- GS-2: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
Context: Uttarakhand Chief Minister recently set up a committee to prepare a draft Uniform Civil Code (UCC) for the State.
- Assam chief minister recently said the uniform civil code will provide justice and relief to Muslim women.
- Himachal Pradesh chief minister has announced that the state will have its own uniform civil code.
- Goa chief minister held up the Goa Civil Code as the model that other states can emulate.
What are Personal Laws?
- Personal laws regulate marriage, divorce, maintenance, inheritance and succession for Indian citizens. We can see that personal law governs and regulates subjects or areas of a private sphere.
- These laws are largely influenced by religious customs of different communities. This is to say that, the Hindus, have their separate personal laws; as do the Muslims, Christians, Parsis, Jews and others.
- British legal traditions and even those of the Portuguese and the French remain operative in some parts.
- For example: Law relating to marriage and/or divorce has been codified in different enactments applicable to people of different religions. These are
- The Converts’ Marriage Dissolution Act, enacted during 1866
- The Indian Divorce Act, enacted in 1869
- The Indian Christian Marriage Act, enacted during 1872
- The Kazis Act, enacted during 1880
- The Anand Marriage Act, enacted in 1909
- The Indian Succession Act, enacted during 1925
- The Child Marriage Restraint Act, enacted in 1929
- The Parsi Marriage and Divorce Act, enacted in 1936
- The Dissolution of Muslim Marriage Act, enacted during 1939
- The Special Marriage Act, enacted during 1954
- The Hindu Marriage Act, enacted during 1955
- The Foreign Marriage Act, enacted in 1969 and
- The Muslim Women (Protection of Rights on Divorce) Act, enacted in 1986.
- Hindu personal law is codified in four bills: the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. The term ‘Hindu’ also includes Sikhs, Jains and Buddhists for the purpose of these laws.
- A 1939 Act enacted by the British said that Muslims would be governed by their personal Law (ie, the Shariat). The Shariat allows Muslims to follow their rites of passage in accordance with Islamic practices, be it marriage, divorce, children’s custody or inheritance.
- However, the Shariat is not codified, which means that whatever guidelines are spelt out in the Quran and Hadith have not been spelt out in English like in all laws.
- Also, there are more ‘secular’ laws, which disregard religion altogether, such as the Special Marriage Act, under which Inter-religion marriages take place, and the Guardians and Wards Act, which establishes the rights and duties of guardians.
- In the Northeast, there are more than 200 tribes with their own varied customary laws. The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
- The origin of the separate personal dates back to colonial India when the British government submitted its report in 1840 (Lex Loci Report) stressing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.
- The Queen’s 1859 Proclamation- It promised absolute non-interference in religious matters.
- So while criminal laws were codified and became common for the whole country, personal laws continue to be governed by separate codes for different communities.
- Post-Independence, Personal laws were included in the Concurrent List (entry No. 5) meaning that both Parliament and State Legislatures have the power to legislate on the subject.
- However, once a legislative field is occupied by parliamentary legislation, states do not have much freedom to enact laws. Such laws would require Presidential assent under Article 254.
What is Uniform Civil Code?
- A uniform civil code here refers to a single law, applicable to all citizens of India in their personal matters such as marriage, divorce, custody, adoption and inheritance.
- The Uniform Civil Code (UCC) in India proposes 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.
- UCC is based on the premise that there is no connection between religion and law in modern civilization.
- Goa is, at present, the only state in India with a uniform civil code.
- The Portuguese Civil Code of 1867, which continues to be implemented after India annexed the territory in 1961, applies to all Goans, irrespective of their religious or ethnic community.
- It doesn’t matter whether you’re Hindu, Muslim or Christian; if you’re a Goan domicile, the same set of civil laws will apply to you.
What does the Constitution say about UCC?
- Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says the state shall endeavour to secure for citizens a uniform civil code throughout the territory of India
- However, governments since Independence have allowed respective religion-based civil codes to respect the diversity of India.
- The Constitution’s framers used the term “uniform” in Article 44 and not “common”, because “common” means “one and the same in all circumstances”, while “uniform” means “the same in similar conditions”.
- Different people may have different laws, but the law within a particular group should be uniform. Such a classification is permissible even under the right to equality under Article 14.
- “Civil” means matters where personal rights (not public rights) are in question —such as a contract, or sale and purchase of goods/services or properties.
- Even “code” does not necessarily mean one single law in every circumstance. It may mean either one enactment such as Indian Penal Code, or the Hindu Code Bill that includes three different Acts.
- While Article 43 mentions that the “state shall endeavour by suitable legislation”, the phrase “by suitable legislation” is absent in Article 44.
What has been the Judiciary’s view of UCC?
- In order to bring uniformity, the courts have often said in their judgements that the government should move towards a UCC.
- Shah Bano Case, 1985
- Under Muslim personal law, maintenance, after divorce, was to be paid only till the period of iddat. (three lunar months-roughly 90 days ).
- However, Section 125 of CrPC (criminal procedure code) that applied to all citizens, provided for maintenance of the wife for a lifetime or until she is remarried.
- A 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She demanded living allowance whereas husband refused saying that he had fulfilled all his obligations under Islamic law.
- Supreme Court ruled in Shah Bano’s favour and passed the verdict to pay maintenance each month.
- However, the government of the day overturned the judgement by passing the Muslim Women (Protection on Divorce Act), 1986. This law said the maintenance period can only be made liable for the iddat period. The new law said that if a woman wasn’t able to provide for herself, the magistrate had the power to direct the Wakf Board for providing the aggrieved woman means of sustenance and for her dependent children too.
- Sarla Mudgal Case:-
- In this case, the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnise a second marriage.
- The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955.
- Conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code(IPC).
- John Vallamattom Case:-
- In this case, a priest from Kerala, John Vallamattom challenged the Constitutional validity of Section 118 of the Indian Succession Act, which is applicable for non-Hindus in India. Mr Vallamatton contended that Section 118 of the act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will.
- The bench struck down the section as unconstitutional.
What are the merits of having Uniform Civil Code?
- Promotes Real Secularism: Secularism is the objective enshrined in the Preamble, a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
- Simplification of the Laws: The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all.
- Promotes Equality: A Uniform Civil Code would, in theory, provide equal status to all citizens irrespective of the community they belong to. The same civil law will then be applicable to all citizens irrespective of their faith.
- Supports national integration: A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.
- Promotes Gender Justice: It is commonly observed that personal laws of almost all religions are discriminatory towards women. Men are usually granted upper preferential status in matters of succession and inheritance. Uniform civil code will bring both men and women at par.
- Muslim men being allowed to marry multiple wives, but women being forbidden from having multiple husbands
- Even after the 2005 amendment to the Hindu Succession Act, women are still considered part of their husband’s family after marriage. So, in case a Hindu widow dies without any heirs or will, her property will automatically go to her husband’s family.
- Men (fathers) are also treated as ‘natural guardians’ and are given preference under the Hindu Minority and Guardianship Act.
- Reformative & aligned with Constitutional Ideals: The reason why Hindu Code Bill was introduced in the Constituent Assembly in 1947 by Dr. B. R. Ambedkar was to liberalise the personal laws and broaden the freedom of the individual. It is also meant to address the issue of equality of men and women in the Hindu social system. Therefore, having UCC that will cover entire society will remove any oppressive practices and bring reforms in society that upholds Constitutional ideals of equality & liberty.
- Reduces Burden on Judiciary: Judiciary will also be better off with lesser litigation originating from religious customs and personal laws. The nation can also focus on more important issues such as economy, quality of life of its citizens, and politics of development.
- Sign of Modern Progressive Nation: Personal laws were formulated in specific spatio-temporal context and should not stand still in a changed time and context. Having UCC will help the society move forward based on modern constitutional value system of liberty, equality & justice.
What are the Challenges with enacting UCC?
- Diversity poses challenge: It is practically tough to come up with a common and uniform set of rules for personal issues like marriage due to tremendous cultural diversity India across the religions, sects, castes, states etc.
- Dilutes Freedom of Religion: The constitution provides for the right to freedom of religion of one’s choice. With codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.
- In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter. By a 5:4 majority, the fundamental rights sub-committee held that provisions of UCC were outside the scope of fundamental rights and therefore the Uniform Civil Code was made less important than freedom of religion.
- Tool of Majoritarianism: Many communities, particularly minority communities fear that a common code will neglect their traditions and impose rules which will be mainly dictated and influenced by the majority religious communities.
- Sensitive & Tough Task: Such a code, in its true spirit, must be brought about by borrowing freely from different personal laws, making gradual changes in each and adopting expansive interpretations on each of the aspects of personal law. Hence, the government has to be accommodative & sensitive lest it becomes the basis for communal violence.
- Reforming the majority community’s laws is easier than reforming those of the minorities. Several Muslim countries, including Pakistan, have been able to reform Muslim laws but not the laws of their minority communities.
What is the way forward?
- At the end of the day, a UCC can only emerge through an evolutionary process, which preserves India’s rich legal heritage, of which all the personal laws are equal constituents.
- Major sensitization efforts are needed to reform current personal law reforms which should first be initiated by the communities themselves.
- The law commission of India was adjoined with the responsibility of formulating a uniform civil code and has opined that a country of such diverse dimensions in the matter of religion and culture does not require uniformity of laws. What is required is reforms to all the personal laws making them gender just.
- If each of the existing law of every community is made progressive and gender just, we may not even require a uniform law for all the communities
What is Goa Civil Code?
- In 1867, Portugal enacted a Portuguese civil code and in 1869 it was extended to Portugal’s overseas provinces (that included Goa).
- When it comes to marriages, the law uniformly mandates that there will be a two-stage process commonly referred to as the first and second signature. The first being the statement of intentions (and calling for objections) and the second signature being the formal marriage.
- During the course of a marriage, all the property and wealth owned or acquired by each spouse is commonly held by the couple.
- Each spouse in case of divorce is entitled to half of the property and in case of death, the ownership of the property is halved for the surviving member.
- The parents cannot disinherit their children entirely. At least half of their property has to be passed on to the children. This inherited property must be shared equally among the children.
- The law also doesn’t recognise bigamy or polygamy, including for Muslims but grants an exception to a Hindu man to marry once again if his wife doesn’t conceive a child by the age of 21 or a male child by the age of 30.
- There exist differences in how the law recognises a valid marriage when it comes to Roman Catholics and non-Catholics. While the first signature is common across all religions, the church ceremony is considered a valid ‘second signature’ for Catholics with the law recognising a Church marriage as valid for civil purposes.
- For non-Catholics, however, both signatures are required to be before a civil registrar.
- Similarly, a divorce granted by the ecclesiastical (Church) authorities is treated as a valid divorce for civil purposes, while non-Catholics have to secure a divorce before a civil court.
What is the history of Hindu Code Bill?
- The Hindu Code Bill Committee was constituted in 1941 but it took 14 years to pass the legislation — and not as one uniform Act but as three different ones:
- The Hindu Marriage Bill outlawed polygamy and contained provisions dealing with inter caste marriages and divorce procedures;
- Hindu Adoption and Maintenance Bill had as its main thrust the adoption of girls, which till then had been little practised;
- Hindu Succession Bill placed daughters on the same footing as widows and sons where the inheritance of family property was concerned.
- Moreover, not all reforms could be incorporated because of opposition from the Hindu right
- In the debate on the Hindu Code Bill in 1949, 23 of the 28 speakers opposed it.
- In 1949, the Hindu right formed an All-India Anti Hindu Code Bill Committee, who justified unregulated polygamy.
- Dr B R Ambedkar had to resign as Law Minister. On September 15, 1951, President Dr Rajendra Prasad threatened to return the Bill or veto it. PM Jawaharlal Nehru yielded; the Bill was not passed.
- When eventually passed after several years, it did not give daughters a share in a Hindu joint family’s property. This amendment came in 2005, during the UPA regime.
Mains Practice Question – What are the hurdles in implementing the directive principle of the Uniform Civil Code?
Note: Write answers to this question in the comment section.