19 Oct

Uniform Civil Code

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Content

• Introduction
• Need of Uniform Civil Code
• Why has India not been able to implement UCC yet?
• Contradictory Provisions of the Constitution (UCC vs other provisions of the Constitution)
• Some criticisms of UCC

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Introduction

• Uniform Civil Code means same law for every citizen of the country in civil matters such as marriage & divorce, succession & inheritance; Minority & Guardianship; and adoption & maintenance.
  • It doesn’t only mean same law (or equality before law) between different communities, but also within the communities (i.e., between men, women, transgenders etc.)
• Article 44, of the Constitution of India declares that the state shall endeavor to secure the citizens a Uniform Civil Code.
  • Further Article 37 of the constitution states that “the principles laid down under DPSP are fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws”.
• At the time of independence, UCC was only accommodated as a DPSP due to communal disharmony and resistance to remove personal laws against the backdrop of partition.
  • There was a need to placate every community by providing that their way living was not endangered in India.

Need of Uniform Civil Code

• National Integration: Different civil laws for different religious group, “communalize” the society. It is an affront to the nation’s unity.
• Absence of UCC can be seen as Violation of Fundamental Right to Equality
• Different civil laws complicate the legal system and leads to more delays.
• UCC will provide an opportunity to reform personal laws which are currently discriminatory because of patriarchal influence (Polygamy, Property Rights, Maintenance Rights etc.)
• Supreme Court has supported introduction of UCC in a number of rulings:
  • Shah Bano Case, 1985: The SC upheld the right of a Muslim woman to seek alimony. The court had said that “A common civil code will help the cause of the national integration by removing disparate loyalties to law which have conflicting ideologies”.
    • The judgment set off a political battle as well as a controversy about the extent to which courts can interfere in Muslim personal law and the decision was undone by Parliament.
  • In Sarla Mudgal vs Union of India (1995), the SC prohibited conversion to Islam to benefit from the laws that allow polygamy and added that the need for polygamy can hardly be doubted.

Why has India not been able to implement UCC yet?

• Lack of understanding of UCC among people:
  • Perception of UCC being an encroachment on religious freedom. It is seen as a threat to minority culture and way of life.
  • For e.g., the All-India Muslim Personal Law Board (AIMPLB) has been consistently opposing a UCC because it fears that such a code will undermine Muslim identity.
• Diversity of personal practices in India
  • For e.g. – In South India, marriage among cousins is acceptable among Hindu community, whereas it would be considered a big taboo in northern India.
  • Some tribes follow the custom of asking the husband to move over to the wife’s place after marriage and the wife has the right to drive the man out any time during their married cohabitation if she decides to do so in consultation with the community.
  • In some Indian communities, property is inherited by daughters, not by sons. Among the Khasis in Meghalaya, a woman is treated as the head of the family, and she plays the role for all legal purposes. – Among the Kinnaurs of Himachal Pradesh, the custom is for a woman to take up to five husbands.
• A prominent Constitutional expert – Upendra Baxi asks, “Do we know enough about the personal law of various tribal communities from which the UCC may choose?”

Contradictory Provisions of the Constitution (UCC vs other provisions of the Constitution)

• The sixth schedule of the Constitution was added for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram and confers powers on district councils and Regional Councils in those states to make laws with respect to inheritance, marriage, divorce and social customs.
• Special Provisions (Article 371A for Nagaland, 371F for Sikkim, and 371G for Mizoram provide special provisions protecting the religious or social practices and customary laws.

Various laws allow for diversity in Civil Code:

• For e.g., PESA Act, 1996; the Chota Nagpur Tenancy Act, 1908; and the Santhal Parganas Tenancy Act, 1876, recognize various customary practices among tribals. This is also protected under 5th schedule of the Constitution.

Politicization of the issue -> The issue is now perceived as a Hindu-Muslim issue.

Some criticisms of UCC

• ‘United’ Nation does not mean uniformity.
  • A ‘united’ nation need not necessarily have ‘uniformity’, it is making diversity reconcile with certain universal and indisputable arguments on human rights.
  • The diversity both religious and regional, should not be subsumed under the louder voice of the majority.
• Secularism cannot contradict the plurality prevalent in the country. Secularism has meaning only if it assures the expression of any form of difference.
• Society is not ready.
  •  Implementation of UCC in the absence of proper awareness about its need in the society can be counterproductive and result into political and social tensions.
  • 21st Law commission of India had suggested changes in personal laws of all the religions to reduce discrimination against females, disabled or transgenders. It had said that “UCC is neither necessary nor desirable at this stage”.

 Way forward

• Don’t politicize the issue (no chest thumping).
• Educate people about significance of UCC and remove misconceptions and apprehensions from among them.
• For now, in the absence of any consensus on UCC, the best way forward, as suggested by 21st Law Commission of India in 2018, will be to preserve the diversity of personal laws but at the same time ensure that personal laws don’t contradict the fundamental rights guaranteed under the Indian Constitution.
  • For this there is a need of the “codification of all personal laws” so that the prejudices and stereotypes in every one of them would come to light and would be tested on the anvils of Fundamental Rights guaranteed by the Constitution.

Conclusion:

Uniform Civil Code in India is a complex and nuanced issue, and opinions of the matter vary widely across different sections of society. The decision to implement a UCC ultimately lies with the Indian government and will require careful consideration of the diverse perspectives and interests involved.