ANALYSIS OF UNIFORMITY IN INDIA WITH RESPECT TO UCC UNDER ARTICLE 44 OF THE CONSTITUTION
Author: Sarthak Kulshrestha, III year of B.A.,LL.B. from Jagran Lakecity University, Bhopal
The issue of the Uniform Civil Code surfaces in the news very frequently, but still, we see no development with regard to the implementation of the same. This implies that it is not that easy for the authorities to bring a UCC to India considering various irregularities and oddities in our country. Uniform Civil Code is explicitly mentioned in the Directive Principles of State Policy (DPSP) under Article 44 of the Constitution. Then, what must be the reason for the inability of the government to bring UCC to India? Before having taped the answer to this question, we need to understand what Uniform Civil Code, exactly is.
Uniform Civil Code is the way of bringing uniformity in India regarding the subjects which the different personal laws deal with, such as marriage, inheritance, maintenance, adoption, etc. The UCC has the object of replacing these personal laws with a single law to deal with the above-mentioned subjects. This aims to bring uniformity to India and make it hassle-free for the people and the authorities to deal with the matters as it would be based on a single set of rules. The entire concept sounds progressive, but the irregularities which are connected to it and the controversies related to the same act as impediments to bringing up the UCC. This article deals with the technicalities of the issue and relevant case laws on the topic.
India was a British colony and the English laws were made and implemented throughout the territory of India. The control over the governance of India was in the hands of the Crown since 1858. Having said that, it was wise for the British not to interfere with the cultural or religious aspects of our country in order to devise laws for the Indian populace so that the conflicts could be avoided and peace be maintained. So, no uniform law was enacted regarding the subjects for which personal laws or customs were already existing. In 1941, following the controversy on several legislations passed for the benefit of the Hindu women, a committee called B.N Rau committee was formed which had to examine the necessity of common Hindu laws. The committee recommended a common Hindu code which was debatable and finally after being lapsed once, it was resubmitted in 1952.
Passage of the Hindu Code bill
Hindu code bill was passed following a lot of discussion, and it was passed in four separate parts:
The Hindu Code bill was passed but a big question that was pertinent to ask here is that why only Hindus are codified and not the entire population belonging to different religions is getting a uniform law? The government argued that it was done as a trial attempt to bring a code on personal matters for Hindus exclusively. If it would succeed, the other communities would ask for reconsideration of a code for themselves.
Incorporation of UCC in the Constitution?
The then Prime Minister Pt. Jawaharlal Nehru, accepted that the Hindu Code bill was incomplete in its stature as its implementation and formation had loopholes. Along these lines, he found Uniform Civil Code essential to include it in the Constitution. He hesitated to enforce UCC on diverse communities so as to avoid any conflict or chaos that’s why he inserted UCC under Article 44 as a DPSP making it a non-justiciable directive.
Idea of uniformity through Uniform Civil Code
Article 44 of the Constitution states that the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India. It ensures uniformity among all the citizens in dealing with the subjects such as marriage, inheritance, adoption, maintenance, divorce, etc. irrespective of the religion to which one belongs. The law will be uniform for all. Article 44 intends to leave no communal exception notwithstanding any existing personal law.
The idea is to bring uniformity in India to make all the citizens obliged to follow only one law in personal matters. The preamble to our Constitution characterizes India to be a secular democratic republic nation. Considering the secular nature of India, it seems to be imperative for our country have a uniform law on personal subjects for the citizens so that it would ensure no bias or inequalities as such voids are present in the personal laws. Some of the advantages of UCC are as follows:
Equal status to all citizens
In the contemporary times of India, the biased behavior among the citizens who belong to different and diverse backgrounds is not at all suitable. It acts as an obstacle in the collective development of the society. But the introduction of a common code for civil and personal matters without any bias based on religion, caste, class, gender, etc. will be certainly helpful to ensure equal status to every citizen of the country.
Elimination of gender bias
The existing personal laws for both Hindus and Muslims are considered to be highly discriminatory against women. Whether it be the maintenance, inheritance, or any other issue, it is the woman who suffers much more complications and trouble than a man under the personal laws. It is observed that men are granted upper preferential status in matters of succession and inheritance. But, a gender neutral uniform civil code would eliminate all the discriminatory aspects and will ensure gender parity in its proviso in every subject.
A boon for young population of India
In India, the youth forms around 50% population, i.e. is up to 25 years of age. This constitutes a large part of the Indian population. They are witnessing the contemporary changes in the society and seeing the rise in the level of significance of the principles like equality, humanity, social welfare, modernity, etc. These principles are believed to vehemently oppose the gender inequalities, detrimental approaches towards the interpretation of religion, etc. So, uniform civil code would be beneficial as well as relevant for them to cast uniformity in India in personal matters in accordance with the progressive principles of modern day society.
Support the integrity of the nation
The way in which the principle of rule of law keeps all the citizens equal in the eyes of law, the same should be the case with the issues on personal as well. If there would be no different personal laws and everyone would be obliged to follow a common code for certain subjects, then the object of national integrity could be achieved easily.
Challenges in the implementation of UCC
Although there is the need of uniform civil code in India, but there are practical challenges that the government faces in the implementation of UCC in India. A major challenge is the tussle between the idea of uniformity under Article 44 and Article 25 of the Indian Constitution.
Article 25 of the Indian Constitution guarantees every citizen, the fundamental right to freely profess, practise and propagate religion. The argument given by the people challenging the Uniform Civil Code is that UCC is against the fundamental right to religion which is guaranteed under Article 25. The UCC seeks to dissolve the personal laws which is seen as an attack on Article 25 by some people, especially the minorities. They also contend that Article 44 is only a Directive Principle of State Policy, a non-justiciable right and it is not enforceable in courts but Article 25 is a Fundamental Right which is enforceable in courts. Article 25 empowers the State to regulate or restrict the secular activities and the religion has nothing to do with those matters. So, the matters of inheritance, maintenance, adoption, divorce, etc. are the ones which are to be dealt with law and not by religion. The challenge in the introduction of UCC is highly driven due to the insecurity of the minorities. Another major reason of insecurity which the minorities feel is the imposition of Hindu personal laws under the garb of Uniform Civil Code. These are some of the reasons or the misinterpretation of Article 44 in minds of minorities which prevent this important step towards the social development of the Indian society.
Present status of Uniform Civil Code in India
In India, there only one state where Uniform Civil Code is enforceable by law and that is Goa. Goa was a colony of Portugese until 1961 when it became a part of India by Daman & Diu Administration Act, 1962. Goa has the UCC but it is much different than what Article 44 and the State perceives it to be.
The Goa Civil Code lets the parties to a marriage sign a contract to complete its solemnization. After marriage the property of both husband and wife becomes common and there are equal rights on ancestral property of both sons and daughters. There also exist some loopholes in Goa civil code such as the Hindu men are given the right of polygamy in case the wife is unable to conceive a child till the age of 25 or a male child till 30 years of age. And Muslim men cannot engage in polygamy if they don’t get their marriage registered under the code. There are differences between the registration of marriage for Catholics and non-Catholics.
So, there are various irregularities in the Goa Civil Code too, therefore it can’t be said to be a uniform law. It lacks the ability to achieve the objectives of a uniform law such as gender equality, equal rights of the parties on a subject of personal matter, etc.
Relevant case laws
The Supreme Court and state High Courts have, in many instances, recommended the government to bring UCC. The judiciary has at times, recognized UCC to be the need for our country. Some of the relevant case laws are as follows:
Mohammed Ahmed Khan v. Shah Bano Begum (1985)
In this case, the husband of Shah Bano Begum took divorce from her and she was denied her claim for maintenance in the High Court. But the Supreme Court ruled in the favor of her and held that she is entitled to maintenance u/s 125 of Cr.P.C. Further, the Supreme Court held that a pending document, UCC must be finally enacted. It will help to resolve the conflicts between different ideologies by removing disparate loyalties to the personal laws. The Honorable Supreme Court accepted the difficulties to bring various communities under the purview of a single and uniform law, but it said that a beginning has to be made if the Constitution has to have any meaning.
Ms. Jorden Diengdeh v. S.S. Chopra (1985)
In this case, the Supreme Court observed that the personal laws are not uniform and do not comply with the principles of equality. The laws related to divorce and judicial separation have flaws in them and uniformity must be there to deal with the cases on these subjects. This could be done by introducing UCC in the country so that these matters can be addressed fairly irrespective of religion or gender.
Sarla Mudgal v. UoI (1995)
In the given case, the Supreme Court held that conversion to Islam and marrying again would not, by itself dissolve the Hindu marriage. Thus, second marriage solemnized after converting into Islam would be an offence u/s 494 of the IPC. The SC again said that the UCC should be retrieved from the cold storage and enforced by India.
Shayara Bano v. UoI (2017)
The recent case of Shayara Bano is highly relevant as it entails the need of UCC as the Supreme Court considered while deciding the constitutional validity of triple talaq practice of divorce by Muslim men. The Court held triple talaq to be unconstitutional and laid emphasis on the uniform civil code to eliminate such unjustified practices in personal laws.
The introduction of the Uniform Civil Code in India will, no doubt, prove to be fruitful for the citizens and the nation as a whole. But it is difficult in the Indian scenario considering various cultural, religious and other differences. It is a progressive law and such a law should be brought in a suitable atmosphere where it can be successfully implemented. As directed by the Apex Court in numerous instances, India needs UCC and it will serve the social development of our country. A lot of times, the idea of UCC is denigrated due to the possible violations of the same considering that India is not that foolproof to follow the intended proviso of the code. This is a very weak argument because just due to the reason of a possible violation of a law, a developmental law should not be stopped from implementation.
Also, when the Hindu Code Bill was brought, it created a lot of chaos through the protests. But, it was accepted and in a similar fashion, UCC would be a law aiming at the long-term welfare of the citizens. This has to be considered seriously to bring the diverse population under the umbrella of a common-law so that gender-neutral and developmental objectives of UCC could be achieved.