Uniform Civil Code

What is Uniform Civil Code?

Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set of laws governing every citizen. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.

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Background in India:

We have inherited our judicial and legal system from the british who left this question unresolved.

  • During colonial era, the British applied the common criminal code for all
  • But they allowed religious laws to be applied in court in case of dealing with personal disputes between people of the same religion.
  • Shariat law, 1937 was passed to govern the personal matters of all Indian Muslims by Islamic laws
  • The Constituent Assembly argued for a common personal law for marriage, divorce, inheritance and adoption, while others believed that this was a goal to be achieved in stages.
  • The Directive Principle (Art 44)—“The State shall endeavour to secure for citizens a uniform civil code”—was a compromise since the time was not right.

Some contradictions:

  • In 1954, a General Law of Marriages was already enacted, yet there was a separate Hindu Marriage Act in 1955.
  • Similarly, there was a Guardian and Wards Act already enacted in 1890 which was applicable to everybody, yet Hindu Minority and Guardianship Act was enacted in 1956.
  • There existed Indian Succession Act, 1925 and yet a Hindu Succession Act was enacted in 1956.

This shows that uniformity is needed to avoid contradictions. The idea is that there should be uniformity in the family laws enacted now onwards.

However, such practice has been observed since 1954, where a many laws have been enacted that apply to every community.

  • The Dowry Prohibition Act,
  • The Special Marriage Act
  • Domestic Violence Act
  • Maintenance of Parents and Senior Citizens Act,
  • Child Marriage Prohibition Act.

They apply to every community and every individual irrespective of the religion or personal law.

Why it is in news?

It has been  debated now and then when any muslim woman reaches supreme court demanding equality in justice for her woes imposed on her by muslim personal laws.

The issue of triple talaq is discussed in judicial circles and

The NDA government has formally asked the Law Commission to look into the issue and present a report. This is the first time a government has asked the commission, which has a crucial advisory role on legal reform, to look into the politically controversial issue of a uniform civil code.

Even if the commission starts preparing the consultations, the issue has not surprisingly assumed, political colours. Though, the motive behind the move is being questioned by opposition parties and also a section of minority leaders are expressing their concerns.

All these concerns and objections have to be addressed though wider debates and discussions and find common ground for concensus.

 

Whenever this topic is taken up, there is a certain amount of discomfort observed within Muslims. There is a feeling that it is aimed at them.

The reason for such discomfort is that there is no clear picture of what UCC will be like. For 66 years it is in constitution but no government has tried to give a draft of UCC and merely held talks in air. There even exists different views on Article 44.

There is nothing called as ‘common civil code’. The article 44 speaks of ‘uniform’ and not ‘common’ civil code. It does not ask Parliament or State to enact it straight away. The article states that ‘the state shall endeavour to secure…’ which doesn’t mean having one single law and replacing all personal laws.

  1. Triple Talaq: the infamous provision which allows a Muslim man to divorce her wife by pronouncing talaq three times.
  2. Polygamy: According to the 1961 census (the last census to record such data), polygamy was actually less prevalent among Indian Muslims (5.7%) than among several other religious groups (Adivasis-15.25%, Buddhists-7.9%, and Hindus-5.8%).
  3. Christian divorce: Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others.

 

 

Why UCC?

1.The Constitution makers had a vision to enact UCC in future to have a same set of civil laws governing all irrespective of religion.It is incorporated in Directive Principles of state policy.

 

The UCC is not with regard to religious practices. There should be a uniform civil code just like a uniform criminal code where human rights, women rights are protected and there is uniformity in implementing day-to-day affairs.

There are certain issues which require attention there is need of reform in marriage and divorce of personal law which is supported by more than 90% Muslim women.

It can also mean that when talked about UCC, it is talking about problems in minority communities.

Is UCC required?

UCC may not be even required because the constitution of India doesn’t permit discrimination between man and woman and if there is any discrimination on any basis, it will be rectified by the courts.

India is signatory to Convention on the Elimination of all forms of Discrimination Against Women. This makes India accountable to its implementation.

 

 

If there exists a law which is not in conformity with constitution, the constitution will prevail. Art 14 and 19 can’t be ignored.

Whether there is UCC or not, the constitution is sufficient and competent to protect minorities, especially Muslim women in India. Another law is not needed.

Challenges to UCC implementation

UCC is replacement of all personal laws, including minority communities. This may violate, if not taken care of, certain fundamental rights like Art 25, 26 and 29. The triple talaq is not the only issue. In shahabano case, the Muslim law was challenged for first time. Other examples include

  1. The Muslim community believes that the succession, the inheritance is recorded in Quran. If you change that, it means you are changing Quranic injunction. Whether a Quranic injunction can be changed by replaced law is the issue.
  2. Hindus were against granting equal property rights to women, fearing the concept of a joint family might crumble because of it. Thus, women have less share in property inheritance or share as per Hindu laws. A common inheritance law may pose challenges in acceptance in heavily loaded patriarchal society.
  3. Muslims do not have any adoption laws as there is no provision in Islamic law for adoption. If a future law makes adoption permissible and valid, how would it conflict with personal laws of religion?
  4. Practices such as divorce were prohibited by Hinduism and that for a Hindu the institution of marriage is indissoluble.

Balanced View

  1. Reform of religion needed and demand should come from people.
  2. As a government feels, there should be a larger debate on UCC to decide if it should be there or not. It has to perform the advisory role.

However, it needs to be seen if such debates can be done without polarising the country.

No particular time may be ripe for India to absorb a Uniform Civil Code in its entirety. It will have to be the result of gradual change that Indian society absorbs while interpreting in different ways its multicultural diversity. All communities in this country will be willing to contemplate a change gradually rather than being forced to do so abruptly


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