Need for Uniform Civil Code in India
I.
Introduction
Uniform civil code in a layman’s language means one
country one law. The term civil code refers to various laws that are covered
under the ambit of personal relations. Laws such as, law of contracts,
property, marriage etc. Even prior to the implementation of the constitution,
Bharat has always had a Uniform Criminal Code, which is accepted across the
country with certain exceptions.
Even with respect to a Uniform Civil Code we have uniformity
in various aspects of civil laws such as Law of Contracts, Transfer of Property
Act, and even the Civil Procedure Code. Personal laws however are exempted from
the scrutiny of equality and of uniformity. We have different set of personal
laws for different religious communities in the country.
Article 44 of the Indian Constitution states that, “The State
shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India”[1]. In
various modern democracies around the world a Uniform Civil Code is followed. In
India the idea of implementation of Uniform Civil Code was to counter the
divisive Indian Personal Laws.
It was discussed in the constituent assembly for about
two days and then it was added to the constitution under the directive
principle of state policies under article 44. Howsoever, due to the prevalant
social scenario of the country, because of partition and independence, it
couldn’t be implemented and was left on the upcoming parliament to implement it
whenever the majority wishes.
The application of article 25 plays an important role
over here, the main bone of contention against the implementation of a uniform
civil code is that it violates article 25 which is the right to freedom of religion.
There is no statistical data to highlight which group of the society is against
the idea of Uniform civil code, although Prima facie, it is very clear from the
constituent assembly debates and contemporary times that the minorities, and
especially Muslims in their opinion believe that this is an infringement to
their fundamental right of religion.
The Judiciary has more than a couple of times have
reminded and suggested a need for a Uniform Civil Code in the country to
address various issues related to personal laws. In between 1985-2015 there
have been around 7 Judgments, which have highlighted the need of Uniform Civil
Code in the country. Although, the power and solution is not with the Judiciary
but with the Legislature, and even this has been highlighted by the Supreme
Court at various instances. The paper hence analyses the need for the Uniform
Civil Code, misinterpretation of the idea of Uniform and Common Civil Code, and
a way forward. The paper also aims to clarify and counter the popular contention
that people have, that a code like such would infringe article 25.
II.
Constituent Assembly
Debates on UCC.
During the time when this motion was passed, there
were various Muslim leaders who opposed this and stated that this is against
the basic essence of fundamental right to religion. Various leaders like
Mohammad Ismail Sahib, Naziruddin Ahmed, Mahmood Ali Baig Sahid Bahadur and
others who insisted that personal laws shall not be altered with respect to
this article[2].
Shri Alladi Krishnaswami Ayyar addressed these
contentions by stating that Uniform Civil Code runs into every department of
civil relations to the law of contracts, the law of property and various
similar areas. “How can there be any
objection to the general statement here that the State shall endeavor to secure
a uniform civil code throughout the territory of India?[3]”
Shri KM Munshi said on the competency of the
parliament that the whole object of article 35 with reference to the powers of
the parliament is that, “whenever in
future the parliament or rather the majority of the parliament thinks proper an
attempt should be made to unify the personal law of the nation”[4]
Dr. BR Ambedkar even mentioned, “We
have a uniform and complete Criminal Code operating throughout the country,
which is contained in the Penal Code and the Criminal Procedure Code. This
country has also practically a Civil Code, uniform in its content and applicable
to the whole of the country. The only province the Civil Law has not been able
to invade so far is Marriage and Succession. It is this little corner which we
have not been able to invade so far[5].”
After observing the constituent assembly debates, the intention of our forefathers is very clear. They believed that the ultimate solution to the ever-growing problem of divisive personal laws is a Uniform Civil Code. The intention was to divorce personal laws from the aspect of religion in order to implement the idea of equality in its true spirits.
III.
Personal Laws in
India
Personal laws in India are governed by the individual
religious customs and belief. This is however not the case for every community.
The Hindu personal laws have been already scrutinized, and subsequently a
legislation was introduced by the name of Hindu Code bill which was nothing but
secularization and codification of Hindu laws. There were various practices and
laws that were discriminatory in nature prior to this legislation.
However, when this legislation was in process of
drafting, the original intention was to create a uniform code for every
community, however later observing the resistance from the minorities it was
specifically dedicated to the Hindus. Even after the implementation of this
legislation, it has been subject to various amendments and that is how a law
should be. It is always an evolving idea and not something fixed.
However the same seems to be missing from other
community laws. If one observes the laws which are there for Muslims in the
country, those are governed by Sharia through the Sharia act 1937[6] which is based on the
Quran. Howsoever, it is controlled by an unelected NGO named All India Muslim
personal law board which was formed in the year 1973. This organization was
constituted to interpret and implement laws Sharia.
They have published a book[7] in the year 2001 which had
all the Muslim personal laws which are to be implemented in this country for
Muslims. That book by far justifies and encourages all types of atrocities that
are been done in the name of personal laws. Issues like Talaq-e-biddat which
was recently struck down by both the Judiciary as well as Parliament prevails
in that book. Issues like polygamy, un-conveyed divorces and even racism in
terms of Arabs and non-arabs are highlighted in the book.
Polygamy is something which was a norm earlier in many
religions, howsoever after the Hindu Marriage act 1955, it was eradicated among
Hindus. It was still legal in Muslim community because they say it is the Quran
which allows them for polygamy and it is a right of the man to have four wives.
Well, this research paper will prove that the Quran preaches Monogamy as a norm
and polygamy had a specific meaning and requirement.
The Quran says, “To
orphans restore their property, nor substitute your worthless things for their
good ones, and devour not their substance with your own. For this is indeed, a
great sin. If you fear that you shall not, be able to deal justly with the
orphans, marry women of your choice two or three or four; but if you fear you
shall not be able to deal with them justly (with them) then marry only one that
your right hand possess. That will be more suitable to prevent you from
injustice”[8].
All commentators of Quran believes that this verse was
applied after the war of Uhud which had wiped out more than one-tenth percent
of the Muslims and left behind a large number of Orphans, the subject of the
matter above here was not polygamy, it was humanitarian and equitable treatment
of orphans and windows rendered helpless by the ravages of war.
Verse 4.129 states that, “you will never be able to do perfect justice between wives even if it
is your ardent desire: so do not incline too much to one of them, so as to
leave the other hanging”[9]. The Quran says, o people,
keep your duty to your lord who has created you from a soul and your mate of
the same kind, and spread from these two many men and women, (4.1).
Quran from the very beginning talks about monogamy, the
verse recited in marriage also says one male for one female. Further the Quran
says, “Marry those among you who are
single or the virtuous among your slaves male or female; if they are in poverty
Allah will give those means out of grace”[10] (24.32).
Coming to the compendium of laws by AIMPLB, Chapter
seven, section 117 clause 3[11] of this book says that
regard shall be held liable in terms of descent among the Arabs, especially the
Quraish, and those non-Arab families who have preserved descent. People in the
rest of the non-Arab Muslim world are mutually equal. On this very basis an
Arab descent girl can terminate her marriage to a non-equal contracted by her
guardian; and a guardian has the right to terminate the marriage of an adult
women to a non-equal.
This is dividing the Muslims in three categories Arab
region, Muslims of Indian origin who have preserved descent and other Muslims
who are equal among themselves and does not share parity with first two. Quran
in the verse 49.13 specifically says all have descended from one male and
female and the tribes and nations are just for identity but honor belong to the
righteousness.
Coming to divorce, triple talaq e biddat was something
which has nowhere of its mention in the sharia or Quran but it was mentioned in
Part 2, chapter 3, section 13[12]. It states that it is
prohibited, howsoever if it is pronounced it will be effective. Not only this,
in the same part chapter 2 it states in section 6,7 and 3[13] that talaq return on wall
which is not even conveyed to women gets effective, talaq pronounced in hazl or
jest gets effective, talaq pronounced in duress gets effective. The ullem of
AIMPLB says intention in talaq does not matter where as Quran has quoted a
number of times that how intention is something which is very important, it
does not recognize instant talaq or in compulsion or duress (65.1)[14].
There are various discriminatory religious practices
that are exist in India under the garb of article 25. The laws and practices
that are been followed in India today are slightly contrary to the original
text. In my opinion even if any of such practices is in consonance with the
original scriptures, and at the same time it violates the fundamental rights of
citizens, it should be restricted through a legislation.
IV.
Judicial
Pronouncement and Article 25
The Supreme Court has time
and again highlighted the need for a uniform civil code in India. They have
always stated that there is a failure from the side of legislature to bring a
legislation to address all the issues related to personal laws. Cases like
Sarla Mudgal[15],
Shah Bano[16]
and various other judgments has made the Supreme Court’s stand very clear[17].
However, there is an
important judgment that is to be taken into consideration in terms of Uniform
Civil Code. In the judgment of Nikhil
Soni v. Union of India[18]
the court made it very clear that a practice may be a religious practice, but
by the virtue of same it does not becomes an essential and integral part of the
religion. There are two baskets that are there in terms of article 25
implementation, one is the essential religious practice and other is the
secular or practices that are not essential in nature.
The legislature is well
within its powers to regulate the later practices and hence by the virtue of
this decision, the legislature can restrict practices like Sati, Dowry, Polygamy,
Nikah Halala, Talq- e- biddat and etc. This interpretation is something that is
very important for this study. This empowers the legislature to even alter the
personal laws.
As far as the basic essence of a religion is concerned, it is
very important to understand that personal laws are not covered under the five
basic tenets of Islam. Shri KM Munshi in the constituent assembly debates also
mentioned that when the sharia act of 1937 was implemented many Muslim sects
like Khojas and Kutchi menons were dissatisfied because they were converted and
hence followed Hindu customs howsoever certain members of Muslim community with
the centre legislature passed it and after that they had to follow it, it was
here when the rights of the minorities were in tyranny.
If one goes to any European country, one has to submit to the
civil code they have. The idea was to divorce religion from personal laws. He
quoted the Hindu code bill which was in Parliament and said that many laws in
the bill are different from what is written in Manu and Yagnyavalkya[19]. If the community feels
that inheritance should be a part of the religion, one will never be able to
provide the Fundamental right, right to equality to women.
The point that he was trying to bring to the assembly was
that even when the legislature saw that certain laws in the Hindu Code bill are
against the basic scriptures, they still implemented it to provide equality to
Hindus. Law is a very dynamic concept and hence it should be changed as per the
growing societal needs.
V.
Desirability of Uniform Civil Code
To understand the desirability of
Uniform Civil Code one has to understand the difference between common and
uniform civil code. The common code is used for a broad sense where one law is
made to govern every community, however uniform laws means that the personal
laws will be different for different communities but they will be based on a
uniform principle of gender justice and liberty.
For example the process of marriage
or how it is conducted shall be different for different community, but the
rights and obligations out of that bond should be based on uniform principles
like minimum age to get married. Similarly divorce can be performed as per the
process of the religious practices, but maintenance and alimony coming out of
such acts shall be based on uniform principles.
Dr. B.R. Ambedkar addressed this issue and said, “My friend, Mr. Hussain Imam, in rising
to support the amendments, asked whether it was possible and desirable to have
a uniform Code of laws for a country as vast as this is. Now I must confess
that I was very much surprised at that statement, for the simple reason that we
have in this country a uniform code of laws covering almost every aspect of
human relationship”.
“We have a uniform and complete Criminal Code operating throughout the
country, which is contained in the Penal Code and the Criminal Procedure Code.
We have the Law of Transfer of Property, which deals with property relations
and which is operative throughout the country. Then there are the Negotiable
Instruments Acts: and I can cite innumerable enactments which would prove that
this country has practically a Civil Code, uniform in its content and applicable
to the whole of the country.”
“The only province the Civil Law has not been able to invade so far is
Marriage and Succession. It is this little corner which we have not been able
to invade so far and it is the intention of those who desire to have article 35
as part of the Constitution to bring about that change. Therefore, the argument
whether we should attempt such a thing seems to me somewhat misplaced for the
simple reason that we have, as a matter of fact, covered the whole lot of the
field which is covered by a uniform Civil Code in this country. It is therefore
too late now to ask the question whether we could do it. As I say, we have
already done it”[20]
VI.
Concluding Remarks
It has been fairly established that
personal laws are very divisive in nature. The only evident solution is
codification of personal laws and that can be implemented only through a
legislation. The only suggestion that I could provide is that we should have a
draft for a Uniform Civil Code before we make any view of implementing it or
not implementing it.
The very idea that rights of only
minorities will be infringed is a very restricted view of this issue. In my
opinion even the rights of the majority community will be violated and hence one
can only understand this when we have a draft to discuss. Even at present there
are five petitions filed in the Supreme Court by Ashiwini Upadhyay on aspects
of uniform civil code. But again, the courts may be helpless here because they
don’t have the power to legislate.
Although, the court can at least
recommend a formation of a draft that can be produced in the public domain to
collect opinion of common people but it is for the legislature to legislate on
this issue in its wisdom. The implementation of article 25 is very clear and
hence that shall never become a problem while the implementation of UCC.
It is time that we take step
towards drafting a module of UCC to get a better picture. It is time to
implement the intent of the constituent assembly. This paper has only
established the need for a UCC and possibly suggested how it can be, but until
and unless we have a draft for the same, its implementation is next to
impossible. A neutral decision or suggestion can only be observed from the
actions of Judiciary, as they are not elected by the people. This can surely be
a solution for the human rights problem that is caused due to confounding
personal laws in India.
This article was published by me at 'Manupatra' on 8th June, 2021- https://www.manupatrafast.com/
[1]
Article
44 in The Constitution Of India 1949, , https://indiankanoon.org/doc/1406604/
(last visited May 19, 2021).
[2]
Shantanu Panchauri, Uniform Civil
Code in India: A Socio-legal Perspective (2016), Indian Journal of Law and
Legal Jurisprudence Studies: ISSN: 2348-8212: Volume 3 Issue 1, https://www.researchgate.net/publication/342503863.
[3]
Ibid.
[4]
Constituent Assembly Debates, Volume VII, 1946-1950
[5]
Supra note 1.
[6]
The Muslim Personal Law (Shariat) Application Act,
1937.
[7]
Compendium
of Islamic Laws | Sharia | Marriage, ,
https://www.scribd.com/doc/73252460/Compendium-of-Islamic-Laws (last visited
May 19, 2021).
[8]
Text and Context by
Arif Mohammad.
[9]
Ibid.
[10]
Ibid.
[11]
Compendium
of Islamic Laws | Sharia | Marriage, supra note 7.
[12]
Id.
[13]
Id.
[14]
quran-in-modern-english.pdf,
, https://www.clearquran.com/downloads/quran-in-modern-english.pdf (last
visited May 19, 2021).
[15]
MANU/SC/0290/1995
[16] MANU/SC/0194/1985
[17] D Sura Reddy, Article 44: A Dead
Letter? , The Indian Institute of Law, www.ili.ac.in.
[18] MANU/RH/1345/2015
[19] Ibid.
[20] Ibid.
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