Uniform Civil Code in India GS: 2 "EMPOWER IAS"

In news:

• Last week, while hearing a matter relating to properties of a Goan, the Supreme Court described Goa as a “shining example” with a Uniform Civil Code, observed that the founders of the Constitution had “hoped and expected” a UCC for India but there has been no attempt at framing one.

 

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44 of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• Article 44 is one of the directive principles. These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance. 
• Fundamental rights are enforceable in a court of law.
• Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc. Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.

 

What are the Pros of the Uniform Civil Code

• To provide equal status to all citizens: In the modern era, a secular democratic republic should have a common civil and personal laws for its citizens irrespective of their religion, class, caste, gender etc.
• To promote gender parity: 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.
• To support the national integration: All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are same for all. With the implementation of Uniform Civil Code, all citizen will share the same set of personal laws. There will be no scope of politicization of issues of the discrimination or concessions or special privileges enjoyed by a particular community on the basis of their particular religious personal laws.
• To accommodate the aspirations of the young population: Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity.Their view of shedding identity on the basis of any religion has to be given a serious consideration so as to utilize their full potential towards nation building.
• To bypass the contentious issue of reform of existing personal laws: Existing personal laws are mainly based on the upper-class patriarchal notions of the society in all religions.

 

What are the Cons of Uniform Civil Code?

• Practical difficulties due to diversity in India: 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.
• Perception of UCC as encroachment on religious freedom: Many communities, particularly minority communities perceive Uniform Civil Code as an encroachment on their rights to religious freedom. They fear that a common code will neglect their traditions and impose rules which will be mainly dictated and influenced by the majority religious communities.
• Interference of state in personal matters: 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.

 

What are more important — fundamental rights or directive principles?

• The Supreme Court held in Minerva Mills (1980): “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution”.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14 and 19.

 

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
•  States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
•  Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List. But “personal laws” are mentioned in the Concurrent List
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

 

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians. Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments. The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed. 
• Muslims of Kashmir were thus governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law. 
• Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• 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. Even reformed Hindu law, in spite of codification, protects customary practices.

 

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
•  Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”.
•  Article 29 defines the right to conserve distinctive culture.
•  An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights.
• In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held that the provision was outside the scope of fundamental rights and therefore the Uniform Civil Code was made less important than freedom of religion.

 

What was the view of Muslim members in the Constituent Assembly?

• Some members sought to immunise Muslim Personal Law from state regulation. Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people. 
• B R Ambedkar said “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a Uniform Civil Code, conceded that it would be unwise to enact Uniform Civil Code ignoring strong opposition from any community. Gender justice was not mentioned in these debates.

 

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Jawaharlal Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
• On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it.
• Ambedkar eventually had to resign. Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

 

Famous judgments:

Shah Bano Case

• Mohammad Ahmed Khan v. Shah Bano Begum mainly known as Shah Bano Case. In this case in 1985, Shah Bano moved to Supreme Court for seeking maintenance under section 125 of the Code of Criminal Procedure when her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance. 
• The Supreme Court gave verdict in favour of Shah Bano by applying section 125 of Indian Criminal Code and it is applied to all citizens irrespective of religion.
•  Then Chief Justice, Y.V Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. And so, the court directed Parliament to frame a UCC.

 

Sarla Mudgal Case:

• This is the second instance in which the Supreme Court again directed the government under Article 44.
• In this case Sarla Mudgal v Union of India, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam can solemnise second marriage.
• The Supreme Court held that adopting Islam for a second marriage is an abuse of Personal laws.
•  Further said that Hindu marriage can be dissolved under Hindu Marriage Act, 1955 i.e. mere by converting itself in to Islam and marry again does not dissolve the marriage under Hindu Marriage Law and thus will be an offence under Section 494[5] of the Indian Penal Code.

 

 

John Vallamattom v. Union of India Case

• The Priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the Indian Succession Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purpose by will.
•  The bench comprising of Chief Justice of India V.V Khare, Justice S.B Sinha and Justice A.R. Lakshamanan struck down the Section declaring it to be unconstitutional. Further Khare stated that;

 

Source)

https://indianexpress.com/article/explained/uniform-civil-code-explained-6261308/