Why Indians deserve UCC

Why Indians deserve UCC

Historical Perspective

1st PM of India?Jawaharlal Nehru, his supporters and women members wanted a Uniform Civil Code to be implemented.?As Law Minister,?B. R. Ambedkar?was in charge of presenting the details of this bill. It was found that the orthodox Hindu laws were supportive of women's rights since monogamy, divorce and the widow's right to inherit property was present in the?Shastras and hence Ambedkar had recommended the adoption of a uniform civil code. According to Ambedkar, only the Uniform Civil Code bill was this opportunity to reform Hindu society as well to ensure protection to Muslim women who have little protection under Sharia Law. Nehru later supported Ambedkar's reforms and demand for a Uniform Civil Code.?

A Hindu Bill was introduced to ensure modern reformation of Hindu Society. The Hindu bill itself received much criticism and the main provisions opposed were those concerning monogamy, divorce, abolition of coparcenary ?(women inheriting a shared title) and inheritance to daughters. Hence, a lesser version of this bill was passed by the parliament in 1956, in the form of 4 separate acts, the?Hindu Marriage Act,?Succession Act,?Minority and Guardianship Act?and?Adoptions and Maintenance Act. These diluted versions supported by Nehru were in contraction to the implementation of a uniform civil code in Article 44 of the?Directive principles of the Constitution?specifying, "The State shall endeavor to secure for citizens a uniform civil code throughout the territory of India."

Certain Hindu customs prevalent at the time discriminated against women by depriving them of inheritance, remarriage and divorce. The Hindu code bill failed to control the prevalent gender discrimination. The law on divorce was framed giving both partners equal voice but majority of its implementation involved those initiated by men. Since the Act applied only to Hindus, women from the other communities remained subjugated particularly under?Sharia Law?which was the basis of the Muslim personal law in India.

Muslim Women remained subjugated in absence of UCC, as Muslim women, under the Muslim Personal Law, could not inherit agricultural land. Post Shah Bano judgment, the debate arose when the question of making certain laws applicable to all citizens without abridging the fundamental right of right to practice religious functions. The debate then focused on the?Muslim Personal Law, which is partially based on the?Sharia law, permitting?unilateral divorce, polygamy and putting it among the?legally applying the Sharia law.

Indian society in pre-independence era had much other consideration like socio-economic status, Jati and Gotra etc. in case of marriages. The Hindu code bills wiped out all such practices in Hindu, Jains, Sikh, Buddhist, Parsi, Christian communities, The?Sharia Law?in Islam had provisions that were discriminatory of women, their status and rights. There were law reforms passed which were beneficial to Hindu women like the?Hindu Widow Remarriage Act of 1856, Married Women's Property Act of 1923 and the?Hindu Inheritance (Removal of Disabilities) Act, 1928, which in a significant move, permitted a Hindu woman's right to property.?However, such protection was not extended to Muslim women due to the opposition from conservative Muslim groups who wanted to follow?Sharia Law.

How UCC was ignored in “Secular” India

The field of personal law, which includes Marriage, Inheritance, Divorce, Maintenance, Guardianship etc. of Indians, was not a priority for Governments since the Nehru time and these matters were largely left to the field of personal laws of both, Hindus and Muslims.

In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations.

Seventy years ago, B.R. Ambedkar had famously said this in a passionate speech in the Constituent Assembly: “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. He had desired a UCC that would replace religious personal laws regarding marriage, inheritance, adoption, succession and all other rights within the family that flow from religion or tradition. Finally, he had to settle for a mention in the directive principles in Article 44 of the Constitution, which said “the State shall endeavour to secure for citizens a uniform civil code”.

Why is Article 44 important?

?The objective of Article 44 of the Directive Principles in the Indian Constitution was to address the discrimination against vulnerable groups and harmonies diverse cultural groups across the country. Dr. B R Ambedkar, while formulating the Constitution had said that a UCC is desirable but for the moment it should remain voluntary, and thus the Article 35 of the draft Constitution was added as a part of the Directive Principles of the State Policy in part IV of the Constitution of India as Article 44. It was incorporated in the Constitution as an aspect that would be fulfilled when the nation would be ready to accept it and the social acceptance to the UCC could be made.

What are personal laws?

?Laws that apply to a certain group of people based on their religion, caste, faith, and belief made after due consideration of customs and religious texts. The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts.

?In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations.

In Islam, personal laws apply to matters relating to inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from Quran.

What did the Constituent Assembly say about the UCC?

Article 44 contained in part IV of the Constitution says that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The framers of the Constitution envisioned that it would be a uniform set of laws that would replace the distinct personal laws of each religion with regard to matters like marriage, divorce, adoption, and inheritance. Part IV of the Constitution outlines the Directive Principles of State Policy, which, while not enforceable or justiciable in a court of law, are fundamental to the country’s governance.

Constitution & Law about UCC

In S.R.Bommai vs Union of India case, the Supreme Court held secularism as a basic feature of the constitution. The 42nd Constitutional Amendment Act inserted the word ‘secularism’ in the preamble. Nehru government's decision of letting Muslims be governed by their personal laws while stripping Hindus of the same is the antithesis of secularism.

Article 25-28 of the constitution guarantees?religious freedom?to Indian citizens and allows religious groups to maintain their own affairs, article 44 of the constitution expects the Indian state to apply?directive principles?and common law for all Indian citizens while formulating national policies.

1)?????Article 15- No discrimination on grounds of religion, race, caste, sex or place of birth.

2)?????Article 25- Freedom of conscience and free profession, practice and propagation of religion, subject to reasonable restrictions on the grounds of public order, health and mortality.

3)?????Article 25 (2)-provides for regulating secular activities associated with religious practices, social welfare and reform.

4)?????Article 26- Right to establish and administer religious institutions.

5)?????Article 27- Prohibits the state from levying a tax, proceeds of which are used for the benefit of a particular religion.

6)?????Article 28- deals with the issue of religious instruction in educational institutions.

Why UCC now?

India is a 'secular' nation which means a separation between religion and state matters. Moreover, 'secularism' in India means equality of all religions and practitioners of all religions before the law. Currently, with a mix of different civil codes, different citizens are treated differently based on their religion. The rights of a Hindu woman are far more progressive than those of a Muslim woman who is governed by Muslim Personal Law based on Sharia law.

The UCC calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption. India is a country with many religions, customs and practices. A uniform civil code will help in integrating India more than it has ever been since independence. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct.

WHAT WILL UNIFORM CIVIL CODE DO??

a)?????To provide equal status to all citizens: In the modern era, a secular democratic republic should have common civil and personal laws for its citizens irrespective of their religion, class, caste, gender etc.

b)?????To promote gender parity: It is commonly observed that personal laws of almost all religions are discriminatory towards women. Men are usually granted upper preferential status in matters of succession and inheritance. A Uniform civil code will bring?both men and women to par.

a)?????To accommodate the aspirations of the young population: Contemporary India is a?new society with 55% of its population is below 25 years of age. Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity. Their view of shedding identity-based on any religion must be seriously considered to utilize their full potential towards nation building.

b)?????To support the national integration: All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are the same for all. With the implementation of the Uniform Civil Code, all citizens will share the same set of personal laws. There will be no scope of politicization of issues of the discrimination or concessions or special privileges enjoyed by a particular community based on their particular religious personal laws.

c)??????UCC is meant to replace currently applicable various laws applicable to various respective communities which are inconsistent with each other. These laws include the?Hindu Marriage Act,?Hindu Succession Act,?Indian Christian Marriages Act, Indian Divorce Act, Parsi Marriage and Divorce Act. Meanwhile certain ones like?Sharia?(Islamic laws) are not codified and solely based upon their religious scriptures.

d)?????The proposals in UCC include?monogamy, equal rights for son and daughter over inheritance of paternal property and gender & religion neutral laws in regards of will charity, divinity, guardianship and sharing of custody. The laws may not result into much difference to the status of Hindu society as they have already been applicable on Hindus through?Hindu code bills?for decades.

The arguments for it are: its mention in Article 44 of the Constitution, need for strengthening the unity and integrity of the country, rejection of different laws for different communities, importance for gender equality and reforming the archaic personal laws of Muslims—which allow unilateral divorce and?polygamy.

Arguments in favour of the Uniform Civil Code:

??It will Integrate India- India is a country with many religions, customs and practices. A uniform civil code will help in integrating India more than it has ever been since independence. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct.

??Personal Laws Are a Loophole- By allowing personal laws we have constituted an alternate judicial system that still operates on thousands of years old values. A uniform civil code would change that.

??Sign of a modern progressive nation- It is a sign that the nation has moved away from caste and religious politics. While our economic growth has been significant, our social growth has lagged behind. A UCC will help society move forward and take India towards its goal of becoming a truly developed nation.

??It will Give More Rights to Women- Religious personal laws are misogynistic in nature and by allowing old religious rules to continue to govern the family life we are condemning all Indian women to subjugation and mistreatment. A uniform civil code will also help in improving the condition of women in India.

??All Indians Should be Treated the Same- All the laws related to marriage, inheritance, family, land etc. should be equal for all Indians. UCC is the only way to ensure that all Indians are treated the same.

??It Promotes Real Secularism- A uniform civil code doesn’t mean that it will limit the freedom of people to follow their religion, it just means that every person will be treated the same and all citizens of India have to follow the same laws regardless of any religion.

??Change has been the law of nature-A minority of people should not be allowed to pick and choose the laws they want to be administered under. These personal laws were formulated in a specific spatiotemporal context and should not stand still in a changed time and context.

??Many provisions of specific personal laws are in violation of human rights.

??The codification and unification of the variegated personal laws will produce a more coherent legal system. This will reduce the existing confusion and enable easier and more efficient administration of laws by the judiciary.

??Women-equality as an ideal to be pursued in Indian politics

Supreme Court’s observations

SC ruled in favor of Shah Bano in 1985 under the "maintenance of wives, children and parents" provision (Section 125 of CRPC), which applied to all citizens irrespective of religion. It further recommended that a uniform civil code be set up. CJI YV Chandrachud had observed "It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law."

In October 2015,?Supreme Court of India?asserted the need of a uniform civil code and said that, "This cannot be accepted; otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court", the words of Justice Chandrachud in the Shah Bano case are indeed appropriate. There are bound to be "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. Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case."

Conclusions: The framers of the Constitution envisioned that it would be a uniform set of laws that would replace the distinct personal laws of each religion with regard to matters like marriage, divorce, adoption, and inheritance. Nehru government's decision of letting Muslims be governed by their personal laws while stripping Hindus of the same is the antithesis of secularism. Article 25 and Article 26 guarantee the freedom of religion and UCC is not opposed to secularism. Muslim Women remained subjugated in absence of UCC, as Muslim women, under the Muslim Personal Law, could not inherit agricultural land, Marriage, Inheritance, Divorce, Maintenance, Guardianship etc. ?

UCC should include?monogamy (?marriage?with only one other?person?at a?time), unilateral divorce (follow process, procedure & maintenance aspects), polygamy (custom?of being?married?to more than one?person?at the same?time), inheritance (equal rights to sons & daughters), succession, marriage (age &registration), adoption (process & procedure), co-parenting, Guardianship and sharing of custody of children, age of marriage, divorce process & maintenance, denial of govt. benefits to family having more than 2 children (irrespective of gender and sexual orientation, religion, caste, economic conditions), equitable legal treatment for women and aid in the eradication of gender prejudice etc.?

CA Harshad Shah, Mumbai, [email protected]