamy. The court also remained silent on the UCC and clarify that I never said direct the central government to implement the UCC. The reason behind this judgement is Article.37 of the Indian Constitution states that � the provision in this part (part IV) 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 Honorable Supreme Court of India very well knows that the Directive Principle is not enforceable by any court which itself stated in article.37 of Constitution of India and UCC is given in article.44 of Constitution of India that is part IV of the Indian Constitution.
Conclusion:
Uniform Civil Code is a umbrella term or we can say that a law that unified all the personal law under one law that shall apply to all citizen of India irrespective of one's religious affiliation. It covers personal subjects like marriage, divorce inheritance, adoption and succession. This law does not harm any personal law or restrict any religious practices in the country. The aim is to codify all personal law so that no one can take the advantage of any personal law and get defense in any fraudulent activity.
References:
- V.N.Shukla - Constitution Of India . 13th edition EBC
- D.D.Basu - Introduction to Constitution of India . 24th edition LexisNexis
- M.P., J., 2022. Indian Constitutional Law. 8th edition. LexisNexis
- Bare Act The Constitution of India. LexisNexis
- Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 844
- Sarla Mudgal v. Union of India air 1951 SC 1531
- Lily Thomas v. Union of India AIR 2000 SC 1650
- https://indianexpress.com/article/opinion/columns
- https://hindu.com/news/national/explained-the-uniform-civil-code/article
Award Winning Article Is Written By: Mr.Priyanshu Pandey, A Law Student At Lucknow University, Lucknow, Uttar Pradesh
Authentication No: JL355461976198-6-0723
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