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The Big Picture – Uniform Civil Code: Where does one begin?

  • July 18, 2016
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Uniform Civil Code: Where does one begin?

 

Right from the time the Indian Constitution was in the making, the debate of existence of Uniform Civil Code (UCC) has been raised continuously. The Constitution makers decided that the time then was not right to go ahead to try and formulate a common code and left it for posterity with a Directive Principle that India should strive to have one.

Why UCC in news?

  • It is 66 years since enactment of Constitution and it is still debated about the pros and cons of adopting a common code. However, there is a difference now.
  • The NDA government has formally asked the Law Commission to look into the issue and present a report. This is the first time a government has asked the commission, which has a crucial advisory role on legal reform, to look into the politically controversial issue of a uniform civil code.
  • Even if the commission starts preparing the consultations, the issue has not surprisingly assumed, political colours. Though, the motive behind the move is being questioned by opposition parties and also a section of minority leaders are expressing their concerns.
  • All these concerns and objections have to be addressed though wider debates and discussions and find common ground for concensus.

Background

  • During colonial era, the British applied the common criminal code for all
  • But they allowed religious laws to be applied in court in case of dealing with personal disputes between people of the same religion.
  • Shariat law, 1937 was passed to govern the personal matters of all Indian Muslims by Islamic laws
  • The Constituent Assembly argued for a common personal law for marriage, divorce, inheritance and adoption, while others believed that this was a goal to be achieved in stages.
  • The Directive Principle (Art 44)—“shall endeavour to secure for citizens a uniform civil code”—was a compromise since the time was not right.

What is Uniform Civil Code?

Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set of laws governing every citizen. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.

Is UCC brought earlier?

The government of India has referred the issue to Law Commission. It is a routine matter as Law Commission exists for that. The difference is that the Law Commission has not been asked to draft a civil code nor it is its job. The wordings are ‘examine the issue and give a report’.

Until now, there has been no report on UCC by Law Commission. It has not examined the issue at all. Justice Lakshmanan had submitted two reports and they do not examine the UCC. One is of civil marriages and other is how to make compulsory registration of marriages.

From 1951 till now, the Law Commission has submitted 262 reports. Out of it, the Law Commission has 24 reports on whose basis it can initiate the examining of UCC formation. The reports are on personal laws, family laws etc.

Concept of UCC

Whenever this topic is taken up, there is a certain amount of discomfort observed within Muslims. There is a feeling that it is aimed at them. The reason for such discomfort is that there is no clear picture of what UCC will be like. For 66 years it is in constitution but no government has tried to give a draft of UCC and merely held talks in air. There even exists different views on Article 44.

There is nothing called as ‘common civil code’. The article 44 speaks of ‘uniform’ and not ‘common’ civil code. It does not ask Parliament or State to enact it straight away. The article states that ‘the state shall endeavour to secure…’ which doesn’t mean having one single law and replacing all personal laws.

Some contradictions:

  • In 1954, a General Law of Marriages was already enacted, yet there was a separate Hindu Marriage Act in 1955.
  • Similarly, there was a Guardian and Wards Act already enacted in 1890 which was applicable to everybody, yet Hindu Minority and Guardianship Act was enacted in 1956.
  • There existed Indian Succession Act, 1925 and yet a Hindu Succession Act was enacted in 1956.

This shows that uniformity is needed to avoid contradictions. The idea is that there should be uniformity in the family laws enacted now onwards. However, such practice has been observed since 1954, where a many laws have been enacted that apply to every community.

  • The Dowry Prohibition Act,
  • The Special Marriage Act
  • Domestic Violence Act
  • Maintenance of Parents and Senior Citizens Act,
  • Child Marriage Prohibition Act.

They apply to every community and every individual irrespective of the religion or personal law.

Difference between UCC and reform of personal laws

There is some confusion about concept of UCC. Personal law reform and UCC are two different things. One is about reforming the existing laws and other is subsuming all personal laws.

Hindu law has been reformed, amended drastically in 1955-56. But not Muslim law which is waiting for amendment of Muslim personal law.

It has been silently observed that successive governments had been giving option to the Muslims either to bear with misinterpreted and misused caricatured personal law or accept UCC. That is why, UCC is observed with an eye of suspicion.

A general perception in communities is that UCC is a euphemism for Hindu laws enacted in 1955-56. To dispel that fear, there is a need of draft.

For instance, Triple talaq is un-Islamic and court can apply art 14 (right to live with equality) and art 21 (right to live with dignity). It is un-Islamic because Muslim scholars have interpreted Quran in surah 65 verse 1 which requires two waiting period of three months each before the divorce is valid under Muslim law.

Why UCC needed? – One view

The Constitution makers had a vision to enact UCC in future to have a same set of civil laws governing all irrespective of religion. The present government has brought forward the issue as a part of its fulfilment of manifesto of having a Uniform Civil Code. The need is for a larger debate, where even issues which had been previously eluded from public debates, are carried out. For instance, human right issues, gender equality issues etc.

The UCC is not with regard to religious practices. It has no discussion about harming any religious, community or minority practices as such. It is talking about segregation between aspects like marriage, divorce, inheritance which are in domain of civil laws. Ultimately when India has to adhere to secular credential of constitution and nation, there should be a uniform civil code just like a uniform criminal code where human rights, women rights are protected and there is uniformity in implementing day-to-day affairs.

There are certain issues which require attention when a certain group called Bhartiya Muslim Mahila Andolan says that there is need of reform in marriage and divorce of personal law which is supported by more than 90% Muslim women.

It can also mean that when talked about UCC, it is talking about problems in minority communities.

  1. Triple Talaq: the infamous provision which allows a Muslim man to divorce her wife by pronouncing talaq three times.
  2. Polygamy: According to the 1961 census (the last census to record such data), polygamy was actually less prevalent among Indian Muslims (5.7%) than among several other religious groups (Adivasis-15.25%, Buddhists-7.9%, and Hindus-5.8%).
  3. Christian divorce: Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others.

Is UCC required? – Another view

UCC may not be even required because the constitution of India doesn’t permit discrimination between man and woman and if there is any discrimination on any basis, it will be rectified by the courts. 93% of Muslim nations have held triple talaq as illegal. India is signatory to Convention on the Elimination of all forms of Discrimination Against Women. This makes India accountable to its implementation. The SC has taken up the triple talaq case and several Muslim organisations have also gone to court which at some point of time will translate into a befitting decision.

When Hindu code bill came, many customs were disregarded. There were protests and agitations, but ultimately it was implemented.

If there exists a law which is not in conformity with constitution, the constitution will prevail. Art 14 and 19 can’t be ignored. Whether there is UCC or not, the constitution is sufficient and competent to protect minorities, especially Muslim women in India. Another law is not needed.

Basis of UCC enactment

It is a very interesting intervention as one view expresses that whole debate is essentially meant to focus on triple talaq and thereby politically target the Muslim community. The same stand was taken during NDA 1.

Degree of implementation of various DPSP provisions is visible. A DPSP bans cow slaughter and another calls for implementation of UCC. But contradictions in their implementation is visible. Thus, there is a need to address the personal law reforms of various sections of society like Christians, Muslims, Dalits etc.

Such discussions at platform like of Law Commission assure holistic dimension embracement and consider topics like equality of religion, gender and other issues to be mandated.

Challenges to UCC implementation

UCC is replacement of all personal laws, including minority communities. This may violate, if not taken care of, certain fundamental rights like Art 25, 26 and 29. The triple talaq is not the only issue. In shahabano case, the Muslim law was challenged for first time. Other examples include

  1. The Muslim community believes that the succession, the inheritance is recorded in Quran. If you change that, it means you are changing Quranic injunction. Whether a Quranic injunction can be changed by replaced law is the issue.
  2. Hindus were against granting equal property rights to women, fearing the concept of a joint family might crumble because of it. Thus, women have less share in property inheritance or share as per Hindu laws. A common inheritance law may pose challenges in acceptance in heavily loaded patriarchal society.
  3. Muslims do not have any adoption laws as there is no provision in Islamic law for adoption. If a future law makes adoption permissible and valid, how would it conflict with personal laws of religion?
  4. Practices such as divorce were prohibited by Hinduism and that for a Hindu the institution of marriage is indissoluble.

The issue is whether there should be any law which should be applied to all uniformly in place of their personal law which may arise from religion, custom or practices. Thus, it is important that the reform is not only for the personal law but a debate is required for more prominence of secular thread of country.

Is the time ripe for UCC?

For almost 70 years, the country has managed without a common civil code. Is it needed now? There are arguments on both sides which shows our secular and republican nature and that a common law for all citizens is needed. It can promote some kind of national integration. The other side is to maintain unity in diversity. The country is inhabited by people of all colour, race, religion and cultures and languages. Thus, there is a view point that a particular religious law, for example Shariat law which springs from Quran and Muslims believe in Quran above everything. Shariat law cannot be changed by any constitution. So, that view point has to be accommodated by some kind of consensus. And unless the consensus is reached, it may not lead to national integration. Thus, it is a time for caution and imposing it will not serve the purpose.

All personal laws-Christian, Muslim, Hindu need reforms. They are all legal concepts. But there is a political side to it wherein political influence is imposed which makes a rational debate difficult. Reform in religion is the crying need and has been for centuries. The reforms sine quo non- modernising religion, making it tenable in future.

Two aspect

  1. Reform of religion needed and demand should come from people.
  2. As a government feels, there should be a larger debate on UCC to decide if it should be there or not. It has to perform the advisory role.

However, it needs to be seen if such debates can be done without polarising the country.

No particular time may be ripe for India to absorb a Uniform Civil Code in its entirety. It will have to be the result of gradual change that Indian society absorbs while interpreting in different ways its multicultural diversity. All communities in this country will be willing to contemplate a change gradually rather than being forced to do so abruptly.

Connecting the dots

  1. Critically evaluate the need of Uniform Civil Code in India.
  2. Uniform Civil Code may promote homogeneity which may be harmful for heterogeneous country like India. Do you agree? Substantiate.

Key words:

Personal laws: personal laws is what one confronts in personal lives from birth to death, viz. laws of marriage, maintenance, adoption, custody, guardianship of children and succession.

Family laws:

Shahabano case: stirred up debate in 1985 about Muslim personal law and need for UCC. Shahbano was divorced and was given maintenance by ex-husband during the period of iddat only (three-month period after divorce in which she cannot remarry). The case went upto SC which granted her maintenance under sec 125 of CrPC which is applicable to all equally, irrespective of religion. This, was a landmark judgment where a personal law was overridden by constitutional arrangement.

Hindu code bill: a set of common laws governing personal matters for all Hindus. It was received with much furore and opposition. Later it was split into the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority, and Guardianship Act, and the Hindu Adoptions and Maintenance Act.

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