UNIFORM CIVIL CODE: PROGRESSIVE OR REGRESSIVE LAW
The Uniform Civil Code is also known as UCC was a proposal made by the Parliament to implement and formulate the personal laws of citizens which apply to all citizens equally, irrespective of their Religion, Sex, Gender & Individual Sexual Orientation Choices.
At present, the personal laws of different communities are based on their religious scriptures and texts. Personal laws are distinguished from public law and it covers areas such as – Marriage, Divorce, Inheritance, Adoption, and Maintenance. These Personal Laws were first framed by the British Government for Hindus and Muslims. The British Government opined that there would be opposition from the community leaders of both groups.
In the parlance, the UCC refers to the set of laws governing the Personal Matters such as Marriage, Divorce, Adoption, Inheritance, and Succession.
Canada is a common location for U.S. borrowers for a variety of reasons (NAFTA proximity), including the implementation of the Personal Property Protection Act (PPSA). The PPSA is based on the ideals of the UCC and has been adopted in all provinces except Quebec. In India, Goa is the only state which has a uniform civil code. The Goa Family Law is the set of civil laws, originally the Portuguese Civil Code continued to be implemented after its annexation in 1961.
A uniform civil code means that all citizens of India have to follow the same laws whether they are Hindus or Muslims or Christians or Sikhs. A uniform civil code doesn’t mean it will limit the freedom of people to follow their religion. It will help in improving the condition of women in India. It will also help in reducing vote bank politics that most political parties indulge in during every election. In India, Muslims, Christians, Hindus, and Parsis have their respective personal laws. This system of diverse personal laws has enjoyed state protection from the earliest years of the post-Constitution era.
UCC emerged as a topic of interest after the case of Shah Bano in the year 1985. The questions were raised to make certain laws that apply to all citizens without abridging the fundamental right to practice religious functions.
- History of Uniform Civil Code:-
The East India Company tried to reform the local social & religious laws/customs by imposing western ideologies on the Indian people. The Report of October 1840 known as the Lex Loci Report draws the need for uniformity of laws with regard to areas of laws such as Contract, Crime & Evidence. The report also suggested recommendations to not codify the Hindu and Muslim Personal Laws as a result of their Divide and Rule Policy which implied breaking the unity between these two communal groups.
The British Government from their viewpoint made divisions of the community groups that were based on the religious scriptures and customs which were later on applied by the local courts or Panchayats which dealt with cases that involved civil disputes between people of the same religion.
The Hindu laws were given preference by both Indian and British Judges for instance the Brahmin Community as the British Government feared the opposition from the Brahmin community as they were considered the High Caste Community.
The Muslim Personal was enforced in various parts of India and had no uniformity in its application to the courts due to the diverse nature of the cultures of the Muslims. The application of the Sharia Law was not uniform and the orthodox culture was dominant which lead to great discrimination against the women of the community.
- Indian Constitution and The Uniform Civil Code: –
While Drafting the Indian Constitution the makers maintained the fine line of distinction between the personal laws of the communal groups. Article 44 (Part IV) of The Indian Constitution defines that,
“The State shall endeavor to secure the Citizens a Uniform Civil Code throughout the territory of India.” Article 44 was incorporated under the Directive Principles with the intent that it would be fulfilled when the nation would be ready for the change.
The major reason to incorporate Article 44 in DSP was a means of compromise made by the women activist at the beginning of the 20th Century. Dr. B R Ambedkar recommended the adoption of the Uniform Civil Code as he stated that it will be a chance to reform the Hindu society and ensure the Protection of the women belonging to the Muslim Community who were discriminated against by the Sharia Law. The Hindu Code Bill, which covers Buddhist, Sikhs, Jains as well as different religious denominations of Hindus, was notified, and there were a lot of protests. And the then Law Minister, Dr. Ambedka, had quoted that for India’s unity, the country needs a codified law.
- Need for Uniform Civil Code: –
The need for UCC is to nullify such codified laws and bring a common law that would govern all the citizens equally without the interference of the Communal Laws for instance the laws based on the Hindu, Muslim, or Christian Scriptures, and Texts.
- Shah Bano Case: – (1985)
The landmark judgment of the Shah Bano Case highlighted the religious challenges.
- Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978.
- She filed a criminal suit in the Supreme Court of India, in which she won the right to alimony from her husband.
- She was subsequently denied the alimony when the Indian Parliament reversed the judgment under pressure from Islamic orthodoxy.
- The judgment in favor of the woman, in this case, evoked criticisms among Muslims some of whom cited Quran to show that the judgment conflicted with Islamic law.
- It triggered controversy about the extent of having different civil codes for different religions, especially for Muslims in India.
- The Parliament with an absolute majority, passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcees the right to alimony from their former husbands.
- However, in the later judgments including the Daniel Latifi case and Shamima Farooqui v. Shahid Khan case, the Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgment and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified.
- Many Muslims including the All India Shia Personal Law Board supported the Supreme Court of India’s order to make the right to maintenance of a divorced Muslim wife absolute.
- The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged before the Supreme Court in Danial Latifi & Anr v. Union of India by Daniel Latifi in 2001, who was the lawyer of Shah Bano in the Shah Bano case.
The Muslim Personal Law Board, questioned the authority of the court to interpret religious texts. The Court concluded that the Act does not, preclude maintenance for divorced Muslim women and that Muslim men must pay spousal support until the divorced wife remarries. However, the Court held that if the Act accorded Muslim divorcees unequal rights to spousal support compared with the provisions of the secular law under section 125 of the Criminal Procedure Code, then the law would, in fact, be unconstitutional.
The Supreme Court interpreted the statutory provision in such a manner that it does not fall violate Articles 14 and 15 of the Constitution of India. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which defines that
“A reasonable and fair provision of maintenance must be made and paid to the wife within the IDDAT period by her former husband”.
The Court held this provision means that reasonable and fair provision of maintenance is not just limited for the Iddat period (as evidenced by the use of the word “within” and not “for”) and stated that it extends for the entire life of the divorced wife until she remarries.
Pros of Uniform Civil Code: –
It will lead to more gender equality laws.
It will boost national integrity
It will protect the vulnerable sections of the society
Simplification of laws
It will be a Cornerstone of Secularism
Cons of Uniform Civil Code: –
It might lead to a threat to communal harmony
Government’s interference in Individual’s Freedom
It’s not the right time for the implementation of UCC
It will lead to difficulties due to India’s diversity
Due to historical reasons, the demand for a uniform civil code has acquired communal overtones which have overshadowed the innate merits of the proposal.
The government and society will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives. The implementation of the Uniform Civil Code can be considered the need of the hour. Even after years of having independence, citizens are not enjoying real freedom yet. The unified personal law cannot be viewed with religious emotion but as the need of the country.
WRITTEN BY –
Ms. Aathira Nair