Uniform Civil Code: Theory and Practicality

The Preamble of the Constitution of India, defines the nation as based in ‘Secularism’, implying that the governance shall not be inspired from, derived from, rely on nor propagate any religious belief. The same Preamble also provides that the State shall guarantee ‘Liberty of belief, faith and worship’. [1] Simply put, the State shall be a non-religious entity and ensure for a land where all religious faiths can be professed and preached.

However, there are two important points of considerations in this line of thought: firstly, the Constitution does not define the word ‘secular’ or ‘secularism’, therefore, it is ambiguous if the State shall have no considerations based in religious faith or the State shall have equal considerations for all religious faiths. Secondly, the practice of different religious faiths connotes disparity in matters of personal laws.[2] The situation gets further complicated when in pragmatic working of a society, the individuals form associations across the boundaries of culture, ethnicity and religion for instance, inter-religion marriage. This makes the governance of laws concerning private matters in the Indian setting not only complex but also chaotic.

In trying to work a way out of the confusion, heed shall be paid to Part 3 of the Constitution which guarantees fundamental rights. Article 14 ensures no discrimination on the basis of religion and Art. 25 and 26 ensure the right to freely profess, practice and propagate religion along with freedom to manage religious affairs.[3] However, the rights guaranteed are “subject to public order, morality and health” and to the values of equality and social justice, enshrined in all other fundamental rights, allowing practices such as witchcraft, superstition, ordeals, sati, child marriage, prohibitions against widow remarriage, caste discrimination, casual triple talaq and polygamy be barred and regulated. Moreover, the codification of personal laws is also relevant here.[4] But the provisions still do not vouch for unanimity of rights and obligations neither does the point of individuals involved in associations across the societal boundaries of culture, ethnicity or religion and their rights or obligations stands resolved.[5]

At this point, if we progress to the Part IV of the Constitution and look into Art. 44 which promises a Uniform Civil Code, comes forward in the shape of a solution. [6] Uniform means ‘similar conditions’, Civil derived from Latin word ‘civilis’ means ‘citizen’; when it is used as Adjective of law it means ‘pertaining to private rights and remedies of a citizen’; Code means ‘Codified laws’. Indeed in legal regime, UCC is confined to having uniform private law for every member across the communities i.e. Hindu, Muslim, Christian, Parsi or Jews residing in India.[7]

The utility and the importance of the Uniform Civil Code[8] can be accurately emphasized in a three-pronged manner: national consolidation, equality of laws and gender justice. The Indian judiciary has stressed and exhorted the union legislature to enact a “common civil code” as early as 1985 in Mohd Ahmed Khan v Shah Bano Begum and Others[9]. The court felt the need to mention “common civil code” even when the case demanded an application of Section 125 of the Code of Criminal Procedure, 1973 which applies across the board to adherents of all religions, irrespective of their own personal laws.[10] The court reiterated the same later too in slightly different context, that of marriage between a Christian woman and a Sikh man under the Indian Christian Marriage Act, 1872 in Jordan Diengdeh v S S Chopra (1985)[11]. From then onwards, the Indian judiciary has been reiterating the same plea for a uniform civil code especially in matters of rights of women[12], adoption or guardianship[13] and succession[14], and the latest being the issue of triple talaq in the famous Shayara Bano case[15]. Furthermore, the Law Commission of India has even considered the issue in all seriousness recently when it came out with a questionnaire in order to assess the opinion of the stakeholders involved.[16]

However, the idea of Uniform Civil Code is not only utopian but also hit by impracticality. A unanimous law for all communities is far-fetched when the codified personal laws for one community allows for certain transgressions under the garb of culture.[17] For example, the Hindu personal law provides for customs and ceremonies linked to a particular culture as validity for marriage of the particular community;[18] custom and usage is also of importance considerations in the matters of adoption;[19] the rights of inheritance for the families is different for communities in Kerala and Tamil Nadu;[20] and the Hindu Minority and Guardianship Act, 1956 does not automatically apply to members of Scheduled Tribes.[21]

The judiciary, legislature or anyone propagating UCC as panacea to gender inequality or national integrity seems to lack a clear conception of what the code would look like. Moreover, no other part of the Constitution except for the Article 44, mentions a ‘Uniform Civil Code’, which is Directive Principles of State Policy hence, not justifiable.  There are in fact special provisions for the states of Nagaland and Mizoram that exclude the application of any parliamentary law on customary practices.[22] Similarly, the district and regional councils in tribal areas of Mizoram, Assam, Tripura and Meghalaya have been vested with exclusive legislative power concerning customs and family law.[23]

If we consider the instance of Goa, where the Portuguese Civil Code, 1939 is applicable on all communities, the application is not uniform. It has different regulations for the Catholic community than the other communities and in case of the Hindu community it even recognizes a limited form of bigamy.[24]

Therefore, an actual UCC would remove all requirements of religious ceremonies for the validity of marriage, abolish the concept of coparcenary property, and remove distinctions between converts and non-converts. Promotion of the UCC without completely understanding all that it entails is a mistake. And if the object is to achieve unanimity in personal laws of different religion then the iniquities must be addressed on their own terms rather than demanding a UCC.[25]

[1] Alka Bharati, Uniform Civil Code in India – still a distant dream ; American International Journal of Research in Humanities, Arts and Social Sciences 4(2), September-November, 2013, pp. 167-

169

[2] M.S Ratnaparkhi, Uniform Civil Code: An Ignored Constitutional Imperative (1st ed, Atlantic Publishers and Distributers), Pg 54

[3] Mohammad Ghouse, Personal Law and the Constitution of India, http://14.139.60.114:8080/jspui/bitstream/123456789/736/15/Personal%20Laws%20and%20the%20Constitution%20in%20India%20.pdf

[4] Rina Verma Williams, Reform and Codification of Hindu Personal Law: The Hindu Code Bills, 1948–57, Published to Oxford Scholarship Online: October 2012.

[5] Peter Ronald deSouza, Politics of the Uniform Civil Code in India, Economic & Political Weekly, Nov. 28, 2015 vol  no. 48

[6] Article 44, Indian Constitution states:“The State shall endeavor to secure for the citizens, a uniform civil code throughout the territory of India”.

[7] Ambika Prasad Jena, et al; Uniform Civil Code: A Distant Ray of Hope, Journal On Contemporary Issues of Law (JCIL) Vol. 2 Issue 7

[8] Why India needs a uniform civil code , Livemint http://www.livemint.com/Opinion/YJFZYlzt2IN3lkOlljLjfO/Why­India­needs­a­uniform­civil­code.html

[9] Mohd Ahmed Khan v Shah Bano Begum and Others AIR 1985 SC 945.

[10] Bai Tahira A v Ali Hussain Fissalli Chothia and Another (1979): SCC, SC, 2, p 316. and Fuzlunbi v K Khader Vali and Another (1980): SCC, SC, 4, p 125.

[11] Jordan Diengdeh v S S Chopra (1985): SCC, SC, 3, p 62

[12] Sarla Mudgal, President, Kalyani and Others v Union of India and Others (1995): SCC, SC, 3, p 635.

[13] ABC v The State (NCT of Delhi) (2015): SCC, SC, 10, p 1.

[14] John Vallamattom and Another v Union of India (2003): SCC, SC, 6, p 611.

[15] Madhukalya, Amrita: “Meet Shayara Bano, the Woman Who Wants to Ban Triple Talaq,” Daily News and Analysis, 26 April, http://www.dnaindia.com/india/ report-meet-shayara-bano-the-woman-who-wa-nts-to-ban-triple-talaq-2206111.

[16] Questionnaire on Uniform Civil Code, Law Commission of India http://lawcommissionofindia.nic.in/questionnaire.pdf.

[17] Article 29 of  Indian Constitution.

[18] Section 7 of the Hindu Marriage Act, 1955.

[19] Section 10 of the Hindu Adoptions and Maintenance Act, 1956.

[20] Section 17 of the Hindu Succession Act, 1956.

[21] Section 3 of the Hindu Minority and Guardianship Act, 1956.

[22] Article 371A of Indian Constitution; Article 371G of Indian Constitution.

[23] Sixth Schedule of Indian Constitution.

[24] Noronha, Frederick: “Goa’s Civil Code Has Backing of BJP, but It’s Not Truly Uniform,Scroll.in, 9 June,  http://scroll.in/article/666255/goas-civil-co d ehas- backing-of-bjp-but-its-not-truly-uniform.

[25] Alok Prasanna Kumar, Uniform Civil Code: A Heedless Quest?, Economic & Political Weekly, June 18, 2016 vol l no 25.

Authored by Nishtha Shukla | Edited by Aishwarya Himanshu Singh.

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