Sisyphean Approach Towards Implementation of Uniform Civil Code
Uniform Civil Code is one of the most controversial contemporary topics in the Indian political and legal storyline.
Introduction
Uniform Civil Code is one of the most controversial contemporary topics in the Indian political and legal storyline. When the Constitution of India was being adopted, the idea for the implementation of Uniform Civil Code was considered by the constituent assembly, but at that time retention of separate personal laws for separate communities was endorsed, as the makers of the Constitution were convinced that some more preparation is required in the minds of the people of the country before implementing the Uniform Civil Code.
Uniform Civil Code here refers to a solitary law which is applicable to all the citizens of India irrespective of their religion in their personal family matters of marriage, divorce, adoption, inheritance and custody. Article 44 of Part IV of the Indian Constitution[1] expects the State to administer or endeavour to secure a uniform code or set of rules while formulating policies for the secular State.
The institution of Uniform Civil Code is a perpetual point of discussion concerning the Indian Constitution’s directive to oust personal laws based on the traditions, customs and scriptures of every paramount religious community in India with a mutual set of rules governing every citizen.
The State of Goa has established a common family law, making it the only Indian State to have a Uniform Civil Code.
The demand for Uniform Civil Code took birth from the judgement pronounced in the Shah Bano case in 1985, more than three decades after India got its independence & adopted its Constitution.
Justice Kuldip Singh, in 1995, in the Sarla Mudgal case, reiterated the need for the Parliament to formulate a Uniform Civil Code, which would lead to national integration, by eradicating ideological & religious contradictions.
The recent events of 5th August 2019 of the abrogation of Article 370 from the Indian Constitution & of 9th November 2019 when the Ram Mandir, Ayodhya was declared to be no longer a dispute location by the Apex Court of the country, provide with fizzy speculations that legislation institutionalised on a Uniform Civil Code may be in the offing.
Also, most recently on 15th November 2019, the High Court of Delhi headed by a division bench of Chief Justice DN Patel & Justice C. Hari Shankar, heard petitions pertaining to Article 44.
Apart from this, the successful implementation of a Uniform Civil Code is among the electoral promises of the current ruling government.
Nevertheless, the operationalisation or implementation of a Uniform Civil Code in India seems like a bumpy ride owing to the numerous challenges in its way, majorly revolving around two issues, namely;
- Violation of Fundamental Rights granted under Article 25, Article 26 & Article 29 of the Constitution of India which gives birth to a fear of encroachment on religious freedom and
- Vast diversity of customary & personal laws & the concerning opposition from respective religious groups.
Indian Constitution & Uniform Civil Code
Hypothetically, a uniform Civil Code would provide an equal standing to all the citizens of the nation, irrespective of the religion or the community they belong to.
On the other hand, the personal laws of various religions prevalent in our country are massively differing with each other & inconsistent in the issues relating to marriage, divorce, custody, adoption or succession. To address this matter, Article 14 and Article 44 of the Indian Constitution[i] go hand in hand, aiming towards providing equal status to all the citizens of the nation, as also guaranteed by Article 14 of the Constitution. Hence, a Uniform Civil Code will lead to rationality, consistency and gender equality in matters concerning the personal laws and escort in some vital ameliorates.
The demand for Uniform Civil Code was first raised by the judgement pronounced in the case of Mohd. Ahmed Khan v. Shah Bano Begum[2]in 1985, where The Supreme Court observed that the issue was pertaining to the responsibility of a Muslim husband to maintain his divorced wife beyond the period of Iddat if she is not able to maintain herself on her own. The court also observed that Section 125 of the Criminal Procedure Code[3], 1973 imposes such an obligation on all husbands and is secular in character & applicable to all religions.
This judgement in the Shah Bano case also led to the enactment of the Muslim Women (Protection of Right on Divorce) Act, 1986.
However, even though Uniform Civil Code reinforces equality before the law, as also guaranteed by Article 14 of the Constitution, the idea of a uniform set of rules or a Uniform Civil Code for all citizens equally squares up with the right to freedom of religion as guaranteed by Article 25 of the Indian Constitution.[4]
The Uniform Civil Code could become an instrument to undermine the right to religion, subdue minorities & homogenise different cultures & religions, which is clashing with the right provided under Article 25 of the Constitution.
Reasons for Non-Implementation
India is a secular country comprising 1.25 billion people with a multiparty parliamentary system with its traditional, cultural, religious and linguistic edifice based on diversity across the country. Hence, the people have separate cultural, religious & regional identities and thus to protect these identities, the Constitution of India has provided protection in the form of Fundamental rights. On the other hand implementation of a Uniform Civil Code will give rise to the encroachment in the private or religious matters of the people by the government.
Some difficulties may arise in the practical implementation of a Uniform Civil Code as a single coloured codified law for all religions will lead to the creation of fuss and numerous legal questions among the people of the country as India has different laws for different communities and they all have variation in terms of culture, religion and region.
Further, the reason for the non-implementation of a Uniform Civil Code is more political rather than legal, as from the time of inception of this concept it has been used by political parties as a mere tool in the electoral process and the lack of political will even to bring this concept in public domain for discussion.
Conclusion
A Uniform Civil Code denotes an equal set of laws for all sections of society & it is said that for national unity, integrity and secularism, a Uniform Civil Code is a necessity as a plurality of laws and personal laws tend to create a threat to national integrity and solidarity.
The Indian Constitution under Article 44 of Part IV (DPSP) expects the State to administer or endeavour to secure a uniform code or set of rules while formulating policies for the secular State which would provide an equal standing to all the citizens of the nation, irrespective of the religion or the community they belong to, as also guaranteed by Article 14 of the Indian Constitution. But on the other hand, the Constitution of India guarantees religious and cultural freedoms to every citizen of India under Articles 25, 26 & 29 of Part III of the Constitution (Fundamental Rights), which could be vanquished or suppressed by the implementation of a Uniform Civil Code.
The stipulations for a Uniform Civil Code started from the land-mark judgements pronounced by the Apex court in the Shah Bano and Sarla Mudgal case, where the honourable court reiterated the need for the Parliament to adopt a Uniform Civil Code as it will lead to national integration and creating parity of laws for people of the country. Recently the talk for a Uniform Civil Code started when the NDA government came into power, as they had the issue of implementation of a Uniform civil code in their Manifesto.
In a country like India which is extremely diverse in nature, people have different sets of opinions for a Uniform Civil Code. Some are against it as they say that it will abridge their traditional, cultural and religious freedoms that have been provided by the constitution, but those people that are in favour of the implementation of a uniform code say that it will promote more harmony and national integration as people belonging to different religions sometimes create disorder of law on the basis of denomination, religion and culture & therefore to curb this disorder.
Once and for all, a Uniform Civil Code is needed because then there will be a single solitary law to govern all the citizens equally and the chances for such disputes will be minimal.
Although there is a need for the introduction and proper implementation of a Uniform Civil Code in India, due to certain sects in the nation are of the orthodox & fundamentalist mindset, they are not really convinced with the idea of uniformity in personal laws. Therefore, it puts a greater responsibility on the government to implement solidarity in-laws acknowledging the outlook of all the sects of this secular nation.
References
[1] The Constitution of India, art. 44
[2] AIR 1985 SC 945
[3] The Code of Criminal Procedure, 1973 (Act No. 2 OF 1974) s. 125.
[4] The Constitution of India, art. 25
Authored by: Anant Bajpai and Vridhi Sharma
Centre for Legal Studies, GIBS (Affiliated to GGSIPU)