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September 28, 2016

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Uniform Civil Code: Need of the hour


- Amit K Vyas, Vice President - Legal [ Mahyco ]

amit-k-vyas

The ruling Govt must make it clear to the people of India that UCC is a dire necessity for the protection of women’s rights and fostering equality before the law. The UCC should carve a balance between protection of fundamental rights and religious dogmas of individuals.

Genesis

In the simplest of terms, ‘Uniform Civil Code’ (hereinafter referred to as ‘UCC’) means administration of the same set of secular civil laws to govern all Indian citizens, irrespective of their religion, caste or creed, community, sect or region. The common areas covered by a civil code include the rights related to acquisition and administration of property, marriage, divorce, adoption etc. India has separate sets of personal laws for each religion governing the said areas. In practical realm, any right thinking Indian is compelled to question the non implementation of the UCC when confronted with following types of behaviour:

  • Arbitrary and ruthless one-sided divorcing of a wife as per the whims and moods of a male by simply reciting ‘talaq’ three times loudly;
  • A Hindu husband converting into Islam to get married a second time without entailing the penal provisions of bigamy;
  • Denial of property and other rights to women by citing some archaic religious book;
  • Excommunication and denial of rights to a person who does not choose to follow a religious doctrine? Or who marries a person from another religion?
  • A rich person marrying four times and deliberately having lots of children to increase the number of members of his community;
  • A community deliberately and intentionally not following the family planning programmes of the Govt, on the grounds of religious beliefs, which require them to increase numbers of their community;
  • Directing persons of a community to not invest in Bonds/Debt instruments carrying interest, on grounds that it is forbidden (haraam) to advance money on interest?

‘UCC’:- What does the Constitution stipulate?

Article 44 of the Indian Constitution states - “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”. This provision is a part of the Directive Principles of State Policy. Directive Principles are not enforceable on the same basis as Fundamental rights by any High Court or the Supreme Court but, Article 37 of the Constitution also stipulates that the government is duty-bound to apply them in making laws.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them. No religion permits deliberate distortion.

It simply means that religion should not interfere with the mundane life of an individual.

Important SC rulings on the aspect of introduction of UCC

S.No. Title/citation of the SC Case law Ratio of the SC decision

1

Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844 (The famous Shah Bano case)

The first prominent case founded on Article 14 was Shah Bano (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else. Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling. The Act allowed maintenance to a divorced woman only during the eriod of iddat, or for 90 days after divorce, according to provisions of Islamic law, but in stark contrast to general provisions under the CrPC.

“A common civil code will help the cause of national integration by removing disparate loyalties to law which having conflicting ideologies,” Hon’ble CJI YV Chandrachud.

2

Danial Latifi vs Union of India 2001 AIR 3958

The Supreme Court upheld the Act in so far as it confined the time period of maintenance to the iddat period, but held that the quantum of maintenance must be “reasonable and fair”, and therefore, last her a lifetime. In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.

3

Githa Hariharan vs. RBI AIR 1999

The Apex court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances. The court held that the interest of the child was paramount, and that the letter of law would not override this aspect. It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.

In this landmark judgement, the Supreme Court said that an unwed mother in India can become the sole legal guardian of a child without the consent of the father.

4

Sarla Mudgal v. Union of India 1995 AIR 1531

In the simplest manner, this case is in regard to conversion to another religion for the sole objective of marrying second time Hon’ble Justice Kuldip Singh held: “Where more than 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens in the territory of India.”

5

John Vallamattom and another v. Union of India (Writ Petition (civil) 242 of 1997

Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India. It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.

Why Uniform Civil Code is needed now?

  • EQUALITY : All laws must treat men and women as equals. No religious law should be able to override this fundamental principle. That means polygamy, unfair inheritance and unfair divorce laws allowed for minority groups must go;
  • A uniform civil code is the sign of a modern progressive nation. It is a sign that the nation has moved away from caste and religious politics. While our economic growth has been the highest in the world, our social growth has not happened at all;
  • It will Give More Rights to Women : A uniform civil code will also help in improving the condition of women in India.

Obstacles

The basic obstacle to UCC comes from fanatical elements of minority communities (instigated by vote bank politics) who have all along held that any such Code would violate their fundamental right of practicing their religion and would lead to interference in their religious affairs. It is a different thing that the common members of such communities may be wanting a change or reform of the law for ensuring equality, but they are always compelled and indoctrinated to be silent spectators in such situations and hence a frank and candid view point from their side would never emerge.

Conclusion

First and foremost, it is necessary to build a strong nationwide consensus on UCC with the support of progressive, nationalistic and forward-looking minority leaders. If Islamic countries like Pakistan and Bangladesh can have reformed personal laws, then how can India stick to the archaic laws of the 1930s? This point has to be driven home. The ruling Govt must make it clear to the people of India that UCC is a dire necessity for the protection of women’s rights and fostering equality before the law. The UCC should carve a balance between protection of fundamental rights and religious dogmas of individuals. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious or political considerations.

Disclaimer – The views expressed in this article are the personal views of the author and are purely informative in nature.

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