UNIFORM CIVIL CODE
For any democratic nation, all the citizens are at par. Therefore it is essential to have common sets of laws governing personal matters like marriage, divorce, inheritance, succession, and adoption for all citizens, irrespective of their religious affiliations and beliefs. It is defined in our constitution under Article 44 of Directive Principles of State Policy. It states that it is the duty of the state to secure for the citizens a Uniform Civil Code (UCC) throughout the territory of India. In other words one country one rule.
In 1840, the British government had framed Uniform laws for crimes, evidence, and contracts but the personal laws of Hindus and Muslims were not touched by them intentionally.
The Constituent Assembly was set up to frame our Constitution in 1946 in independent India which consisted of both types of members: those who wanted to reform the society by adapting UCC like BR Ambedkar and others were basically Muslim members who wanted Muslim personal law to continue. The proponents were mainly opposed by the minority communities in the Constituent Assembly. As a result, one line is added to the Constitution under Article 44 in part IV of the Directive Principle of State Policy (DPSP). It states that “The State shall endeavour to secure for citizens UCC throughout the territory of India”.
A few years after the independence, a series of bills were passed to codify Hindu Laws in the form of the Marriage Act 1955, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act 1956, and Hindu Adoption and Maintenance Act 1956 are collectively known as Hindu Code bill (it also covers Buddhists, Sikhs, Jains as well as different religious denominations of Hindus) which allows right to divorce and inheritance to women, made caste irrelevant to marriage and abolished bigamy and polygamy. At that time, no attempt was made to change the personal laws of Muslims, Christians, and other minorities.
In the year 1985, the Supreme Court first directed the Parliament to frame UCC. This was when the famous Shah Bano case judgment was delivered by the Supreme Court (SC), which gave maintenance to Muslim women Shah Bano after she was divorced by her husband. But then the Rajiv Gandhi government, instead of working towards UCC, enacted the Muslim Women (Protection of Rights on Divorce) Act 1986 to nullify the SC judgment in the Shah Bano case, and let the Muslim Personal Law prevails in divorce matters.
In another case, a Hindu woman questioned whether a Hindu husband, married under Hindu law, by embracing Islam can solemnize the second marriage. The SC held that adapting Islam for second marriage is an abuse of Muslim Personal laws. A Hindu marriage can be dissolved under Hindu Marriage Act 1956, and thus converting to Islam for second marriage is offence under IPC.
In 1997, a Priest in Kerala filed a writ petition stating that Section 118 of the Indian Succession Act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by Will. The said section was struck by the SC declaring it to be unconstitutional. The SC bench further added in this case, that ‘Parliament is still to step in for framing UCC in the country. A common UCC will help the cause of national integration by removing the contradiction based on ideologies’.
The need for UCC is related to inconsistencies in Tax laws. Like in Hindu Undivided Families (HUF), they are exempted from taxes, whereas Muslims are exempted from paying stamp duty on gift deeds and also it deals with the problem of Honour killings by extra-constitutional setups like Khap Panchayat.
Now Article 25, and UCC are contradictory. Article 25 states ‘Freedom of conscience and profession, practice, and propagation of religion’. In reality, UCC is nothing but the incorporation of modern and progressive aspects of all existing personal laws which can not be ignored.
Pros of UCC
- To provide equal status to all citizens irrespective of religion, class, caste, gender, etc.
- To promote gender equality. UCC will bring both men and women to par.
- To accommodate the aspirations of the young population and to utilize their full potential for nation-building.
- All Indian citizens are equal before the court of law. That is the criminal laws and other civil laws are the same for all.
Cons of UCC
- Several communities, mainly minority communities perceive the UCC as an encroachment on their rights of religious freedom.
- In personal matters, interference of the state.
- Many minority communities fear that a UCC will allegedly impose a Hindu code on all.
The state of Goa, after independence from Portuguese rule, adopted the Portuguese Civil Code which enforced a UCC for all its citizens. Under this code, a married couple holds joint ownership in all assets owned and acquired by each spouse. Even parents can not disinherit their children entirely, at least half of the property must be passed to them. Muslim persons who have registered their marriage in Goa are not allowed to practice polygamy.
The problem with UCC is that it is being thought of by a BJP government led by PM Modi. Presently most of the opposition parties like Congress, NCP, TMC, SP, Communists and many more are opposing PM/BJP on whatever they do.
In the end, the ideal state UCC would be an ideal safeguard of the rights of citizens. The adaption of UCC will be progressive legislation. With the changing times and trends prevailing in the nation, there is a need for a UCC for all citizens, irrespective of religion, ensuring that their fundamental and Constitutional rights are protected. It is going to long battle ahead.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
29th June 2023