by Prime Abhilas-The provision of Uniform Civil Code has been enshrined under Article 44 of the Indian Constitution. Since Uniform Civil Code falls under the Directive Principles of State policy, they aren’t enforceable in the courts. Historically both, Nehru and Ambedkar were proponents of a Uniform Civil Code. Jawaharlal Nehru had once observed that the greatest hindrance since Independence was “creating a just state by just means” and also “creating a secular state in a religious country”. In the Shah Bano case the Indian Supreme Court had passed an appreciable judgment, giving right to a Muslim woman of maintenance on monthly basis, but subsequently it was over turned via a legislation passed by the parliament with full majority. The Muslim Women (Protection of Rights on Divorce) Act was passed in 1986 to rescind the ruling of Shah Bano. This incident thus escalated the call for a uniform civil code.
To be fair and square, if implemented, the Uniform Civil Code would replace certain personal laws based on scriptures and customs of religious community in the country with a common set governing every citizen. India is a multi-ethnic, multi-religious country with ample diversity. Some perceive UCC as a stick which can be used to beat the minorities in India especially the Indian Muslims through the threat of a majoritarian homogenising principle of Hindutva which would eventually result in a identity crisis for the minority community.
The sophistry that the Uniform Civil code would necessarily contravene the Fundamental Rights such as the Right to freedom of religion (Article 25-28) and the Cultural & Educational Rights (Articles 29-30) needs to be negated. Article 25 (2) (a) of the Indian Constitution empowers the government to ‘regulate and restrict any economic, financial, political or other secular activity which may be associated with religious practice’. Ergo, certain draconian religious practices such as Sati, Child Marriage, Witchcraft, Caste Discrimination, Prohibitions against Widow Remarriage have been barred. A Uniform Civil Code won’t curb the freedom of people to follow their religion but it would just ensure that every person gets treated in the same way under the same law.
rsonal laws which govern matters such as marriage, divorce, succession, inheritance etc is antithetical to the concept of secularism and are a stumbling block in the Indian society. These laws make the word ‘Secularism’ look like an asinine word in the constitution of India. They operate on thousands of years old values. The Supreme Court in the case of Krishna Singh vs Mathura Ahir had declared that personal laws which were in force before as well as after the commencement of the constitution are not susceptible to part III of Constitution. Conversely in cases such as in Githa Hariharan vs Reserve Bank of India, the section 6 of Hindu Minority & Guardianship Act was challenged as being bigoted towards women. In this case the court did not reject the petition instead it read down Section 6 of the Act to bring it in consonance with Article 14 and 15 of Indian Constitution. This shows that the decisions of court have been mercurial making the position of personal laws vague.
Pragmatically, there are quite a few positives which the Uniform Civil Code can bring about. Different personal laws for different communities creates unnecessary burden on the Indian legal system. Implementation of a Uniform Civil Code would neutralize this problem.In the Indian society male chauvinism along with religious conservatism has forged an unholy alliance to perpetuate gender discrimination against women.Here the Uniform Civil Code can be seen as a major step towards gender justice apropos Muslim women. Muslim women hardly have any rights of maintenance and inheritance. A Strong Uniform Civil Code would thus modify the situation of Muslim women for the good. All laws should treat men & women as equals. This necessarily means getting rid of polygamy, unfair inheritance and unfair divorce laws. Most of the personal laws in India are patriarchal in nature which promotes the imbalance of power between genders.
Apologists of Uniform Civil Code also state that the implementation of UCC would also bring an end to vote bank politics because if all Indians have same laws governing them then the politicians will have nothing to offer to any community in exchange of votes. The Uniform Civil Code would also strike down certain discriminatory provisions in the Indian Succession Act that proscribes Christians from bequeathing property to religious and charitable trusts. Sans a Uniform Civil Code & due to the presence of personal laws, Hindus can form their Hindu Undivided family to manage their assets but Muslims & Christians do not have such privilege. Christians cannot file for divorce before 2 years of marriage but other religious communities can do so within 1 year.
A Uiform Civil Code would be a common fabric woven with positives from all religions while discarding the negatives. After the implementation of UCC most of the discriminatory events will have to go for example polygamy and triple talaq system within the Muslim community as well as laws pertaining to succession and laws governing cow slaughter as far as the Hindu community is concerned. So a Uniform Civil Code would set the precedent for true egalitarianism in Indian society. The uniform civil code has been erroneously demonized as an assault on religious identities by certain sections of the society but in reality it would facilitate harmonization of social relationships across the country.
(This Article is written by Prime Abhilas, an alumnus of National Law University (NLU), Odisha and Managing Partner of Universal Allied Advocates (UAA). UAA is an upcoming multi-disciplinary Law Firm at Hanspal, Bhubaneswar. Adv. Dibakar Parichha, who served as Central Govt Counsel under Legal Affairs Department of Ministry of Law and Justice, Govt of India is the Founder-Partner of UAA)