Law is a system of rules that are created and enforced through the social or governmental institution to regulate behaviour. Law is symbolized by goddess Mart a lady justice who has weighed fold in hand indicating that justice should be impartial without and regardless of money, wealth, power and identity. This is a basic principle in Indian Law.
India maintains a hybrid legal system including criminal law, civil law, common law and statutory law within legal Framework inherited from the colonial era and various legislations firstly introduced by British. The constitution of India is the longest written constitution for a century. It contains 450 articles, 12 schedules 101 amendment and 117,369 words. This makes the Indian Law system a very extensive one.
Article 44 of the Constitution of India lays down an important directive principle of state policy, namely that the state endeavour to secure for its citizens, a uniform civil code throughout the territory of India. However, as clarified by Article 37, directive principles are not enforceable by any court, although they’re fundamental in the governance of the Country.
A uniform civil code would ensure that all citizens of India are governed by the same set of secular civil laws in matters of marriage, divorce, maintenance, adoption, inheritance. It is true that present day family law is a mixture of old and new; it is of complicated, incoherent and non-symmetrical nature and so there is need for such a code which will do away with diversity in matrimonial law. The pertinent question that arises is: “If a same law of contract or torts applies to a Hindi and Muslim, why not the same law of marriage and divorce?”.
Historical Background Of Uniform Civil Code And Its Debate
The movement for a Uniform Civil Code kicked in around the beginning of the 20th century in demand for women rights , equality and secularism. In a multicultural society like India, there is a contrasting system of personal laws. Personal laws were first framed during the British Raj, mainly for Hindus and Muslim citizens. Due to the confusing state of applicability of law, it was necessity to systematic and rationalize the legal system. Thus, they took the initial footstep towards codification of laws. They realized the general law of the country was under an imperative need of change. The purpose of the codification appears to have been to achieve certainty and uniformity. Codification of laws were made possible with the active assistance of scholars from both communities.
The next major historical location for the Uniform Civil Code debate was when the imagination for a free India was forged in the debates in the constituent assembly. The decision to place it in the Directive Principles of State Policy, Article 35 in the draft and Article 44 in the final Constitution was based on assurance given by Nehru and Gandhi to that enactment of Uniform Civil Code would be postponed, although it would remain as an aspiration of the State. However, this compromise was severely objected saying that the religion based personal laws creates divisions within the country by compartmentalizing various aspects of life. Later on, during the first 10years of Independence, Indian Government passed Hindu Code Bill even though it faced strong oppositions from conservative Hindus. It was the first major movement of democratic State. In subsequent years, records of legislature wing of the state in making efforts to unify the nation under a common civil code includes enactment of Special Marriage Act, 1954, The Hindu Code, 1955-56.
Need For Uniform Civil Code In India
The basic ideology behind the formulation of a civil code is to end discrimination based on religion. There is also need for a political consensus to implement the uniform civil code. With the enactment of a Uniform Civil Code, secularism will be strengthened, much of the present day separation and divisiveness between different religious groups in the country will disappear and India will emerge as much more cohesive and integrated nation.
Uniform Civil Code and Secularism
The Preamble of the Indian Constitution states that India is a Secular, Democratic, Republic. The process of secularization is intimately connected with the goal of Uniform Civil Code like a cause and effect. In the case of S.R. Bommai v Union of India, as per the Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities and can be regulated by the State by enacting a law.
Role Of Judiciary Or Analysis Of Uniform Civil Code
In Sarla Mudgal’s Case, the implementation of a uniform civil code is imperative for the protection of the oppressed as well as for the promotion of national integrity and unity. It is based on the concept that there is no logical connection between religion and personal law in a civilised society. Marriage, divorce, adoption, succession and the like are matters of a secular nature, and can therefore be regulated by a law applicable to all persons in a country.
Time and again, the judiciary has given a loud and clear call for the implementation of a uniform civil code in India. In 1985, in Mhd. Ahmed Khan v. Shah Bano Begum popularly known as Shah Bano’s Case, the Supreme Court reminded the Parliament in very strong terms to frame a uniform civil code. In that case, a poverty-struck Muslim woman, who was given a triple divorce by her Muslim husband, claimed maintenance from her husband under section 125 of the Code of Criminal Procedure, under which a wife who is unable to maintain herself can claim maintenance from her husband. The Supreme Court held that she did have such a right and observed that even the Koran imposes and obligation on a Muslim husband to make a provision for his divorced wife. Lamenting that article 44 of the Constitution had remained a dead letter, the then Chief Justice of India, Justice Chandrachud, observed as: “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”.
The response to this judgment was prompt, strong and reactionary. Protestors took to the streets, disturbances erupted all over the country. The government, led by Prime Minister Rajiv Gandhi, reacted immediately and Parliament passed the Muslim Women’s (Protection of Rights in Divorce) Act, 1986, which effectively nullified the decision of the Supreme Court in Shah Bano’s Case.
The Supreme Court once again sent a strong reminder to the government in Sarla Mudgal v. Union of India, when the apex court reviewed four cases where the facts were similar. The question before the court was whether, after contracting a Hindu marriage, the husband could convert to Island and marry a second wife, without divorcing her first. The Bench, headed by Justice Kuldip Singh, held that an errant Hindu husband could not do so to circumvent the provisions of Hindi law and would be punishable for bigamy under the Indian Penal Code if he did so. In a rather lengthy judgement, the Judge touched upon the importance of a uniform civil code at least twenty times, and lamented as under: “Successive governments have, till date, been wholly remiss in their duty of implementing the constitutional mandate under Article 44”.
Likewise, in Pannalal Bansilal v. State of AP, it was held that although a uniform civil code is highly desirable, it ought not to be enacted in one go, as that would be counter- productive to the unity and integrity of the nation.
Even the strong outbursts of Justice Kuldip Singh (referred above) were later watered down by the Supreme Court in subsequent cases with an observation that such remarks were only in the nature of obiter dicta and were not legally binding on the government.
Sandwiched between the Supreme Court’s mixed response and the legislature’s wariness, it is clear that the implementation of a uniform civil code in India will remain a distant dream for a long time to come. In 1954, when the then Prime Minister Jawaharlal Nehru was asked why Article 44 had not yet been implemented, he declared: “I do not think that at the present moment, the time is ripe in India for me to try to push it through”.
In other words, he did not feel that the country was ready for such an enactment at that time, which was more than sixty years ago. Sadly, it appears that even today, the country is far from ready for it.
There can be no doubt at all that personal laws, including a uniform civil code, must necessarily be in with the Constitution of India. Now, Article 25 of the Constitution deals with fundamental rights and guarantees the freedom of conscience and the right to profess, practice and propagate religion. It thus follows that no set of laws can violate Article 25, which is a fundamental right, as contrasted with Article 44, which is only a directive principle. Clearly, Article 25 was enacted to protect the religious freedom of various communities in the country. This leads to unique dilemma: “Can the country really have a uniform set of laws for all citizens which necessarily discards some personal laws, and is yet in consonance with the freedom of religion guaranteed by Article 25 of the Constitution?”.
An Optional Civil Code
The concept of an optional uniform civil code has also been mooted. Ideally, a uniform civil code ought to focus on rights, leaving the ritual embodied in personal law intact within the bounds of constitutional propriety. If such a code is made optional, it can provide free choice and facilitate harmonisation of social relationships across the country, in keeping with the changing contours of emerging societal realities.
It has also been opined that a uniform civil code, optional or otherwise, should not be drafted, as sometimes suggested, by putting together the best elements from various existing personal codes, as this is likely to invite controversies. It would be far better that such a code is framed de novo by an independent body like the Law Commission, in consultation with experts and relevant interests, as a citizens charter governing family relations.
Family Laws: The ‘Uniform Code’ of Goa
Whilst entire country swings in uncertainty over the implementation of a uniform civil code, the state of Goa has shown the right path to the rest of the country. A positive step has already been taken several years ago by this state, which has enacted a set of ‘Family Laws’, which apply to all communities in Goa. There is no discrimination in this code between Hindu or Muslims or Christians or any other community. Based on the Portuguese Civil Code of 1867, it governs personal matters like marriage, divorce, succession, guardianship, and embraces the concept of gender equality.
Under this Code, which enacts a very progressive law, every birth, death and marriage is compulsorily registerable. The code provides for an equal division of property between husband and wife and also between children- irrespective of gender. It enacts the rule of monogamy, and Muslims whose marriages are registered in Goa can neither take a second wife nor divorce the existing one by a pronouncement of talak.
Strict provisions have also been made with regard right the distribution of property at the time of divorce. Each spouse is entitled, in case of divorce, to half a share of property. As far as succession is concerned, in case of the death of a spouse, it is provided that the ownership of half the property is to be retained by the surviving spouse and the other half is to be equally divided amongst all the children, irrespective of whether they are male or female, and whether they are unmarried or have got married and left the house. This provision has disabled parents from totally disinheriting their children because the children fall in the category of what is known as ‘mandatory heirs’. They cannot be disinherited save under extraordinary circumstances listed in the code. It is therefore not a matter of surprise that the former Chief Justice Of India, Mr. Y. V. Q once remarked: “It is heartening to find that the dream of a uniform civil code in the country finds it realisation in the Union Territory of Goa’. He also expressed the hope that the Goal Civil Code would one day ‘awaken the rest of bigoted India and inspired it to emulate Goa”.
Recent Developments Regarding The Uniform Civil Code
It is a supposed assumption that after the banning of triple talaq and subduing the special status of Jammu and Kashmir under article 370, the next big move under Modi government’s agenda could be Uniform Civil Code. During the month of August 2018, the Law commission submitted a report ‘Reform of Family Law’. The report presents us with the diversity of Indian culture and how the weaker sections of the society must not be ‘dis-privileged’ in the process.
The All India Muslim Personal Law Board (AIMPLB) will work towards building public opinion against a uniform civil code by establishing contact with different sections of the society, which could be affected in case the common civil code is implemented, saying in a country like India with different cultures and civilisations such a move ‘will not be justified’. “The board members are of the view that in the agenda of the ruling BJP, now only common civil code is left, and they will proceed in this direction”, AIMPLB member said.
There is a firm belief that the way forward may not be uniform civil code but the codification of personal laws, suggestive of the fact that that amendments in personal laws so that the stigma and prejudices attached to them would come to light and could be tested on the anvil of fundamental rights. This is a long-established fact that the opposition had been stalling the Uniform Civil code bill.
Conclusion And Suggestion
Indian law makers need to find a way forward towards the path of development by adopting Uniform Civil Code. A vast number of interests and sentiments must be addressed while devising the rules. Additionally, since this involves radical changes in existing personality laws, the move for reform would take a better shape if there is sufficient pressure from within the various communities that co-exist in India, rather than by one broad sweep of legislation Bringing the Uniform Civil Code is a social transformation and needs to be done gradually. It is not necessary that only some people from minority community will oppose it. Any section of society that is being deprived of benefits may protest.
The Uniform Civil Code should be drafted keeping in mind the best interest of all the religions. A committee of eminent jurists should be constituted to maintain uniformity and care must be taken not to hurt any sentiments of any particular community. A Uniform Civil Code embodies justice and there should be no compromise on it. One nation should have one civil code.
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