Uniform Civil Code - Towards Gender Justice And Social Reform
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Category: International Law
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UNIFORM CIVIL CODE: TOWARDS GENDER JUSTICE
AND SOCIAL REFORM
Patrali Sahu, Maharashtra National Law University Aurangabad Prasunika Shukla, Maharashtra National Law University Aurangabad “Without a Uniform Civil Code, labelling India a Secular nation is just an illusion. Uniform Civil Code is necessary for India so that the same laws are valid for every citizen without taking religion into consideration.” ― Vikram Singh Slathia
ABSTRACT
Uniform Civil Code (UCC) also known as ‘One Nation- One Law’ is a proposal in India and is stated under Article 44 of the Part IV in the Constitution of India. The purpose of the UCC is to replace the Personal Laws with a Uniform Law which will be applicable to all the citizens equally regardless of their religion, caste, sex, origin, etc.1. The purpose of this essay is to understand contemporary developments, events, judgements and committee recommendations which gave rise to the idea of UCC and the need for its implementation. Keywords: Uniform, One Law, Personal Laws, Developments, Constitution.
1 Subhranil Bhowmik, AN ANALYSIS OF UNIFORM CIVIL CODE, January 2023.
https://www.researchgate.net/publication/367021254_AN_ANALYSIS_OF_UNIFORM_CIVIL_CODE
● WHAT IS UNIFORM CIVIL CODE (UCC)?
The Word ‘Uniform’ refers to the rules which apply equally to everyone irrespective of their gender, sexual orientation, or religion. A proposal called the Uniform Civil Code seeks to create and administer personal laws in India that are equally applicable to all citizens, irrespective of their gender, sexual orientation, or religion. The Uniform Civil Code means uniform personal laws for all the people. Personal matters include divorce, marriage, maintenance, succession, inheritance, adoption etc2. The term ‘Uniform Civil Code’ is explicitly mentioned under Part IV Article 44 of the Constitution of India. Article 44 states, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”3
• HISTORY AND EVOLUTION OF PERSONAL LAWS AND UNIFORM CIVIL
CODE IN INDIA
UCC has always been a controversial and sensitive topic in India, the 2nd Law Commission Report of 1835 recommended that the codification should not extend to the personal laws and in the year 1958, Queen Victoria in her proclamation promised non-interference regarding the personal laws. During the early 19th century India’s colonial stage viewed the discussions regarding the Civil Code for the first time. In 1835, a report was submitted by the British Government to call for the codifications of Indian Laws for the standardisation of Indian law to ease the administration of justice4. Criminal Laws were codified and were amalgamated into one uniform code which was universally applicable. Meanwhile the community ordinances continued to govern Personal Laws.
Early in the 20th century, Hindu and Muslim personal laws were introduced with the intention of shielding family privacy from colonial governmental surveillance. When it comes to personal issues like marriage, adoption, upkeep, and even succession, men
2 Tanya Sharma,”Uniform Civil Code: A Detailed Analysis”, Volume 12, September 20.
http://www.penacclaims.com/wp-content/uploads/2020/09/Tanya-Sharma.pdf
3 INDIA CONST. ART 44.
4 Uniform Civil Code.
https://static.mygov.in/indiancc/2021/08/mygov-999999999733465943.pdf
have always been viewed as superior. In every sphere of life, discrimination against women persists. Religion, norms, and cultural practices (usage) were not something that the East India Company, and later the British Government, were interested in interfering with. Only when the leaders of their different religions took the initiative and applied pressure did they manage to get their hands on any of these territories. ❖ In 1772, Warren Hastings, the Governor General of India stated that the text of shastras will govern the Hindus, similarly the text of the Quran will be applicable to the Muslims. ❖ Lord Macaulay chaired the first Law Commission, which was established in
1834. On October 14, 1837, the Commission completed the drafting of the penal
code and delivered it to the Indian government. Once more, this had no effect on the personal laws, which were still based on the founding principles of the individual religions. ❖ The October 1840 Lex Loci Report emphasised the significance and need for consistency in the codification of Indian law, specifically in regards to contracts, evidence, and crimes. However, it also suggested that personal laws among Muslims and Hindus not be codified. 5 ❖ The 1859 Proclamation of the Queen guaranteed complete non-interference in matters of religion. ❖ The Hindu Law Committee, commonly referred to as the BN Rau Committee, was formed to investigate whether common Hindu laws are necessary. The Hindu Succession Act, 1956 was introduced in response to the committee's recommendations.
It covers Buddhists, Jains, and Sikhs, but it does not apply to Christians, Muslims, or Parsis, who are subject to other laws.
5 Uniform Civil Code.
https://dics.co/current-affairs/uniform-civil-codeupsc#:~:text=The%20idea%20of%20UCC%20was,century%20and%20early%2020th%20century.&text=The% 20BN%20Rau%20Committee%20
❖ The 42nd Constitutional Amendment Act added the word secular to the preamble. Secularism implies that no state is allowed to treat any religion unfairly. The Indian Constitution's articles 25 and 26 provide citizens the right to practise any religion they choose and the freedom to administer their own religious affairs. They are covered by fundamental rights.
● JUDGEMENTS THAT LED TO THE EVOLUTION OF UCC
❖ State of Bombay v. Narasu Appa Mali6: The High Court of Bombay had held in this case that the personal laws were not part of Laws in force under Article 13(1) and therefore outside the scope of judicial scrutiny. This judgement is yet to be overruled and holds valid even today. ❖ Mohd. Ahmed Khan v. Shah Bano Begum7 In the present case, the question of Section 125 of Code of Criminal Procedure, which talks about maintaining a wife by a husband, includes Muslims too. Therefore, even a Muslim woman is allowed maintenance but in case of Muslim Law earlier, it was only till the Iddat period, but if the wife is unable to maintain herself beyond Iddat she will be maintained beyond that by her husband unless she remarries or is able to maintain herself again. This was the first case wherein the courts spoke about UCC. ❖ Danial Latifi & Anr v.
Union of India8 In the present case, the court had reiterated the importance that a Muslim husband’s obligations to provide maintenance extend beyond the Iddat period too and they all will be governed by a secular law, Section 125 of Code of Criminal Procedure. The judgement emphasised the need for a Uniform Civil Code.
6 AIR 1952 Bom 84
7 1985 AIR 945
8 (2001) 7 SCC 740
❖ Ms. Jordan Diengdeh v. S.S. Chopra9 The case dealt with absence of provisions related to marriage and divorce laws, the court here emphasised the need of uniform laws related to separation, nullity of marriage, irretrievable breakdown of marriage and emphasised the importance of a Uniform Civil Code. ❖ Mrs. Mary Roy v. State of Kerala & Ors.10 This case was a landmark one, as it accorded equal rights to women in their father’s property that the Christian Women have an equal right in their father’s property. ❖ John Vallamottam & Anr. v. Union of India11 A priest from Kerala had filed a writ petition stating that Section 118 of Indian
Succession Act, 1925 was discriminatory. The bench struck down this Section and the court reiterated the importance of a Uniform Civil Code. ❖ Ahmedabad Women Action Group v. Union of India12 In the present case, a plethora of customs, laws, and practices were challenged of different religions and the court here ruled that it was not under the ambit of the court to bring about a social change but was the responsibility of the Government as such. ❖ Sarla Mudgal v. Union of India13 The Honourable Supreme Court in the present case held that the marriage must not be sole reason for the conversion to another religion but must be followed by other factors too and must not be to evade the legal obligations, however,
9 1985 AIR 935
10 1986 AIR 1011
11 (Writ Petition (civil) 242 of 1997)
12 AIR 1997, 3 SCC 573
13 AIR 1995 SC 1531
conversion for marriage is allowed. ❖ Shayara Bano v. Union of India14 The Supreme Court, with a 3:2 ratio, ruled that the practice of instant triple talaq/ Talaq-e-biddat as unconstitutional.
● CONSTITUTIONAL PERSPECTIVE
Articles 25–28 of the constitution of India provides religious freedoms to all religions and has made it possible to create personal laws that are appropriate for a person's culture and religion. However, personal laws frequently clash with other fundamental rights protected by Articles 14–15 and 21 on the pretext of religious freedom. Nearly every personal law expressly expresses gender discriminating elements in one form or another. Article 25: Freedom of Religion15: Freedom of conscience and free profession, practice and propagation of religion. All citizens have the right to the freedom of conscience, as well as the freedom to profess, practise, and spread their religion. The aforementioned liberties are contingent upon morality, public health, and order.
The State may enact laws that govern and prohibit any financial, economic, political, or other secular activity connected to any religious practice, according to this article's provision. This addresses social welfare and the reformation or public openness of Hindu religious institutions to all Hindu groups and socioeconomic classes. According to this clause, anyone who practices Buddhism, Jainism, or Sikhism is considered a Hindu, and Hindu institutions will be interpreted as such. Individuals who wear and carry a kirpan are considered part of the Sikh community and are believed to be practitioners of the religion. 16
14 AIR 2017 9 SCC 1 (SC)
15 INDIA CONST. Article 25.
16 Manish Siq, Religious Conversion in India, 12 May, 2023.
https://www.studyiq.com/articles/religious-conversion-in-india/#:~:text=S.,right%20to%20freedom%20of%20 religion.
Article 2617: Freedom to manage religious affairs: Subject to morality, health, and public order, this Article grants the following rights to every religious denomination: Article 26 deals with the freedom to manage religious affairs, grants religious subgroups the right to self-govern and control over their property so they can carry out their charity and religious activities without interference from third parties. This is a conditional right because religious denominations are not allowed to discriminate against any specific class of people or impose restrictions on an individual's freedom to practise the religion of their choice, among other provisions of the constitution. Individual rights shall not take precedence over denominational rights.
Article 2718: Freedom as to payment of taxes for promotion of any particular religion It has been stated in stated Article 27 of the Constitution that there cannot be taxes whose revenue is devoted to the maintenance and/or promotion of any certain religion or any denomination, Article 2819: Freedom as to attendance at religious instruction or religious worship in certain educational institutions This provision enables the spread of religious instruction by educational institutions that are supported by religious organisations. v This states that religious teaching cannot be offered in educational institutions under state control.
The aforementioned provision (that no religious instruction shall be provided) does not apply to educational institutions run by the State but that were founded under any endowment or trust that mandates that religious instruction be given at such institutions. v Attending any educational institution approved by the state or receiving state
17 INDIA CONST. Article 26.
18 INDIA CONST. Article 27.
19 INDIA CONST. Article 28.
funding does not obligate a person to engage in any religious instruction offered by the institution or to attend any religious services offered there unless the individual has granted permission to do so. When it comes to minors, the guardians ought to have approved the same.
• PORTUGUESE CIVIL CODE, 1867
The only state in India which has UCC in the form of common family law is Goa. Goa adopted the Portuguese Civil Code in the 19th century, and it wasn't replaced after its freedom and is still in effect today.20 Nevertheless, the code is not strictly a uniform code and has some shortcomings. For instance, under certain conditions outlined in the Codes of Usages and Customs of Gentile Hindus of Goa, Hindu men are entitled to bigamy (if the wife fails to produce a male kid by the age of 30 or if she fails to deliver a child by the age of 25). In other communities, polygamy is banned.
SPECIAL MARRIAGE ACT, 1954.
The Special Marriage Act, 1954 is a very important law and is of utmost importance today and though it addresses the problems of inter-religious marriages, the process is very cumbersome for the people and thus they often resort to the vicious circle of religious conversion because they find it much easier than this law.
● INTERNATIONAL CONVENTIONS
These conventions play a huge role as they especially since according to the World Bank, the percentage of female population as that of the total population was 48.41% in 2022.21 The Convention on Elimination of all forms of discrimination against women, and when talking about the UCC this convention plays a huge role as it is a bridge between the right to gender equality and the right to freedom of religion. Further, the International Covenant on Civil and Political Rights (ICCPR) and Universal
20 Uniform Civil Code - Challenges, Suggestions & Debate On UCC
https://byjus.com/free-ias-prep/need-for-a-uniform-civil-code-in-a-secularindia/#:~:text=The%20Portuguese%20Civil%20Code%20that,t%20replaced%20after%20its%20liberation.&tex t=The%20Uniform%20Civil%20Code%20in%20Goa%20is%20a%20progressive%20law,children%20(regardle ss%20of%20gender) 21Vishnu Aravind, Uniform Civil Code: What is the World’s take on UCC? July 18, 2023. https://organiser.org/2023/07/18/184355/bharat/uniform-civil-code-what-is-the-worlds-take-on-ucc/
Declaration of Human Rights (UDHR), play a vital role because these rights are not privileges but entitlements that flow from the equality that is accorded to all and the UCC will not only ensure equal rights to people of all religions but to people of all genders.22
● POLITICAL DIMENSION
With the 22nd Law Commission’s Report23, supporting the UCC, several political parties have viewed this as a political agenda of the Bharatiya Janata Party and thus have voiced their opinions against it and claimed this to be the political agenda of the party post the abrogation of Article 370 and construction of the Ram Mandir in Ayodhya. The major reason for the opposition by these parties is also their religionbased vote bank politics due to which many heads are opposed to the UCC. However, Arvind Kejriwal extended his support to bring the Uniform Civil Code. It has been used as a tool for political mobilisation.
● ROLE OF JUDICIARY
Right from the year, 1955 the honourable Supreme Court has always been in favour of a Uniform Civil Code and has time and again iterated for a implementation of the UCC and how there are certain aspects wherein people of different genders are not at an equal footing like those of their counterparts in the other religions.
● PROSPECTS FOR IMPLEMENTATION
The bringing about of the Uniform Civil Code is an extremely complex process in a diverse country like India. It is only step by step that this revolutionary Code can be brought forth, the release of a proper draft with due debates being undertaken on it and small reform in the irrational customs, laws can be brought and this will lay a groundwork on the implementation of this while also integrating the nation and bringing it.
22 Ibid 21
23 Law Commission of India, June 14, 2023.
https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/06/2023061446.pdf
Personal laws have become increasingly complex as a result of the nation's cultural variety. The main challenges for the lawmakers will be reaching an agreement and engaging in extensive debate. Personal laws are not well understood by many Indians, particularly those who reside in rural areas. To achieve compliance and successful implementation, a Uniform Civil Code would need to be implemented with more legal awareness and education.24 It is a very controversial and debatable concept. There exists a multiplicity of laws and thus to bring a uniform law will be one very long process.
CONCLUSION
The Indian Constitution is a living document which is constantly evolving with the rejiggering times. In today’s modern era of technology, the discrimination between people of different religions and sects is extremely harmful and the archaic stringent views on personal laws only serve to further this discrimination thus is a barrier to the holistic development and growth of the nation as a whole. The incorrect belief held by those opposed to UCC's implementation is that it breaches Article 25 of the Indian Constitution. In order to reduce the likelihood of granting advantage to a particular person, UCC will replace mixed personal laws. Preventing prejudices is one of UCC's primary goals. It would not require a Muslim to carry out Hindu rites, and vice versa; rather, it would regulate succession, marriage, and adoption without regard to a person's gender.
Its implementation will bring about equality for all and national integration and will additionally simplify seeking justice for all while also educating the masses about the uniform recourse available to all of them25.
24 Law Trend, UNIFORM CIVIL CODE CHALLENGES AND FUTURE, September 28, 2023.
https://lawtrend.in/uniform-civil-code-challenges-andfuture/#:~:text=Complexity%20of%20reform%20and%20lack,Personal%20Laws%20a%20complex%20net.
25 Uniform Civil Code
https://deliverypdf.ssrn.com/delivery.php?ID=12010611709100702907606408211801510605308709501905107 501006911810406408608609912402512012206011800502901012701509908011610211310305103707502707 600212301809310600206903708907809212511812306411606702908401706908402611306907202107511211 7083092123074003090&EXT=pdf&INDEX=TRUE