INTRODUCTION
We all know what the Uniform Civil Code or UCC is, it has always been a topic of heated debate, especially in the last few years. India is a country with diverse cultures and different religions, known for its secular values and unity. In India, Criminal Laws are codified and common for all citizens while Personal Laws vary from religion to religion. Personal Laws deal with matters like marriage, divorce, succession, inheritance, and maintenance. UCC in itself is very complex and it has woven a complex web of legal, social and ethical questions. Debate and discussion on the UCC have always revealed a nation at the crossroads of tradition and modernity. Are personal laws better for Indian society? Does the UCC violate individuals’ rights, or is it crucial to safeguard marginalized communities? What are the challenges in implementing the UCC? This blog will unveil the layers of complexity surrounding this topic, reflecting India’s intricate blend of tradition, diversity, and aspirations for equality and justice.
UCC AND ITS HISTORY IN INDIA
The Uniform Civil Code was incorporated in part IV, article 44 of the Indian constitution as a Directive Principle of State Policy (DPSP) that states “the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India”[1]. In simple words, UCC is a proposed legislation that aims to establish one uniform personal law that will be applicable throughout the country irrespective of an individual’s religion, sex and gender orientation.
The history of UCC goes back to the pre-independence era when the East India Company tried to reform the local laws in India. The Lex Loci Report of October 1840 emphasised the necessity of uniformity in the codification of Indian law where it recommended that personal laws of Hindus and Muslims should be kept outside such codification[2].
In 1948, the constituent assembly took up the draft article on UCC and once again discussed the enforcement of UCC throughout the Indian Territory. The first Prime Minister of India, Jawaharlal Nehru Law Minister B.R. Ambedkar, and some other women leaders were in support of implementing UCC. B.R. Ambedkar recommended the adoption of UCC by saying that it would help promote unity in our diverse society but due to severe criticism from the Muslim leaders, orthodox minority groups and lack of knowledge about this concept in the common public, The constituent assembly decided to put UCC in DPSPs and not in fundamental rights[3].
The topic of UCC once again sparked a heated debate following the landmark judgement, Mohd. Ahmed Khan v. Shah Bano Begum & Ors[4] also known as Shah Bano Case by the Supreme Court in 1985. In this case, a Muslim woman, Shah Bano filed a petition in the Supreme Court for maintenance after her divorce in which the Supreme Court ruled in her favour. In this judgement, the apex court held that Muslim women were indeed entitled to maintenance under section 125 of the CrPC, which is a secular law applicable to all Indians regardless of their religion[5]. Rajiv Gandhi’s Congress government, which previously had the support of Muslim minorities, lost the local election in December 1985 because they endorsed the Supreme Court’s decision. Due to the fear of losing the support of the assembly, the elected government passed the Muslim Women (Protection of Rights on Divorce) Act in 1986. This act essentially nullified the judgement in the Shah Bano case by restricting the maintenance awarded to divorced Muslim Women to the period of iddat only[6].
Over the years many petitions have been filed in the Supreme Court regarding the same and UCC has been a topic of discussion ever since.
ARGUMENTS FOR AND AGAINST UCC
Arguments for UCC are very divergent. Both the Arguments challenging and supporting the UCC are solid and justifiable. The main argument for opposition to UCC is that it may violate the individual’s fundamental right to freedom of religion. They also argued that UCC is against the secular values of India. The supporters of UCC justified the adoption of UCC by arguing that it will promote unity and integrity in the country by eliminating gender-biased and discriminatory personal laws. UCC also inspires hope for the LGBTQI+ community as even though homosexuality has been recognised by the Supreme Court no applicable law in India up to this date has acknowledged same-sex marriage as legal.
PRACTICAL CHALLENGES IN IMPLEMENTING UCC
- Diversity: The diversity of religions and cultural practices in India is one of the biggest challenges in the implementation of the Uniform Civil Code. Subject matters like marriage and divorce are governed by different personal laws like The Hindu Marriage Act of 1955[7], The Muslim Personal Law (Shariat) Application Act of 1937[8], and The Parsi Marriage and Divorce Act of 1936[9]. Personal laws are seen as an integral part of religion by many communities and many believe that enforcement of UCC may violate the fundamental right of freedom of religion and harm the diversity of India.
- Customary Laws: The culture of India is so diverse that the custom changes in every state. Tribal communities in the area like Nagaland and other northeast states follow customary practices and traditions that might differ from mainstream practices. Enforcement of UCC may lead to unrest and resistance among these tribal communities who fear losing their distinctiveness.
- Political Will: Lack of political will is yet another one of the major challenges in the implementation of the UCC. No government, to this date, was confident enough to implement the law due to the fear of backlash from religious groups. Constant opposition and fear of communal disharmony made the government reluctant to implement the law.
- Lack of Knowledge: “Condemnant quo non Intellegunt[10]” which means “They condemn that which they do not understand.” This maxim highlights the tendency of people to criticize things that they lack a proper understanding of. The lack of knowledge about the UCC among the masses is yet another hurdle that the government needs to overcome. Proper understanding of UCC among the public is important before implementing it to avoid chaos and disharmony in society.
- Nature of UCC: Another problem is the nature of the UCC, there is no consensus on what should be included or excluded from the Uniform Civil Code. Formulating it can be a complex task given religious diversity.
SOCIO-LEGAL VIEW ON HOW UCC WILL AFFECT WOMEN’S RIGHTS IN INDIA
Indian society has always been dominated by a patriarchal mindset. Women have always been oppressed, dominated and exploited by society through different means, be it old rigid customs like the sati practice, dowry system, triple talaq or unequal power distribution in the family. Despite having stringent laws, Suicidal death, dowry killing and female foeticide are still very common. In contemporary times, if we closely analyse the personal laws we will notice how it is favourable for men. All the codified and non-codified religions have been dominated and controlled by men, so all the beliefs propounded in them push women to a lower status. Polygamy, for instance, has its strict compliance per Sharia, which is often a misused provision among men, and Christianity preaches the low status of women. Women, under the attire of religion, are discriminated against in matters of divorce, maintenance, inheritance, etc. Divorce should also be considered religion-neutral because it is a part of human rights issues[11]. If the UCC is enacted, it will replace the system of fragmented personal laws that currently govern interpersonal relationships within different religious communities.
CONCLUSION
The process of framing and implementing the UCC according to the needs of our country might be complex, but it is a step forward to a more just and inclusive society. The root of Indians lies in their cultural belief and religious values so it is also important for the government to initiate widespread public consultation to build consensus and address potential concerns from all the communities. India is walking on the path of modernity and modification. In this time of transformation, India needs to reform its laws according to the needs of the people. Embracing the Uniform Civil Code could be the bridge that harmonizes personal beliefs with the vision of a just and inclusive society.
Author(s) Name: Shristi Singh( Savitribai Phule Pune University, Shankarrao Chavan Law College)
References:
[1] India Constitution, art 44.
[2] Anil Chandra Banerjee, English Law in India (Abhinav Publication 1983)
[3] Constituent Assembly of India debates, November 1948, Volume VII
[4] Mohd. Ahmed Khan v. Shah Bano Begum (1985) 3 SCR 844
[5] Express Web Desk, ‘What is Shah Bano case?’, The Indian Express, August 23 2017 <What is Shah Bano case? | What Is News – The Indian Express>
[6]C.K.Mathew, ‘Uniform Civil Code: The importance of an inclusive and voluntary Approach’(2019)(10) The Hindu Centre for Politics and Public Policy < https://www.thehinducentre.com/the-arena/uniform-civil-code-the-importance-of-an-inclusive-and-voluntary-approach/article64931357.ece> accessed 26 september 2023
[7] Hindu Marriage Act 1955
[8] Muslim Personal Law (Shariat) Application Act 1937
[9] Parsi Marriage and Divorce Act 1936
[10] Condemnant Quo non Intellegunt
[11] Yashi Gulecha, ‘UCC and Women’s Rights’ (6 May 2021) Juris Centre <UCC and Women’s Rights – Juris Centre>
