Initiative Towards Inclusive India
In this article 'Initiative Towards Inclusive India', we deep dive into the uniform civil code's applications and its significance throughout the history of India with a judicial overview of Article 44 of the constitution of India and various criticism and solutions towards the implementation of the Uniform civil code.
In this article 'Initiative Towards Inclusive India', we deep dive into the uniform civil code's applications and its significance throughout the history of India with a judicial overview of Article 44 of the constitution of India and various criticism and solutions towards the implementation of the Uniform civil code. Initiative Towards Inclusive India One of our founding fathers of the Indian Constitution, Dr. B.R. Ambedkar said, "We have uniform & complete criminal code...
In this article 'Initiative Towards Inclusive India', we deep dive into the uniform civil code's applications and its significance throughout the history of India with a judicial overview of Article 44 of the constitution of India and various criticism and solutions towards the implementation of the Uniform civil code.
Initiative Towards Inclusive India
One of our founding fathers of the Indian Constitution, Dr. B.R. Ambedkar said,
"We have uniform & complete criminal code throughout the country, which is contained in penal code and criminal procedure code. The sole province in the civil law that has not been able to invade so far is marriage & succession. This tiny province which we've not been ready to invade so far",
and to this day it still holds up and has been at the center of political narrative and debate for over a century.
Historical Perspective
Article 44 of the Indian Constitution states [i]"Uniform civil code for citizens. – The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." It is one of the important parts of our Constitution, but it is non-enforceable. But it successfully creates an indirect duty on the state to enact a uniform civil code throughout the Indian Territory without any discrimination.
In the 2nd law commission report during 1835, it was stressed that there is a need for codification of Indian law relating to crimes, contracts but it also recommended that codification should not extend to personal laws of Hindus and Muslims because they derive authority from their respective religions. Later in 1858, Queen Victoria promised that absolute non-interference in religious and personal matters will be taken care of.
Britishers believed that for a colonial power it is wise to stay away from areas related to personal customs and religion. With the passage of time, some influential Hindus started questioning for removal of those practices which deny fundamental rights and freedom to women and different parts of the community. At that time few were deprived of rights of inheritance, remarriage, and divorce. They demanded uniform law to rectify the errors of rigid discriminatory society.
Soon many codified laws were made concerning Hindu personal laws and the rest of religions were exempted because they denied any such deviation from customs & beliefs. Some of the codified laws were the Hindu Widow Remarriage Act, Married Women's Property Act, Hindu Inheritance (Removal of Disabilities) Act, and Hindu Women's Right to Property Act.
There was a major step taken in 1941 when a parliamentary committee was formed, and it was headed by Mr. Benegal Narsing Rau. He was an Indian civil servant and an eminent jurist, who played a very crucial role in the drafting of the constitution. Officially this committee was named as Hindu Law Committee, and it was tasked to examine the necessity of common Hindu personal laws. This committee recommended a consistent codified Hindu law that might provide equal rights to women as per the modern trends of society.
But Hindu Code Bill lapsed when presented in parliament and it was resubmitted in 1952. It resulted in the fragmentation of the Hindu Code Bill and the provisions were passed separately in different parts. They were The Hindu Marriage Bill Act in 1955, The Hindu Succession Act in 1956, The Hindu Minority and Guardianship Act in 1956, The Hindu Adoption and Maintenance Act, 1956.
One of the eminent activists of India, Shri Aparna Mahanta has said "failure of the democratic Indian state to provide a uniform civil code, consistent with its democratic secular and socialist declarations, further illustrates the ultra-modern state's accommodation of the traditional interests of a patriarchal society", and with the passage of time and the increase in complexities concerned with a huge pile of cases, Our Judiciary always brings the attention of legislature towards uniformity of laws in personal matters like marriage, succession, etc.
Judicial Perspective
In the case of Minerva Mills Ltd. & Ors v. Union of India & Ors, 1980 AIR 1789, the Supreme Court held that to the extent of the basic feature of the Indian Constitution lies an efficient harmony between fundamental rights and directive principles. In another landmark case of Mohd. Ahmed Khan v. Shah Bano Begum & Ors, 1985 AIR 945, Chief Justice Y.V Chandrachud emphasized that our parliament should mould uniform and common laws related to personal matters and it will reflect the true essence of oneness and equality before the law.
Supreme Court said that it is a matter of deep regret that Article 44 has remained a dead letter for parliament. A common civil code will surely help the cause of national integration by gradually eradicating disparate loyalties to laws that have conflicting ideologies. This case dealt with the issues of maintenance to the wife and its dilemmas with religious laws.
In the case of Sarla Mudgal v. Union of India, AIR 1995 SC 1531, the Supreme court has directed the Prime Minister to take a fresh look at Article 44 which says the state to secure a uniform code which, according to the court is useful for both protection of oppressed and promotion of national integrity.
The division bench of Kuldip Singh J. & R.M Sahai J. in their separate judgments held that since 1950 none of the government made any significant efforts towards implementing constitutional mandate under Article 44 of the Indian Constitution. This particular article is based upon the concept that there is no necessary correlation between religion and personal laws in a civilized society. Marriages, succession-like matters are secular and can be regulated by uniformed laws.
Similarly, in the case of John Vallamattom & Anr v. Union Of India, AIR 2003 SC 2902, a three-judge bench of SC, has once again expressed regret for the non-enactment of the common civil code. In the case of Seema vs. Ashwani Kumar, the Supreme Court held that all marriages irrespective of their religion must be compulsorily registered as per the prescribed rules and it can be the first step towards a uniform civil code.
In the case of ABC v. the State (NCT of Delhi), 2015 SCC 609, it was decided on July 6, 2015, the court dealt with the issue of guardianship of a Christian mother without the consent of the child's father. The court said we must understand that our Directive Principles envision the existence of a uniform civil code but this remains an unaddressed constitutional expectation from parliament.
Similarly, in numerous other instances, the judiciary always emphasized the need for uniform laws in personal matters because eventually, it will bridge the gap of unwanted quarrels due to complexities. Thus Supreme Court of India, over time mentioned the need for Uniform Civil Code to make personal laws functional without any confusion.
What's the current situation?
Uniform Civil Code in India is misunderstood by a majority of people. Mainly when it deals with such a diverse country like India, it becomes tough to fulfil the demand of each & every community. It can be a possibility in India only through an evolutionary process by taking care of cultural heritage and ancient beliefs. Another requirement is perfect sync with modern-day requirements which changes with time.
This is a perfect example to understand the dynamic characteristic of law. Involvement of state is crucial but the reform must start within communities to show a positive approach towards changes. We can take the example of Goa, how it is prospering as a state and already having uniform civil laws. Every resident of Goa is governed by common & uniform civil law concerned with marriage, succession, and divorce.
To bring public conscience in favour of uninformed civil law, first, we have to make the general public aware of the benefits of such law e.g. equal status to every citizen, promotion of gender equality, enhanced feeling of unity and inclusive behaviour, eradication of discriminatory personal laws, initiation of reforms in modern society. Thus it will truly bring the nation together.
Nationalism is a huge term when it is concerned with the feelings of 1.3 billion people. Every particular element of nationalism is revolving around the population that comprises the nation. So to have a sense of collective belongingness we have to focus on the factors which are familiar to everyone in their day-to-day life. Codification and implementation of the Uniform civil code in India completely depend upon the voluntary involvement of people to create a suitable environment of initiation.
We need sincere efforts towards women's empowerment because personal law creates hurdles in the development of women in society. Many institutions should come forward to participate in public awareness programs for educating the masses about the benefits of unified civil laws. Modernized and democratized institutions are the primary requirements for such a humongous change in public policy. It should focus on carrying the plural democracy of India without imposing a blanket of soulless uniformity.
Conclusion
All together we need a collaborative approach towards building trust. Step by step or brick by brick construction will strengthen the trust of people. Through UCC, we can easily create a pan-India impact on the lives of the public. Every such step taken by the government of India must respect the basic structure of the Indian Constitution. It should uphold the values concerned with freedom of religion and belief, secular approach towards people of India, and unity & integrity of the nation.
India has to approach UCC faster than before because the period of transformation will take some time to settle, and we need to work towards the harmonious coexistence of various communities.
Author(s): Shivek Singh and Ayush Mishra
They're from Amity law school Haryana. Their article 'Initiative towards Inclusive India' gives an in-depth understanding of the uniform civil code's applications and its significance throughout the history of India with a judicial overview of article 44 of the constitution of India and various criticism and solutions towards the implementation of UCC.