UNIFORM CIVIL CODE – THE WAY FORWARD
Author: Gautam Badlani, I year of BBA LLB from Chanakya National Law University
A Uniform Civil Code (hereafter “UCC”) refers to such certain common principles and laws which govern the personal affairs of Individuals such as inheritance, marriage, divorce, adoption, maintenance, guardianship, custody of child, succession, etc., and which apply to all the citizens of the country irrespective of their religious background. In the present scenario, these aspects are regulated by various laws such as the Hindu Marriage Act, the Hindu Minority and Guardianship Act, Hindu Succession Act, Parsi Marriage and Divorce Act, Christian Marriages Act, etc. The Muslims do not have any specific codified personal laws. Except for Goa which has a common code known as the Goa Family Law, no other Indian state has adopted a UCC.
HISTORY OF PERSONAL LAWS IN INDIA
Personal laws refer to such laws which apply to a particular section of the society and are based on their religious texts and sculptures. The history of personal laws in India goes back to British rule. During the colonial era, the Britishers drafted several uniform laws relating to criminal and public matters such as crimes, property, evidence, etc., but refrained from codifying the personal affairs of different religions into common law. The Britishers feared opposition from various communities and drafted different personal laws for different religions. Thus, the Britishers drafted separate legislations for Hindus (such as the Hindu Wills Act, 1870), Muslims (the Guardians and Wards Act, 1890) Christians (such as the Christian Marriage Act, 1872), etc.
CONSTITUTIONALITY OF UNIFORM CIVIL CODE
The Constituent Assembly was also divided over the adoption of a UCC. Some members such as Dr. B.R. Ambedkar was in favour of the adoption of a UCC. However, the members of the minority communities opposed a common code. The proposal of including UCC in the fundamental rights chapter of the Constitution was turned down by the fundamental rights sub-committee by a 4:5 majority vote. Resultantly, the UCC was mentioned only as a Directive Principle in the Constitution under Part IV of the Constitution. This creates neither a binding obligation for the State for the implementation of a UCC nor does it make the UCC enforceable by the judiciary.
The UCC finds its mention under Article 44 of the Constitution which provides that securing “for the citizens a Uniform Civil Code” shall be a directive principle of the State. Hence, even though it is not mandatory for the government to enforce a UCC, the Constitution envisages the adoption of a nationwide UCC. The Constituent Assembly was hopeful that the state would strive to create social acceptance for UCC and would subsequently implement it.
SUPREME COURT ON UNIFORM CIVIL CODE
In several landmark judgments such as Minerva Mills Limited v. Union of India, the Supreme Court has also held that the State should strive to accomplish the directive principles while ensuring that the fundamental rights of the citizens are not violated.
In the landmark judgment of Mohd. Ahmed Khan vs Shah Bano Begum and Others, the Supreme Court regretted the non-adoption of a UCC and said that a common code will help in bringing about national unity and integration by removing conflicting ideologies. However, since the adoption and implementation of UCC comes under the authority of the Legislature, the Court remained within its boundaries and simply requested the Parliament to consider the adoption of the UCC.
In several other cases such as Sarla Mudgal v. Union of India, John Vallamattom v. Union of India, the Supreme Court appealed to the Parliament to consider the adoption of UCC but it was all in vain.
UNIFORM CIVIL CODE IN GOA
Goa has a common family law known as the Goa Family Law, which makes it the only Indian state to have a UCC. During the Portuguese rule, Goa followed the Portuguese Civil Law. The Civil Law was retained when Goa merged with the Union of India. All the Goans are governed by a uniform code irrespective of their religions. Under the Goa Family Law, a couple is the joint owner of all the assets owned by either of the spouses. In the case of divorces, the property is equally divided between both spouses. It is also mandatory for the parents to pass on at least half the property to their children. Muslims are not allowed to practice polygamy if their marriage is registered in Goa.
A UCC will help in promoting secularism in its true sense. It will help in promoting national unity. It will protect the vulnerable sects of the population and will lead to harmony among the various communities. It will also help in the removal of discrimination against women on the grounds of religion. Since the code will apply to all the citizens irrespective of their religion, caste, colour, etc it will help in promoting equality.
There have been several instances where personal laws are found to be discriminatory against women in matters of maintenance, alimony, etc. The adoption of a UCC will help in putting an end to all such discriminations based on religion. It will also help in promoting and strengthening the right to equality which is enshrined under Article 14 of the Constitution.
Furthermore, it will help in making the guardianship and adoption process simpler by providing a uniform set of rules and guidelines which are applicable throughout the country. Currently, only the Hindus have codified adoption rules. The adoption of UCC can also help in the implementation of a uniform marriage age across all religions. The UCC will help in simplifying the segregated and complex personal laws and will lead to faster and equitable delivery of justice.
DIFFICULTIES IN ADOPTION OF NATIONWIDE UCC
The minority communities have consistently opposed the adoption of a UCC. The involvement of religious sentiments makes the matter very sensitive and the adoption of UCC becomes all the more difficult. The 21stLaw Commission also submitted a consultation report in 2018 on “Reform of Family Law” where it stated that there is no necessary or desirable need for a UCC. The report further recommended amending the existing personal laws to remove the inequalities and end the discrimination on religious grounds.
Another difficulty in the adoption of UCC is that the State Legislatures have the authority to make laws relating to personal affairs as“personal laws” come under the Concurrent List. Therefore, any attempt by the Centre to draft a Uniform Code regulating the personal matters of the citizens and applicable throughout the country might involve a jurisdiction problem. Also, the local traditions and customs of some states such as Nagaland, Meghalaya and Mizoram are provided special protection by the Constitution. A UCC might take away these special privileges.
Critics of the UCC have also pointed out that the adoption of a uniform code applicable to the people of all religions would be a violation of the religious freedom guaranteed by the Constitution under Article 25 and Article 26. The Constitution provides a safeguard against the interference of the state in religious matters. Hence, the UCC cannot be imposed on the people until there is a broad consensus for the same.
A Uniform Civil Code is certainly the need of the hour as it will help in promoting equality among the people. If the UCC can be successfully implemented in Goa, then there is no specific reason as to why the same mechanism cannot be applied to the rest of the country. The adoption of a UCC will certainly be a progressive and reformative step.