Uniform Civil Code: An Impossible Change?




On our work depends the coming of the India of the future. She is there ready, waiting. She is only sleeping.”

– Swami Vivekananda


Today, one suggestion that has surety of raising hue and cry in the country is the formulation and implementation of the Uniform Civil Code. Each time it is brought up it divides the nation Politically, Socially and Religiously. Throughout the years it has created various debates, has led people to take their stand and the ones who don’t have any are left with no other option than to succumb to the pressure of the ones around them. The question here is, does India need this change? Is the Uniform Civil Code a need for the better future of our country? But what is the Uniform Civil Code?


It refers to One Law, One Country i.e. common set of rules governing the citizens over civil matters. It is well known that all citizens of India are governed by uniform criminal code irrespective of their religion, caste, race or any other social identity but in case of civil matters, there are Personal laws. These personal laws are codified on the basis of religion hence creating a division and difference between the implementation of law on disputes such as marriage, inheritance, adoption etc. Enacting uniform law means to repeal these personal laws and codify a new set of rules which will be a long drawn process.


In India, Goa is the only state which has a uniform civil code. The Portuguese Civil Code of 1867 applies to all of its citizens (Goans) irrespective of their religion.

During the Colonial rule, the British saw the need of having uniform code for India as it would ease their administration. So, the British Government on the basis of the Lex Loci Report of October 1840 framed Uniform laws for crime, contract and evidence. But due to the religious divisions and diversity, the British recommended and applied the religious scriptures (personal laws) to govern the Indians in civil matters instead of formulating uniform laws. After Independence, Dr. B.R Ambedkar, law minister of the Indian Government, advocated the adoption of a Uniform Civil Code. He said,” I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field.” He saw the Uniform Civil Code as a way to enable social progress and foster national unity and stability combined with equality among all the citizens. But his view and suggestion were strongly opposed by the ones who wanted to immortalize personal laws especially the Muslims who preferred to stay on the ground of a secular nation and to stick with the Shariat law. There were demands for separate electorate made by the Muslims and to add to it was the hostility of traditional Indian Congressmen. Realizing that even though implemented, a uniform civil code would be ineffective due to the force of resistance against it, the Uniform Civil Code was included as one of the Directive Principles of State Policy in the Indian Constitution instead of being implemented as the common law. Therefore, Article 44(DPSP) of the Constitution of India states that” The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”


Being a DPSP Article 44 cannot be enforced by any court but can be by the government as it is the duty of the government to apply these principles while making laws. The sole reason being that Article 37 of the Indian Constitution declares that,” The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”


Accordingly, Bhartiya Janata Party (current ruling party) has made a promise to draft and enforce Uniform Civil Code in each of its manifestoes since 1998 but has failed to fulfil it throughout the years. In the first year of its new term as the ruling party, it has abrogated Article 370, annulled Article 35A, cleared ‘Ram Mandir’ dispute and has implemented the Citizen Amendment Bill. All of these were promised in the manifesto which means that the chances of the Uniform Civil Code being formulated and imposed are high and possible during the current ruling term of the party. Political leaders and parties have a varied opinion on this while some believe it will kill religious diversity and is impossible to implement, others believe that it has nothing against the religions and if implemented will only be for the betterment of the country as the uniform code will be formed by including the best of the personal laws. In support of Uniform Civil Code M Venkaiah Naidu, Union Parliamentary Affairs Minister said, "What is best in every religion, in every society should be taken out. I am of the firm view, marriage, divorce, inheritance and right to property these things should be common. Other things, of course, what is the way of worship, what is the way of other practices should be left to individuals. There is nothing against any religion in common civil code." If implemented BJP is most likely to lose its Muslim and religious minority’s vote bank as it can be perceived as ‘tyranny of the majority’ especially after the ‘Ram Mandir’ dispute in which the Supreme Court held that the land will be handed over to a trust to build Hindu temple instead of having built a mosque. And, the Muslim and other religious minorities weren’t included even in the Citizen Amendment Act, 2019.


Personal laws apply to people on the basis of their religion as they were codified from religious scriptures. And enforcement of Uniform Civil Code means annulment of these laws, leading to violation of Article 25 of the constitution. This article provides the fundamental right to freedom to practise, profess and propagate religion which allows and supports the religious communities to practice personal laws. Over the years these laws have been amended according to the need of the developing society like in the verdict of the Shah Bano case of 1985, Muslim women were to be paid maintenance after the divorce. Then, in the recent case of Shayara Bano triple talaq was declared unconstitutional. Under the Hindu succession, law amendment was made to make daughters equal coparceners as the brothers of their family property. The Hindu Marriage Act declared polygamy illegal and brought an end to the old practice of marrying several women in order to get a son.


It is explicit that personal laws have a major effect of patriarchy on them; most laws are in the favor of men which makes them discriminatory in nature. This, in turn, violates article 14 which is a fundamental right to equality before the law. Application of Uniform Civil Code in itself means one law for all and if formulated through the right process will ensure equality among the citizens as promised in the Indian Constitution. In a civil case where the defendant and the plaintiff’s personal laws are different, the personal law of the defendant prevails over the trial. This again is not fair to the plaintiff and complicates the proceedings. The imposition of Uniform Civil Code can simplify the law and procedures of the court and ensure equality and fairness.


India as stated in the Preamble of the Constitution of India. Secularism, as defined by the Merriam-Webster dictionary, means “the belief that religion should not play a role in government, education or other parts of the society.” Yet our government can take over the temples but not mosques under the Hindu Religious Endowment Act. Above all, even the process of adoption is different for all depending on the basis of our personal laws. Thus, we are not really a secular nation and wouldn’t be until we have one common law followed by all the citizens irrespective of their religion or religious beliefs.


Conclusion

In the era where each citizen grows more aware of her/his right with each passing day, it is important to have equality before the law. One should not face injustice merely because personal laws state otherwise. If India is able to enforce uniform code in respect to crimes, evidence and contracts then a uniform civil code can also be enforced. Muslims and other religious minorities would feel vulnerable as to the personal laws are their protection. But through sensitization that the common code will be formulated on the basis of equality and by including the appropriate laws taken from the personal laws of all religions, this will aid to reduce consequences like public protests and riots. The implementation of the Uniform Civil Code does not restrict freedom of practice of religion rather amends and promotes social welfare. It is the need of the hour to establish fairness and to discontinue the age-old practices which discriminate and are unjust but are propagated implicitly under the name of religion. Thus, the Universal Civil Code is a necessity for the amelioration of India’s future, waiting to be framed and enacted in good faith.

By- Ananya Gupta

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