UNIFORM CIVIL CODE AND GENDER JUSTICE
Author: Tarini Kalra, III year of B.B.A., LL.B., Fairfield Institute of Management and Technology
India has diverse castes, creeds, religions, and cultures residing together, India is said to be “diversity”. It is the land of many languages and possesses all the major religions of the world. Religion in India is considered by a variety of sacred principles and practices. India is a secular state as per the preamble of the Indian Constitution. India is a meticulously multicultural and multiethnic democracy. India has a diversity of family laws based on diverse religions like Muslims, Hindus, Jews, etc. To counter their discrete personal laws, the government came across the Uniform Civil Code.
Uniform Civil Code (UCC) or “One Nation, One Law” is a proposal to have a common set of governing civil laws for every citizen without taking into consideration the religion of people in matters such as marriage, divorce, inheritance, adoption, etc. In India, laws relating to marriage, divorce, inheritance etc are administered by personal laws. Personal Laws are the laws that apply to a certain group of people based on faith and belief made after consideration of religious texts. The source and authority of personal laws are the scriptures and customs of the religious community. In simple words, the Uniform Civil Code means standardization in personal laws. UCC has its advantages and disadvantages. It would overstep the fundamental right to freedom of religion, and secondly, it would be oppression to the minority. India is a diverse country having many cultural diversities which cannot be contradicted and compromise the plurality present in the country. However, it has advantages to it as well.
It will be a neutral law that would not set any boundary in law concerning religion. Uniform civil code (UCC) is part under Part IV of the directive principles of the state policy of Article 44 of the Constitution of India stating the obligation of the State to secure citizens in a uniform civil code throughout the land of India.” The consistency in law will lead to the union of the society and eradication of loopholes created due to personal laws.
HISTORY OF UNIFORM CIVIL CODE (UCC)
The debate for implementation of the Uniform Civil Code dates back to the colonial period in India and debated the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts.
Pre-Independence (Colonial Era)
The framers of the Lex Loci Report of October 1840 came across three arguments by Harington and were attracted to the same. The arguments were, firstly, “a more general application of British laws to the inhabitants of the country”. Secondly, “they could not obtain knowledge of the complexities but they were not ignorant of the language in which those laws are written.” Thirdly, the basis of the judicial verdict could not be based on laws of England without violating the fundamental code of all civil laws”. [i]
In their Second Report, the Commission examined the complications of Lex Loci and concluded that India required a body of substantive civil law in preparing which the law of England should be used as the basis for preparation. And such a body of law, prepared in regards to the conditions and institutions of India such as and character, religions, usages of the population, which are of great importance to the country.’[ii] The Commission also clarified that the codification of this report should not extend to the personal law matters of Hindus and Mohammedans.
After independence, the Indian Government under Jawaharlal Nehru desired for a uniform civil code within the territory of India. However, it led to heated debates, arguments, and oppositions which led to the passing of four bills relating to personal laws of Hindus (Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act).
UCC was formerly abbreviated in article 35 of the Draft Constitution. There was a demand to add a provision in article 35 which would make the UCC will not requisite in nature and personal [iii]laws be kept out of its view. The provision ensured that any group, section or community of people shall not surrender its law.”
The present Government has been a part of the buzz and was speculated several times with the introduction of UCC for India. The UCC bill is a part of the NDA government’s outlook for “One India”. Various sources submit that the compilation of the UCC draft is underway. The passing bill will repeal various personal laws by unifying the civil laws and bringing people under one umbrella of law. However, it will scrap the rights allotted to the minority section of India which have their civil laws in various religious and cultural affairs. In a consultation paper of 2018, the Law Commission of India observed that there was a lack of agreement on UCC and viewed that Various aspects of personal laws deprivilege and lead to discrimination which lies at the root of inequality.[iv]
Goa is the first state in India to adopt the Uniform Civil Code. Goa has a common law and runs the same set of uniform civil code concerning marriage, divorce, and succession regardless of religion, gender, caste, creed, etc for people residing in Goa and embraces equality for all by eradicating discrimination based on religious aspects.
The UCC refers to the legal uniformity of the civil code of dissimilar religious groups. The Constitution, on the one side, assures equality to all citizens, and on the other hand, it seeks to protect the religious privileges of minorities. The uniform civil code has always been an issue of penetrating dispute. Such a code must be borrowed freely from different personal laws ensuring uniformity in all aspects and acknowledging the benefits that one community safeguards from the others. Although our constitution itself believes that a Uniform Civil Code should be executed up to a certain extent, however, it does not make this implementation mandatory as Article 44 is a part of Directive Principle State Policy and it can’t be enforced by the court according to Article 37 of the Constitution of India. Uniform Civil Code should be brought gradually not forcibly. UCC can only arise through the evolutionary process.
[i] English Law in India By A .C. Banerjee
[ii]Law Commission of India. 1958. Fourteenth Report (Reform of Judicial Administration), Ministry of Law, Government of India, September 26, Vol. 1. [http://lawcommissionofindia.nic.in/1-50/report14vol1.pdf]
[iii] Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23rd November 1948