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Uniform Civil Code in India



Introduction

What happens when one demands a Moon?

The uniform civil code (UCC) in India tenders to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen. The Code, if implemented, will work towards streamlining personal laws that are segregated at present based on religious beliefs like the Hindu Law, Shariat Law, and others, and the same civil law will apply to all citizens irrespective of their faith.


The relevance of the History

The Shah Bano Case

While talking about History, we could throw light to a possible historic opportunity that the Rajiv Gandhi Government had to make substantial changes to the position and status of Muslim women. This belongs to the famously known as the Shah Bano case of 1985.

An extract of the Shah Bano[1] judgement observed the following;

The idea of configuring a Uniform Civil Code for the country is not being evidenced yet. A belief that the Muslim community should take a lead in the matter of reforms of their law seems to be prevailing. Common civil code could boost national integration by taking-off obscure loyalties to laws which have conflicting ideologies. Well, no community is likely to attempt or agree by making gratuitous negotiations on this issue.

Also, in Lily Thomas v. Union of India and Others[2], Centre could not be directed to present a Uniform Civil Code, but that did not prevent the Supreme Court from affirming the judiciousness of such a code and this time with regards to Succession.


Will the UCC oust customs and practices of marriage and divorce, succession and adoption? Will it destroy the diversity of our nation and violate Article 25 of the Constitution that guarantees the right to practice one’s religion? Will positive features be drawn from each personal law if a UCC is implemented? Will it be an egalitarian law and freedom of religion.

Ambedkar has vigorously argued for a Uniform Civil Code as a secularizing device, designed to get rid of Hindu Law and of “tradition” altogether. Ambedkar’s project of Uniformity and modernity failed because the Indian leadership under Nehru realized that uniformity could not be dictated by the stroke of a pen. In 1950 the Uniform Civil Code was put on hold and instead, as a future agenda item, one of the many Directive Principles of State Policy was planted as Article 44 into the Constitution[3]. The Directive stated that “the state shall attempt to safeguard for the citizens a Uniform Civil Code throughout the territory of India”.


But what did and do such words mean? A phrase like “state shall attempt to secure” reads like an admission that uniformization would be a very difficult process, with no clear agenda given beyond the eventual aim of greater uniformity. Looks like it has been purposely left vague, neither time-bound nor clearly defined. Many authors have viewed this as a provision that has no hope of being implemented i.e. “no more than a distant mirage. Leading secularity focused legal scholars of India, even today, view these words of Article 44 as a binding program for action[4].

The question that nears in the present-day circumstance is that, whether India as a law-based and common state, will go on supporting ethnic and religious minorities to hold their standard Laws or order a uniform civil code? Dr B.R. Ambedkar, the Chairman of the Drafting Committee, noticed that, if such a provident clause was introduced into the constitution, it would devitalize the law-making bodies in India from establishing any social measure at all. People would not be in favour to consider that the personal laws shall be abandoned from the locale of the state. States are not compelled to do away with individual laws. Yet, putting the matter in a rundown of Directive Principles of State Policy instead of including it among the Fundamental rights, was a trade-off that appeared to fulfil all[5].

Another problem with UCC is that people aren’t aware of the provisions it will cover, how it will impact the existing laws of the various communities, including the laws of the majority community. People seem to believe that, the Uniform Civil Code will affect only Muslims and Christians[6]. What will happen to the provision of the Hindu Undivided Family that is being used for tax benefits? Will it still be a UCC, if the Hindu Undivided Family reserves such benefits?

Faizan Mustafa suggests a community-specific approach to cope with the existing gaps in the realm of personal laws. He (Faizan) suggests that a committee should be appointed to look into these questions. According to him, based on the prevalent practices in India, just laws would be preferred over a UCC. For instance, in the Hindu Succession Act, a son and daughter get an equal share in a property, which is an improvement on Muslim Law where the daughter gets only half the share. The Hindu Law allows a father to will his share in favour of his son leaving nothing for the daughter. The Muslim law restricts a man from making a will of more than 1/3rd of his property and he cannot make a will in favour of his male heir[7].

Yes, the real impact of the UCC will surely fall on those of the other religions and communities[8]. The minorities who have been safeguarding their respective traditions and mannerism within the directives of their holy books, religious practices and common law, formulated through practices, rituals and precedents, the real fear among them could be, the very special identities they have struggled to maintain in the last several centuries will now be brushed away into a uniform ground, to which everyone must adhere.

Faizan points out the forgotten issue about non-implementation of other Directive Principles which are far more important than the enactment of a uniform code[9]. None of the directive principles (e.g. articles 46, 39, 49 etc.) that are drafted with much more stress than UCC is compiled with, in such a situation, the urge to impose UCC on an unwilling majority is being driven by the partisan politics[10].


Some general arguments ‘For’ and ‘Against’ the enforcement of UCC

The Uniform Civil Code would bring in all the personal laws governing matters like marriage, divorce, adoption, inheritance, succession to property etc. under a single roof and creates a place for the practices of all communities in a just manner and incorporates the values and ideals of humanism.

It is commonly observed that personal laws of almost all religions are discriminatory towards women. The orthodoxy of a patriarch is seen in matters of succession and inheritance when men are given upper preferential status. UCC will promote gender parity and would bring both men and women at par.

The one common argument given by all political parties highlighting their disinclination to implement the Uniform Civil Code is that implementing Article 44 offends the rights of Indians provided under Article 25 i.e., “Freedom of conscience and free profession, practice and propagation of religion.” A counterargument could be that Clause 2 of Article 25 indicates that this article shall not sway the detail of any existing law[11].

In a consultation paper on Reform of Family Law[12], the commission has observed, that discriminatory laws have been previously dealt with and it would be a hasty decision to administer a UCC which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination but is indicative of a wholesome democracy.

The commission has encouraged that, instead of relegating with differences in the personal laws, certain aspects of these personal laws could be codified and amendments to the existing family laws to tackle discrimination and inequality could be made


Noteworthy Recommendations for Religion Specific Laws w.r.t. Succession and Inheritance laws.



Hindu Law

Testamentary and Inheritance laws should be amended so that married men and women stand on equal footing in such matters. Presently, the husband’s relatives have prior claim over a married woman’s intestate property, compared to her parents and siblings. On the other hand, the scheme of intestate succession does not affect the marital status of a man w.r.t. property. The Hindu Succession (Amendment) Act, 2005, refashioned rules on coparcenary property, giving daughters of the deceased equal rights with sons, and subjugating them to the same liabilities and disabilities. The amendment promotes equal rights between males and females in the legal system[13].

The commission observed that even after women were recognized as coparceners, the law continues to be fleshy with inherent lacunae. Provision of tenancy-in-common was encouraged instead of ‘joint tenancy’ to address the issue of right in a property by birth.


Muslim Law

The Implementation of Uniform Civil Code would lead to certain drastic changes in the Muslim Law, i.e. codified law would be demanded in the context of rules of inheritance and succession, establishing a stable structure of share to govern the sharing procedure and illegitimate as well as adoptive children would be a part to a share in the father’s property.

Instead, the commission suggests for a Codified Inheritance Law: Muslim Code of Inheritance and Succession, applicable to both the Sunnis and the Shias may be articulated for the sake of clarity. This will embrace the abolition of the Muslim Personal Law (Shariat) Application Act, 1939.



Parsi Law

Under the present system, Parsi women who marry outside the community are cast out of the community and consequently also forfeit their inheritance rights. Taking a stand against such practices, the commission has stated,

“The very idea that upon marriage a woman must discard her religious or social identity and adopt only that of her husband goes against the idea of equal partnership in marriage. Women should have a right to follow their customs, rites and rituals and also women should be under no obligation to give up their maternal and paternal surname.”


Conclusion

There is no reason to fidget with for what has not been touched since centuries. Amendments to a community’s personal law to bring about changes for its betterment is one thing, but to horse around with the enactment with the sole purpose of introducing uniformity is quite another. Further, the plural democracy is an identity of the modern India and efforts should be focused on harmony in plurality rather than blanket uniformity for thriving Indian Democracy Religions have nothing to do with gender, we could deal it legally. Ambedkar also states that, if the Uniform Civil Code is to be considered, it should be purely voluntary, and it should be only after fears of the minorities are alleged. This does not mean that one just foists or impose UCC because one particular party comes to power with an overwhelming majority. I would take a position that says, it depends upon the governments urge to implement it. In our country religion is considered to be sacred and a sentimental issue and so the government has to be sure before taking any such steps ahead. I would recommend, piecemeal reforms should be the way forward.



[1] Mohd. Ahmed Khan v. Shah Bano Begum and Ors on 23 April (1985) SCR (3) 844}

[2] Lily Thomas, etc. v. Union of India & Ors on 5 April, (2000) 6 SCC 224

[3] The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda, Werner Menski, German Law Journal, [Vol. 09 No. 3 2008]

[4] Ibid

[5] <http://reseacrh gate/ publication/ Understanding Uniform Civil Code and its problem in Implementation/ September 2019/>

[6] Uniform Civil Code- a Muslim point of view, Zafarul-Islam Khan, The Milli Gazette, Sep 23, 2019

[7] <http://outlookindia/magazine/story/India-news-One Nation, One Legislation: After article 370, Uniform Civil Code next BJP’s next? How will it impact you?/>?

[8] Ibid pp.2, The Uniform Civil Code Debate.

[9] <http:/The Hindu/opinion/ The Progressive Way, Faizan Mustafa, September 17, 2018/>

[10] Ibid pp.3, 7

[11] Uniform Civil Code (Article 44 of the Constitution) A Dead Letter, Shabbeer Ahmed and Shabeer Ahmed, The Indian Journal of Political Science, Vol.67, No.3 (July-Sept 2006), pp. 545-552

[12] Law Commission of India, Consultation Paper on Reform of Family Law, 31 August 2018

[13] <http://thehinducentre/ publications/ issue brief no.10/ Uniform Civil Code: The Importance of an Inclusive and Voluntary approach/>


Author Details: Mihir Popat (Jindal Global Law School, O.P. Jindal Global University)

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