UNIFORM CIVIL CODE

Indian Constitution allows allows legal pluralism as per that the people of different communities and sects are allowed to follow their personal law.

Article 44 of the Directive Principles of State Policy in the Indian Constitution mandates that “The state shall endeavor to secure for all citizens a Uniform Civil Code throughout the territory of India.”

The Uniform Civil Code (UCC) envisages implementation of common laws in relation to all citizens of the country with equal yardsticks.

With passage of time, it has been realized that Muslims as community have been extremely susceptible and circumspect to the extent of being stubborn for taking the implementation of common civil code.

Misconceptions around the Uniform Civil Code

The subject is ignited deliberately by political parties with a gap however the absence of will in successive Governments reflect clearly in implementing the laws.

There are some misgivings that Muslims and Christians are the only communities which are avowed to follow their personal laws. Hindus follow personal laws for thousands of years being the oldest civilization and religion however being progressive in outlook, Hindus did not oppose amendments in personal laws time to time and particularly in 1956.

Earlier with continuation of a regime, committed not to ouch personal laws, Universal Civil Code remained a good for discussion but not to be touched social and legal item. However with political landscape having changed and secularism as understood so far having been redefined and reconceptualized , the talk of its implementation has began afresh with more vigour and voltage. Buoyed by its growing ascendancy in the political echelons, it is now firmly fixated on its reforms in civil laws of religious denominations.

The UCC conundrum for Constituent Assembly

The debate over the Uniform Civil Code in the Constituents Assembly was among the most heated.

In the Constituent Assembly, there was division on the issue of putting the Uniform Civil Code in the fundamental rights chapter. The matter was settled by a vote. By a majority of 5:4, the fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held that the provision was outside the scope of fundamental rights and therefore the Uniform Civil Code was made less important than freedom of religion.

Kazi Karimuddin, member of the Constituent Assembly that framed the Constitution, argued:

“The people outside and the members of the Constituent Assembly must realize that a Muslim regards the personal law as part of the religion and I really assure you that there is not a single Muslim in the country—at least I have not seen one—who wants a change in the mandatory provision of religious rights and personal laws, and if there is anyone who wants a change in the mandatory principle, or religion as a matter of personal law, then he cannot be a Muslim. Therefore, if you really want to protect the minorities—because this is a secular state it does not mean that people should have no religion—if this is the view of the minority Muslims or any other minority that they want to abide by personal law, those laws have to be protected.”

Naziruddin Ahmad, a Constituent Assembly member representing West Bengal, took a sobering view when he warned against radical constitutional provisions:

“I have no doubt that a stage would come when the civil law would be uniform. But then that time has not yet come. We believe that the power that has been given to the state to make the Civil Code uniform is in advance of the time . . . What the British in 175 years failed to do or were afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the state to do all at once. I submit, sir, that we should proceed not in haste but with caution, with experience, with statesmanship, and with sympathy”.

Dr. Bhimrao Ambedkar was very clarificatory in his assertion:

“There is no obligation upon the State to do away with personal laws. It is only giving power. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India.”

The Law Commission, acting on a reference made by the government in 2016, had on August 31, 2018, floated a consultation paper on Reform of Family Law. The consultation paper covered topics of marriage and divorce, custody and guardianship, adoption and maintenance, and success and inheritance.

In the 185-page consultation paper, the Commission has dealt with laws that are discriminatory “rather than providing a uniform civil code which is neither necessary nor desirable at this stage.”

The Commission stated in the consultation paper: “While the diversity of Indian culture can and should be celebrated, specific groups or weaker sections of society must not be dis-privileged in the process. The resolution of this conflict does not mean the abolition of difference. Commission has therefore dealt with laws that are discriminatory rather than providing a UCC”

Article 25 of the constitution lays down an individual’s fundamental right to religion. Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion.” Article 29 defines the right to conserve a distinctive culture.

An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights.

The Uniform Civil Code doesn’t mean that there should be a Hindu Code which is made uniform. The Uniform civil code shall be evolved after selecting the best and most common and practical aspects of all family and civil practices after elaborate and intense discussions. Some where there is a misconception that Hindu personal laws shall be imposed on other minority communities which can not be done as the Hindus did not protest for quite a few amendments carried out in 1956. The most liberal elements of all the personal laws, whether it is Hindu Law, Muslim Law, Christian Law, and so on, should be taken together to provide a Uniform Civil Code. That should apply to the entire country and will be acceptable to all communities.