Uniform Civil Code: A Letter from the Past

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This post is written by Megha Jain, a first year student of Hidayatullah National Law University, Raipur.

INTRODUCTION

The Constitution of India was made on 1949 and Uniform Civil Code is a part of the Constitution since its inception. Uniform Civil Code being a Directive Principle of State Policy, is not justiciable. It means that Uniform Civil Code, which is Article 44 of the Constitution, cannot be forced upon. It is an advice of the makers of the Constitution and is in the hands on the Government to make Article 44[1] applicable. Nevertheless, Uniform Civil Code is a hope and an expectation of the makers and founders of the Constitution.

Basically, Uniform Civil Code as in the India Constitution means a singular law system applicable to all the citizens of India , irrespective of religion, caste and customs in the matters of marriage, inheritance, maintenance, divorce, adoption and all other personal affairs. So in a nutshell, it means the replacement of all the existing different personal laws of different religions with a mono body of law.

PAST SCENARIO OF UCC

When the law commission in its report of 2018 termed Uniform Civil Code as “neither necessary nor desirable at this stage”[2], it seemed as if the true sense of Uniform Civil Code is lost and it has merely become a provision laying in the Constitution with no utility and relevance. But it was not the case while making of the Constitution. The Constituent Assembly debates in the Constitution making process shows that the makers of the Constitution deeply discussed the relevance, use and concept of Uniform Civil Code. Many supported the idea of Uniform Civil Code while there were some members who were not in favor of the same like Mohammad Ismail who rightfully presented every obscurity that could happen if Uniform Civil Code was introduced in India. Nonetheless, being an utmost founder of the Constitution himself as well as the then law minister, Dr. B. R. Ambedkar while supporting the idea of Uniform Civil Code and answering all the arguments of Mahommad Ismail said “Not to read too much into Article 44”. He affirmed even if the Uniform Civil Code was implemented it would be applicable to those who would consent to be governed by it.

Again as it was stated by K. M. Munshi, “We want to divorce religion from personal laws from what maybe called social relations or from the rights of the parties as regard inheritance or succession. What have these things to do with religion, we really fail to understand.”[3] Thus, one thing is certain that the makers of the Constitution while inserting Uniform Civil Code, did not wanted it would overshadow different religions of the people. Rather UCC was and is intended to bring impartiality among the religion. 

The true intention is not to bring a common law of majority or ‘majoritariarism’. UCC would deal with a single body having best practices of all the laws. But what ‘best practices’ and how to decide which is best amongst all are some of the efforts that the makers left for the future government to deal with.

PRESENT SCENARIO OF UCC

Back then and even in contemporary times, Uniform Civil Code is not just about the personal laws. To know the true objective of UCC, it is to be seen altogether with secularism, national integration, legal equality, gender equality among the people of same religion, and justice without any restrictions. There are numerous arenas of law where secularism is maintained. Then why personal laws are left behind? It is not true justice when one is unconstitutional but again the same is fully valid and constitutional merely because the involved religion practices or traditions or customs permit so.

‘Religion’ only being a part of Uniform Civil Code, UCC has more to it. There are many instances where on the name of religion, customs, practices and traditions justice is hindered. Muslim marriage laws having a patriarchal characteristic of dealing with divorce matters, cases of inheritance where female coparceners are excluded just because their customs say so. Larger spheres like gender equality are suppressed by religion practices.  So, it should be acknowledged by now that matters like inheritance, divorce and maintenance are to be separated from religion. Thus, the need of uniform civil is of no doubt.

Legislatively, Uniform Civil Code is merely a provision under the Constitution namely Article 44. But over a period of numerous times, courts and judicial system have talked about Uniform Civil Code. In a ruling case of Seema vs. Ashwani Kumar[4], the apex court made it mandatory to register marriage irrespective of religion, caste or anything that says otherwise. It was a tiny step but could be a new beginning of Uniform Civil Code. Courts have in times tried to implement Uniform Civil Code in tiny steps from cases to cases. As a matter of fact, in the judgment of Shah Bano case, court while directly addressing the issue of Article 44 of the Constitution stated, “Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”[5]

JUDICIAL VIEW OF UCC

Courts have constantly helped in development of laws in the form of precedent as well as obiter dicta[6], where courts suggest its views and opinions regarding various reforms and amendments. In the ruling case of Shah Bano[7], the apex court expressly talked about the implementation of Article 44 of the Constitution. Rather than saying it a suggestion it should be construed as an urge that the court spoke of Uniform Civil Code. The Supreme Court showed deep regrets and called Article 44 of the Constitution a ‘Dead letter’. In the own words of the court’ “we understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning.”[8] The court clearly wanted the parliament to draft Uniform Civil Code even if the obstacles are around in every step of it, simply to bring utmost justice and true secularism. Yet again in Sarla Mugdal case[9], Justice Kuldip Singh while giving the verdict also opined that Uniform Civil Code has to be retrieved from the sleep it is on since the inception of the Constitution. Looking at the views of courts and judicial system, one thing is understandable that judicial system believe in UCC and also in the nation that it can survive the difficulties that are to be come with UCC.

CONCLUSION

When religion and personal laws are diverted by Uniform Civil Code, only then India would gain the true sense of secularism. Preamble provides the objectives of the constitution and its makers towards the nation. ‘Secular’ a word in the preamble is an expression and Article 44 is the essence of it. With a promising manifesto of the central government, it is the right time to bring Uniform Civil Code in India. Article 25 and 26 guarantees freedom of right to religion, freedom of conscience and the right to profess, practice and propagate religion. But this right is subject to the certain provisions in which secular provisions are also contained. Moreover, UCC would not violate Article 25 and 26[10]. UCC shall not and will not interfere in one’s religious affairs if that what is feared. With Goa being an immaculate example of common family law, there is no need to sense failure of Uniform Civil Code in whole India. However, it is upon the government to maintain the significance of UCC while drafting and executing it. UCC has its first step in India on 1949 but never been able to get existence. Maybe the time was not right then. But the time is right at present with lesser gender gap, modern thinking and justice and equality taking steps ahead of customs and traditions. And as for the ‘why now’ question- the answer is very simple. It is more than 70 years since independence and high time realized the goal assigned to us by the republic’s founding fathers.

[1] Article 44 of the Indian Constitution.

[2] https://www.thehindu.com/news/national/uniform-civil-code-neither-desirable-nor-necessary-at-this-stage-says-law-commission/article24833363.ece.

[3] https://shodhganga.inflibnet.ac.in/bitstream/10603/52367/7/07_chapter%203.pdf.

[4] https://indiankanoon.org/doc/1037437/.

[5] 1985 SCR (3) 844.

[6] Obiter dicta (dictum- singular) are a Latin phrase meaning “by the way”.

[7] 1985 SCR (3) 844.

[8] Ibid.

[9] 1995 SCC (3) 635.

[10] Article 25 and Article 26 of the Indian Constitution.

Image from https://medium.com/@rohitvishal7/is-india-ready-for-uniform-civil-code-59733aca4874

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