Uniform Civil Code: An Experiment with a Billion Lives
An Essay on "Uniform Civil Code: An Experiment with a Billion Lives" expounds that the application of the Uniform Civil Code(UCC) can never be accomplished without taking the interests of all the organizations at risk into mind, which puts to rest the political viability arguments.
An Essay on "Uniform Civil Code: An Experiment with a Billion Lives" by Vidit Baya expounds that the application of the Uniform Civil Code(UCC) can never be accomplished without taking the interests of all the organizations at risk into mind, which puts to rest the political viability arguments. The author's focal point of discussion is that the Uniform Civil Code can actually promote gender equality and women's empowerment, particularly in communities of minority religions. The Bharatiya Janata Party's third major promise, the Uniform Civil Code, is now gaining support after two of the core promises — the repeal of Article 370 and the resolution of the Ram Mandir controversy — were fulfilled (UCC). The BJP has consistently and unwaveringly been a staunch supporter of the UCC. In fact, the topic was covered in the saffron party's election platform in 2019, and it might come up again in the 2024 election.
The heated argument over the hijab has repeatedly highlighted the requirement for an Indian Uniform Civil Code. It is being discussed as if the UCC were a divisive and social issue, which it is not. Additionally, it is claimed that if it is put into practice, Hindus will benefit at the expense of Muslims, which is obviously untrue! The All-India Muslim Personal Law Board has called many state governments and the Center's attempts to adopt the UCC in India "unconstitutional and anti-minorities" (AIMPLB). It is the author's outcry that UCC should only be viewed from the standpoint of giving all beings, including women, "equal" and "inalienable" rights.
The author contemplates certain judgments through which India's courts have pressed succeeding governments to apply the UCC. In 1985, 1995, 2015, and eventually in 2017 when they rendered their decision in the triple talaq case, they addressed this issue. It is absurd for one country to have two distinct sets of laws depending on religion. The UCC, which the Modi government introduced, signals the end of India's overtly discriminatory statute.
Introduction
Article 44 (Part IV) of the Constitution states:
"The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India".
The Constitution authorizes the legislature the responsibility of enforcing a UCC throughout the nation. Article 44 is not upholdable in court like fundamental rights because it is a Directive Principles of State Policy (DPSP). Article 44 is essential to the central government or the Government of India in order to build a democratic and equitable state.
For an exceptionally long time, people and policymakers have debated whether the Uniform Civil Code is appropriate and, most importantly, whether required in a diverse country like India. The Bharatiya Janata Party (BJP) has continuously supported the Uniform Civil Code to carry out the Constitution's principles.
Instead, it is waiting for the Parliament to pass legislation creating a uniform civil code. The architects of the Constitution of India sought to lead all citizens progressively & voluntarily towards a unified legal code in the long term.
The optimism espoused in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope. This is a snippet from a notable Delhi High Court judgment, in which the judicial system has once again emphasized the significance of having a Uniform Civil Code (UCC) in India. As a result, the discussion and considerations about the requirement for the universal administration and regulation of personal doctrines have been restarted.
The Uniform Civil Code(UCC)
Rendering common belief, the UCC will abolish personal legislation. The BJP's UCC supporters consider it a vital element toward equality of the sexes. This is a disguised allusion to personal constitutional provisions that have not evolved with the circumstances.
According to a report published in the Wire, Hindu succession and divorce rules can now be referred to as gender just because the Hindu law has been revised since the Hindu Code changes of the 1950s. In contrast, Muslim personal legislation provided women with much better treatment than conventional Hindu law. However, due to the Hindu Code reforms, which culminated in the 2005 amendments to the Hindu Succession Act, Muslim personal regulations are now lagging behind Hindu law regarding gender equality with respect to the law of succession.
While it is good to see laws being changed to promote gender justice, argumentative commentators have not tackled the shape of the new UCC.
What must happen for our laws to be gender-just? Equal rights to property ownership, separation(divorce), support, and parenthood(adoption) are undoubtedly a fine place to start, but they are insufficient to accomplish gender equity. These only pertain to changes to personal legal systems.
It is important to understand that this request for a standard civil code is a constitutional demand for fairness in all spheres of life. The proposed UCC would only be effective if it actually replaced the current civil code and wasn't merely a list of rights.
Why don't we have the Uniform Civil Code Yet?
The UCC wasn't adopted when India's legislation (constitution) was being drafted in 1948, as reaching an agreement within such a diversified nation as India, which was made up of many different races, faiths, and social hierarchies, was challenging. We had a legal system based on personal laws that were formed, taking religious ideas, sentiments, and customs into mind since our laws reflected this diversity.
Furthermore, combining such a heterogeneous nation under the premise of "One Nation, One Law" was difficult because devout and conventional Hindus and fundamentalist Muslims wanted the Shastras and Sharia to govern personal legislations, respectively. A UCC was seen as a threat to religious freedom by clerics who believed it would undermine their power. They also saw it as a potential catalyst for societal upheaval. As a result, the clause was made optional by the drafting committee of the Indian Constitution. Therefore, while India's criminal laws are universal and apply to everyone equally, regardless of their religious beliefs, its civil laws are affected by and descended from religion.
Even after seven decades, there is still controversy about the UCC. The All-India Muslim Personal Law Board (AIMPLB), an organization run by clerics, has the authority to create new laws for Muslim women. In order to maintain India's segregation and foster polarity, the British fostered its formation. They did this by employing the infamous divide-and-rule tactic. Given that it would create myth and separation among groups if different communities had different rules, which was advantageous to the colonizers.
Regrettably, even after freedom, this scenario persisted. Although Dr. Ambedkar was the UCC's largest supporter, the constitution's forefathers foresaw civil unrest if it was put into place because Muslims who remained in India after the partition would feel uneasy if the code was applied right away after independence. The BJP pledged in its campaign of 2019 to incorporate the best parts of personal legislation culled from other religions. A government with a substantial majority has been in power in the nation for eight years, but it has not yet been able to come to an agreement on when or how to implement it.
A Viable Legislation
Critics argue that the UCC is a move against secularism since it targets Muslims in India and is an attempt to impose the values of the majority Hindu population on minorities. They contend that because personal rules are rooted in religious texts, doing so is unwise because it can lead to conflict amongst groups. Contrarily, the measure supporters believe it to be progressive legislation that will empower women and marginalized religious communities while bringing about uniformity and eliminating inequities.
All current codified personal laws will likely be repealed with the implementation of the UCC and replaced with a single, global law. Additionally, personal laws frequently conflict and lack consistency. The UCC will assist in resolving this matter.
However, the preamble of the Indian Constitution declares that India is a republican, democratic secular state. A secular state is prohibited from discriminating against anyone based on their religion because "religion pertains to the relationship between man and God," which means that India is not a theocratic state. Thus, India is able to enact such a code because it won't interfere with the freedom to practice one's preferred religion.
International Civil Codes
According to an article by First Post, Romans, who created a system tailored to Roman practices and known as "Jus Civile," are directly responsible for the theory of civil law. This stood in contrast to laws formed from universal norms, known as "jus gentium," or laws that deviated from the fundamental notions of right and wrong that are inherent in the human mind, known as "jus naturale."
The Napoleon Civil Code of France is one of the most advanced civil codes in the world because it sought a balance between privilege and equality, conventions, and legal duties. UCC is widely used in France, the United Kingdom, the United States, and Australia. However, it is absent from Kenya, Pakistan, Italy, South Africa, Nigeria, and Greece.
Although Sharia law has historically been applied in the majority of Islamic nations, this legislation has been changed or replaced by laws based on European patterns. Islamic nations, including Turkey, Tunisia, Morocco, Egypt, Jordan, etc., have codified personal laws in accordance with their needs, such as outlawing polygamy or triple talaq, to prevent abuse. We must question ourselves, if Muslim nations can do away with medieval laws and Western democracies can adhere to a universal civil code, why are Indians still subject to rules enacted before independence?
One Nation, One Law
A popular feminist Aparna Mahanta said,
"The failure of the Indian state to provide a Uniform Civil Code consistent with its democratic, secular, and socialist declarations further illustrates the modern state's accommodation of the traditional interests of a patriarchal society."
In a report by First Post, Professor Paula Banerjee remarked that this was done to ensure that it would never be discussed again. Later, Nehru expressed that a UCC was a necessity, but he did not want it to be forced upon any community, especially if they weren't ready for it. In contrast, the Hindu community was never even consulted, let alone reached concurrence.
The First Law Commission, led by Lord Macaulay, established the Lex Loci Report (1837), which highlighted India's legal confusion and volatility. The Nehruvian administration delayed taking action to put the UCC into effect after India gained its independence because of fear—real or imagined—of alienating the Muslim population, despite passing the Hindu Code Bill. Instead, the UCC was included in the Constitution's list of Directive Principles.
The governing bodies of Muslim personal legislation have sole authority over all aspects of Muslim personal law. This explains why outdated traditions like female genital mutilation (FGM), triple talaq, and nikah halala continue to be used. Only half of the inheritance that sons are entitled to go to daughters.
Shah Bano Case(1985)
The Mohd. Ahmad Khan v. Shah Bano Begum & Ors., also known as the Shah Bano maintenance case, is regarded as one of the key court cases in the struggle to safeguard Muslim women's rights. Even though the Supreme decided on the right to alimony in the case, the decision sparked a political storm and raised questions about how much court intervention is appropriate in Muslim personal law. The Shayara Bano case, in which the Supreme Court declared the practice of instant triple talaq illegal, serves as the most recent illustration of Muslim women's ongoing struggle for equal rights in marriage and divorce proceedings in civil courts.
Daniel Latifi Case(2001)
On the basis that it broke Articles 14 and 15, as well as Article 21, of the Indian Constitution, the Muslim Woman's Act (MVA) was challenged. The Apex Court stipulated that pronouncing the aforementioned constitutional law would supplement Section 125 of the Indian Criminal Code. This would guarantee that a wife would receive enough money during her 'Iddat' period to support her and provide for her future.
Conclusion
The Uniform Civil Code clause was enacted in what initially appeared to be a relatively benign accommodation, but it started to become contentious in the 1980s. The UCC and personal laws have been played about by all political regimes throughout history. A new legal framework that redefines who is and is not allowed to participate in the future society's collective political morality has shattered the basic foundation of legal citizenship and minority rights. The Citizenship Amendment Act is one example (2019). In conclusion, while all previous regimes made changes to the UCC, the current one's actions are practically oriented in nature, and the idea of weaponization of the clause is based on their alleged dominant totalitarian philosophy as opposed to India, a pluralistic and deeply diverse nation that seems preposterous.
References
[1] Civil Code and Government Stance, Available Here
[2] Why Uniform Civil Code is at a critical inflection point?, Available Here
[3] Can India's BJP make a uniform civil code a reality?, Available Here
[4] As clamour for UCC rises, here's what you need to know about Uniform Civil Code, Available Here
[5] UCC: The coming storm over a single common law in India, Available Here
[6] Mohd. Ahmad Khan v. Shah Bano Begum, 1985 (3) SCR 844
[7] Uniform Civil Code for a more equal India, Available Here
[8] Uniform Civil Code: One nation, two different sets of rules based on religion is an oxymoron, Available Here
[9] Manoj Karki, Uniform Civil Code is as old as British rule, Available Here
[10] Bindu Dalmia, Available Here
[11] The Goa civil code, the new model for a uniform civil code, Available Here
[12] How to make a Uniform Civil Code, Available Here
[13] Uniform Civil Code Can End Systemic Discrimination under Personal Laws, Available Here
References
Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams