Author: Sandra Jini Saju, V year of B.A.,LL.B. from Christ Academy Institute of Law Bengaluru
Abstract
Article 44 under DPSP of the Constitution requires the state to strive to secure the citizen of India a UCC throughout the country. The drafters of the Constitution aims to bring equality by regulating uniform laws in the country for protecting the rights of vulnerable sections. Secularism is the basic feature of the Constitution only through eradicating separate religious laws secularism can be implemented in India. Uniform Civil Code is considers to as a threat to the religious freedom as every religious parties presumes that their religious believes would be vitiated. The Judiciary through many cases emphasised the implementation of UCC for the unity and integration of the country. UCC can bring equal status to all irrespective of their religion, gender, caste etc. through this paper the researcher aims to showcase the relevance of Uniform Civil Code in the present scenario for eradicating discrimination and to bring equality among all gender.
Keywords- Uniform laws, Discrimination, Constituent Assembly, Secularism, Rights of Women.
Introduction
India is a diverse country and vast country a conscious chaos of religions ethnicities custom and social structures to unify into one law and abolition of personal laws was seen as a fiendishly tough task for drafters of the Constitution.
Uniform Civil Code means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly. One Civil Code common to all religion which shall abolition of all personal laws, in fact personal laws means laws which govern every aspect of marriage, divorce, inheritance,adoption, guardianship and many other matters these laws are discriminatory and unfair to the minority groups and women.
When the Constituent Assembly drafted the Constitution and values of pluralism had being discussed one social reform become a bone matter of discussion, couldn’t reach a consensus. There was an immense opposition from Islam fundamentalist as well as Orthodox Hindu followers they wanted sharia and shastras to determine personal laws they feared that a uniform civil code would diminish their religious freedom. As there was an alarming social unrest in the country Constituent Assembly incorporated Uniform Civil Code as a Directive Principle under Article 44 to the Constitution as a guideline to government which would be fulfilled when the nation would be ready to accept it. The Constituent Assembly aimed to abolish or limit different personal laws rather to be governed by the same laws which can bring equality to all citizen irrespective of their sex, religion, caste or race.
Dr. B.R Ambedkar in his speech in the Constituent Assembly had said, "No one need be apprehensive that if the State has the power, the State will immediately proceed to execute…that power in a manner may be found to be objectionable by the Muslims or by the Christians or by any other community. I think it would be a mad government if it did so."
Uniform Civil Code andthe Constitution of India
Article 44 corresponds with directive principles of State policy which state that “State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of the India”. Preamble of the Indian Constitution clearly states that India is a Secular, Democratic, Republic, through the 42nd Amendment the word secular was added to the Constitution which intends that State shall not discriminate anyone on the ground of religion and Article 15 of the Constitution prohibits discrimination on grounds of religion and gender. Ultimate objective of the Uniform Civil Code is to make India into a secular country. Article 14 of the Constitution guarantees equality before law only through the application of the Uniform Civil Code the equality and secularism can be maintained.
Although the defence raises the contention that according to Article 25 and 26 of the Constitution people are entitled to freedom of religion and freedom to manage religious affairs, implementation of Uniform Civil Code violates the fundamental right given under the Constitution.The personal laws discriminates the women from enjoying certain rights and equality before the law can be achieved only through the implementation of Uniform Civil Code.
Uniform Civil Code and Personal Laws
Hindu Laws- Men are considered to be superior in all personal laws. Women are discriminated in every aspects, till 1829 the practice of sati was followed in Hindu communities. Before 1955 Polygamy was a custom among Hindu community to have more than one wife. The Hindu Succession Act 1956 (before the Amendment Act, 2005) doesn’t gave the inheritance right to daughters.Hira Dei v. Bodhi Sahu and Ors[i], in this case Hira Devi was denied of her right in her residence due to the remarriage. Section 9(3) of the Hindu Adoptions and Maintenance Act, 1956 a Hindu women cannot be the guardian of an adopted child till the lifetime of her husband. There is no law which ensure payment of maintenance by husband and it’s not practically possible for a women to approach Court each time husband default payment. “Adoption has to be taken factually or legally by the male in case of marriage, and not by the wife. In other words, wife has no capacity to adopt even with the consent of the husband…”.[ii]
Muslim Laws- Among Muslim Laws the women is given a secondary status in all aspects. A Muslim girl of 15 years who has attained age of puberty is competent to marry[iii] but for boys the age of competency is above 21 years. In Hasina Bano v. Alam Noor[iv], Rajasthan High Court stated that marriage under Muslim Law is between opposite sexes with a view of enjoyment and procreation and legalizing children, thus it’s clear that women is treated as an object used at the whims and fancies of men. Moreover, polygamy is still prevalent among Muslim men they can marry up to four wives but the same doesn’t apply to Muslim women. Men can divorce his wife by pronouncing Talaq thrice, women cannot do anything to prevent the divorce. At the same time under the Muslim Law women are not entitled to get maintenance after iddat period. Muslim men is entitled for get twice of share of inheritance than women. Therefore, the patriarchal nature of Muslim society harshly discriminates women rights.
Uniformity and Rights of Women
Due to the discriminatory nature of personal laws the urge for the implementation of Uniform Civil Code arises to fill the gap of equality. Article 14 of the Constitution guarantees equality for all individual which is an enforceable right but even after the 75 years of independence still the state strives to bring equality among men and women. Constituent Assembly proposed for uniform laws under Article 44 to the Government to endeavour but even after seven decade the legislation have not come up with a uniform law. Personal laws discriminates women rights in every aspect of inheritance, competency of marriage, guardianship, divorce, maintenance and other matters. The notion of the society towards the discrimination against women rights would change only when there is a uniform law to untangle the present social issues.
Right to Equality vis-à-vis Right to Religious freedom
Article 14 and 15 of the Constitution protect equality before law and prohibits all sorts of discrimination. Only through adopting a uniform law equality can be brought out. As the society is progressing in nature, discriminating and harsh beliefs cannot be continued to be followed which create inequality in the society.At the same time opposition believes that Uniform Civil Code is considered to be a religious threat, they argue that Article 25 and 26 fundamental right shall be violated through the introduction of the uniform laws. In S.R. Bommai v. Union of India[v]Supreme Court held that the aim of the Constitution is to establish a secular state. The basis of the Constitution is that all are equal before the law and secular activities can be regulated by the State by enacting a law. Article 25(2) of the Constitution envisages that state can make laws for regulating secular activities associated with religious practices, social welfare and reform. Thus, for achieving the goal of secularism and equality state shall make uniform code through not harming the religious minorities’ interests and believes.
Judicial Interpretation
BhagwaanDutt v. Smt. Kamala Devi[vi] Supreme Court held that religion-neutral would be applicable to the citizen and personal laws must be ignored to avoid undue confusion.In Ms. Jorden Diengdesh v. S.S Chopra[vii] Supreme Court emphasis the need of Uniform law in matter of judicial separation, divorce and nullity of marriage. Court suggested legislature to implement uniform law applicable to all people irrespective of religion, cast or sex in matters to provide for marriage and divorce.
Uniform laws will strengthen national integration and lessen the religious disparity and discrimination. In Mohd Ahmed Khan v. Shah Bano Begum[viii] Supreme Court stated that common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. Uniform laws protects the rights of religious minorities and vulnerable group. In SarlaMudgal v. Union of India[ix], Supreme Court pleaded for need of Uniform Civil Code for the protection of oppressed and promotion of national unity and solidarity.
In John Vallamattom v. Union of India[x] CJI V.V Khare held that “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 regrets 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”.
In Jose Paulo Coutinho v Maria Luiza[xi] Supreme Court held that Authors of the Constitution under Article 44 had expected the State to endeavour to secure Uniform Civil Code to all citizen of India till now no action was taken in this matter.
Judiciary emphasize the importance of implementation uniform laws for the Country which would endeavour the national integrity and eradicate all the discrimination against women and religious minorities.In Mohammed Haneefa v. Mariam Bi the Court stated that in case of a clash between personal law and CrPC, the former shall prevail. Thus, to eliminate all the confusions there shall be a common code made in conformity with the present social realities.
Suggestions and Recommendations
In a diverse country like India where customs and spirituality is considers to be most sacred, implementation of common code must not sensitize any communities personal believes. Strong political regulation is required for implementation of Uniform Civil Code. Unifying different religious and custom belief to one may create an insecure feeling and communal tensions may create extreme stressful conflicts and riots in the society which may affect adversely to the secularism and integration of the country. At the same time uniform law can create a greater impact in eradicating the problems in gender inequality and opportunities. The implementation of the uniform civil code can boost unity and integrity of the country and also equal status to all.
The common code must not harm the rights of minorities, the problems of minorities must be addressed effectively. All the laws must be progressive in nature, the law must protect the rights of women and must bring gender equality among the citizen. While implementation of uniform code the beliefs and customs of each religious communities must be taken into consideration to bring out the best outcome.
Conclusion
Goa is the only state in which Uniform Civil Code exists in India irrespective gender, religion and caste. The Special Marriage Act, 1954 is a legislation in which allows solemnization of marriages without going through any religious customs or rituals. Dr. B.R Ambedkar said that “I personally do not understand why religion should be given this vast expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. We are having liberty in order to reform our social system which is full of inequalities and discrimination which conflict our fundamental rights. It’s therefore, quite impossible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the state.”
Judiciary have constantly emphasized the need of Uniform laws in India. The State must regulate a law which shall uniform all the civil laws in matter to marriage, adoption, succession, guardianship and divorce. Uniform Civil Code must be implemented for not threatening the minority but for eradicating discrimination and to bring national integration. Thus, the state while implementing uniform civil code must be careful for not harming the religious rights of minorities or it may create chaos in the society.
References
BOOKS
1) M. P. Jain, Indian Constitutional Law (8thEdn, 2018).
2) Dr. J.N Pandey, Constitutional Law of India(59thEdn, 2022).
CASES
1) Hira Dei v. Bodhi Sahu and Ors, A.I.R. 1954 Ori. 172.
2) Jose Paulo Coutinho v. Maria Luiza, Civil Appeal No. 7378 of 2010.
3) Malti Ray Chowdhury v. SudhindranathMajumdar A.I.R. 2007 Cal. 4 : (2007) 1 Cal. L.T. 323 HC, p. 7
4) Md. Idris v. State of Bihar, 1980 Cri. L.J. 764.
5) Hasina Bano v. Alam Noor (2007) Raj L.R. 543.
6) S.R. Bommai v. Union of India, (1994) 3 SCC 1.
7) BhagwaanDutt v. Smt. Kamala Devi, (1975) SCR (2) 483 (India).
8) Ms. Jorden Diengdesh v. S.S Chopra AIR 1985 SC 934, 940: (1985) 3 SCC 556.
9) Mohd Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, 954: (1985) 2 SCC 556.
10) SarlaMudgal v. Union of India, (1995) 3 SCC 635.
11) John Vallamattom v. Union of India (2003) 6 SCC 611: AIR 2003 SC 2902.
STATUTES
1) Constitution of India, 1949- Art. 14,15,25,26,44.
[i]Hira Dei v. Bodhi Sahu and Ors, A.I.R. 1954 Ori. 172 [ii]Malti Ray Chowdhury v. SudhindranathMajumdar A.I.R. 2007 Cal. 4 : (2007) 1 Cal. L.T. 323 HC, p. 7 [iii] Md. Idris v. State of Bihar, 1980 Cri. L.J. 764. [iv]Hasina Bano v. Alam Noor (2007) Raj L.R. 543. [v] S.R. Bommai v. Union of India, (1994) 3 SCC 1. [vi]BhagwaanDutt v. Smt. Kamala Devi, (1975) SCR (2) 483. [vii]Ms. Jorden Diengdesh v. S.S Chopra AIR 1985 SC 934, 940: (1985) 3 SCC 556. [viii] Mohd Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, 954: (1985) 2 SCC 556. [ix]SarlaMudgal v. Union of India, (1995) 3 SCC 635. [x] John Vallamattom v. Union of India (2003) 6 SCC 611: AIR 2003 SC 2902. [xi] Jose Paulo Coutinho v. Maria Luiza, Civil Appeal No. 7378 of 2010.