India is a land of diversity. There are several religions that are practised in our country and because of this, the laws of the country are divided into criminal and civil laws. The establishment of the Uniform Civil Code would help eliminate the conflicting opinions of different laws that are governed by religion and bring all the citizens to be governed by one single law.
The Uniform Civil Code (UCC) signifies a uniform law that applies to the entire country. Under Article 44 of the Indian Constitution, it is stated that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India. The UCC would be applicable to all religious communities in matters including inheritance, divorce, marriage, and adoption. The topic has been debated for decades now; the Bharatiya Janata Party (BJP) has promised to implement the code during the 2019 Lok Sabha elections.
Uniform Civil Code and the Constitution
The UCC can be found under Part IV of the Constitution. These are the Directive Principles of State Policy (DPSP). The issue here is that the DPSP are only guidelines given to the government; they are not imposed as laws. The objective of the article is to tackle the issue of discrimination in our country. Discrimination against vulnerable groups includes bridging gender discrimination as well. While drafting the constitution, the head of the drafting committee- Dr. B.R. Ambedkar, addressed the fact that UCC should be something that the government can implement once the nation would be ready, which is why Article 35 of the Constitution (draft) was added to the DPSP as Article 44.
What are the laws governing us presently?
The criminal laws are uniform throughout the country, no matter what religion someone belongs to; the civil laws are influenced by religion, and these are also known as personal laws. These laws focus on marriage, Divorce, Custodianship, Guardianship, Adoption, Maintenance, Succession, and Inheritance.
The term ‘Hindu’ encompasses Buddhists, Jains, and Sikhs and they are governed by Hindu Marriage Act. On the other hand, Muslim laws are based on roots in religious texts rather than codified laws. Christians are governed by the Indian Christian Marriages Act and the Indian Divorce Act, and the Parsis by the Parsi Marriage and Divorce Act.
Keeping various regional identities in mind, there are definitive exceptions relating to family laws in the regions of Andhra Pradesh, Assam, Goa, Mizoram, and Nagaland. Some laws are there that are more secular in nature, such as the Special Marriage Act, which is indifferent to religion, and the rights and duties of the guardians are stated in the Guardians and Wards Act. Goa, in fact, is the only state in India that has a uniform civil code. Irrespective of religion, the Portuguese Civil Code (1867) applies to all those who live in Goa.
Uniform Civil Code and the Indian Judiciary
Ahmed Shah v. Shah Bano Begum and Ors. [(1985) 2 SCC 556]
In this case, the Supreme Court emphasized the need for a UCC. The woman, who was divorced through triple talaq, sought maintenance, but the husband refused. When all the courts, including the Apex Court, ruled in favour of the woman, there was public outrage and, under public pressure, section 125 of the CrPC was rendered inapplicable to Muslim women, which caused gender bias and hence the need for the court to stress the need for UCC.
John Vallamattom & Anr vs. Union of India [AIR 2003 SC 2902]
In this case, a writ petition was filed by a Christian priest stating that section 118 of the said Act imposes unreasonable restrictions on Christian donation of property for religious or charitable purposes by will and is thus, discriminatory against them. This case highlighted the instability of religious laws as they do not uniformly apply to all and the need for the UCC.
What do the experts say about the implementation of UCC?
The UCC strives for gender equality and the abolition of discrimination against minority groups. In Swaddle’s article, experts spoke about the implementation of UCC.
Radhika Roy, a lawyer with a focus on gender and human rights, said that
In a utopian, homogenous society where every individual harbors high regard for their fellow citizens and their subjective choices, UCC would undoubtedly be the way forward. However, in the Indian context, the chances of misuse of UCC are, unfortunately, too great.
The right to practise, profess, and propagate one’s religion would be violated if there was a uniform law applicable to all. We must not hail UCC as the root of all social evils and must instead look at the underlying issues.
Arvind Abraham, an advocate with a focus on human rights, constitutional law, and legislative advocacy, said that the UCC’s impact would depend upon its content and the process that would be adopted when acting upon such a code. When it comes to its contents, the UCC must ensure uniformity in the rights, with equality also being uniform and gender justice being achieved. It must be framed transparently and comprehensively where consultations with all the communities are done to do justice to all. “It cannot be a high-handed majoritarian process or one which takes Parliament by surprise as was the case with the Article 370 measures. If the UCC sticks to the aforementioned guiding principles, then the UCC can be a step forward. However, if it is treated like a political tool to isolate any community, then it will only deepen the sense of marginalization experienced by vulnerable groups, particularly by religious minorities who have been at the receiving end of Hindutva politics, which harms social relations and national integrity.“
Moving forward, the government and the citizens as a whole would have to accept the fact that law and religion are not two sides of the same coin, they are different concepts, and one must not be the foundation or driving factor for another. Social reformation is required and this can be done by the codification of personal laws as this helps fight against the prejudice that is so far spread in the country. UCC is an urgent need of the hour as it will only strengthen the secularism and the democracy of the country. Not having UCC has harmed the minorities and women and uplifting these sections of our society is how we unite as a country.
Legal Intern, LawDiktat