Rev. Dr. Francis Assisi Almeida
2.3. UCC in the post-Constitution Era:
The provision for the UCC is included under Part IV of the Constitution. Article 37 of the Constitution mentions that provisions of Part IV of the Constitution are non-justiciable rights. It means they cannot be enforced by any court of law. They can only be used while enacting laws and formulating policies for better governance of the country. While inserting Article 44 under the Constitution (then it was Article 35), the framers of the Constitution did not emphasize its implementation mandatorily but as an aid to the government in formulating welfare policies or laws.
Also Read:
Part I: Uniform Civil Code: A Mere Uniformity or Unitedness
Part III: The Challenges in Implementing the UCC
After the implementation of the Constitution, several attempts have been made to reform certain legal provisions concerning some communities in line with UCC. First among them was the introduction of Hindu Code Bills. Even though the attempts were started prior to Indian independence to introduce the Hindu codes, they were carried out during the 1950s. Between 1955-58, several bills relating to Hindus, namely, the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act, saw wide reformation and included Jains, Buddhists, and Sikhs under their jurisdiction. But the personal laws relating to Muslims, Christians and Parsis were untouched. The Hindu Succession Act of 1956 further saw an amendment in the year 2005 with a provision to include a claim of daughters’ share in their ancestral property. In 1954, the Special Marriage Act was introduced to provide avenues for couples to get married outside their respective personal laws.
- Judiciary on UCC The genuine intention, as intended by the framers of the Constitution, to introduce the UCC was primarily to annihilate personal laws in all the communities irrespective of their custom, religion and beliefs, tradition etc.
to bring unity and also to do away with gender inequalities that prevailed in the communities due to their personal laws. Similar points came before the Supreme Court and other High Courts regarding marriage and property matters. First among such cases was the Shah Bano Begum case (1985) where an elderly divorced lady under triple talaq approached the courts for not getting the maintenance from her husband and got orders in her favour. Feeling aggrieved by the High Court orders, her husband approached the Supreme Court and sought relief claiming that he had followed all the procedures according to his personal laws. The Supreme Court, while delivering the judgment, upheld the maintenance rights of Shah Bano Begum under section 125 Criminal Procedure Code and further, recommended the Centre for setting up of the Uniform Civil Code.
Subsequently, in Daniel Latiff v. Union of India (2001) the Muslim Women’s Act was challenged holding that it violates Articles 14, 15 and 21 of the Constitution. The Supreme Court while upholding the invalidity of the said Act, observed that divorced women are entitled to claim maintenance, under the laws of the land, irrespective of their religious affiliations.
In 1995, an issue relating to bigamy came before the Supreme Court in Sarala Mudgal Case. The Supreme Court, in this case, observed that conversion to the Islam religion to contract a second marriage is bad in the eyes of the law and will not dissolve the first marriage contracted under Hindu Marriage Act. The Supreme Court, in this case too, urged the Government to formulate a Uniform Civil Code based on the model of the Hindu code to protect the victims in marriage cases and attain national solidarity.
In the John Vallamattom case, when the validity of section 118 of the Indian Succession Act that imposed unreasonable restrictions on Christians in bequeathing their property in a donation to a religious or charitable purpose under a will was challenged, the Supreme Court struck down the section and held it to be unconstitutional.
In ABC v. State (NCT of Delhi), the Supreme Court upheld the right of a single mother to apply for sole guardianship of her child without the consent of the natural father under the Guardian and Wards Act of 1890.
The said Act had not recognized the right of Christian single mothers to have guardianship. The Court observed the inconveniences caused due to the lack of a UCC and recommended the framing of a UCC.
In 2020, the Supreme Court interpreted the Hindu Succession Act to ensure gender equality by securing the right of women to inherit property and have equal coparcenary rights in ancestral property under the amended Act of Hindu Succession Act of 2005. Further, in 2021, the Allahabad High Court while handling an issue regarding conversion and interfaith marriages, observed that the enactment of uniform family laws is necessary to allow all the citizens of the country to mingle freely without having any hindrances under different personal marriage laws and also for the national integration.
4. Why UCC is in vogue today?
The Supreme Court directed to set up the Uniform Civil Code in the Shah Bano case in 1985 to facilitate national harmony and equality before the law by doing away with gender inequality, the Parliament, per contra, took a different stance and enacted a law i.e., Muslim Women’s Protection of Rights on Divorce Act in 1986. In the subsequent cases, the apex court and the high courts have affirmed the same. The election manifesto (2014) of the Bharatiya Janata party which came to power at the Centre in 2014 specifically adopts that unless Uniform Civil Code is implemented, there cannot be gender equality, and further, it assures that a uniform civil code shall be drafted taking into account the best traditions by harmonising them with the modern times. The focal point, as intended by all, is bringing gender equality, especially between men and women in society. In the general opinion, women, who normally come under the gender-discrimination, are considered to be the beneficiaries of the UCC.
5. Observation of 21st Law Commission on UCC:
21st Law Commission, in its study paper on “Reform on Family Law”, comes out with a conclusion that UCC may be required to eradicate the prevailing inequality between men and women under personal laws and further, it opined that it is discrimination and not a difference that lies at the root of inequality. The Commission had the opinion that before establishing equality between the communities, equality within the communities is much warranted and by bringing amendments to personal laws, the existing inequality within the communities may be remedied. Based on these proposals the government initiated its procedure and one among them is the prohibition of the triple talaq. Another issue pending before the government is the equal age of consent for marriages. In conclusion, the Law Commission also opined that the formulation of a Uniform Civil Code is neither necessary nor desirable at present.
6. Critical Analysis Regarding the Enforcement of UCC:
The secularism of India is well exemplified not merely in the preamble of the Constitution but flows throughout the draft. The Supreme Court, in the TMA Pai case, describes the notions of secularism and it observes that the kernel of secularism is to recognize and preserve the different types of people with their diverse languages and beliefs and to unite them together to have a united India. Unity doesn’t mean oneness.
Unity also can be brought among diverse people bringing them together by respecting their beliefs, customs, culture, traditions and other aspects that differentiate one from another. United India can be formed by respecting the above-mentioned traits by considering the diversity implanted in different religious communities and harmonizing them for a common understanding. The government’s stand to introduce UCC might have been the fulfilment of the long-standing desire of some selected categories of people or coloured with an idea of protecting the discriminated people in society. No doubt, it cannot be discarded that UCC may be a need of the time for some reasons but it is also important to know the methodology of its formulation and the purpose and intention of the implementing bodies.
6.1. The positive side of the UCC as defended by some:
6.1.1. United and integrated India:
The brighter side of the UCC seems to be to form a united India, and to achieve the same the UCC can be a great help. Personal laws of different religious communities may hinder bringing unity and integrity among the people of India. Despite having different cultures, traditions, ways of living, etc. unity shall be achieved under UCC by incorporating them under one code respecting the diversity found in all the personal laws.
Though it looks to be good at the peripheral level, difficult to achieve as India is a multi-religious, multi-cultural and multi-linguistic country.
6.1.2. A Great Help in the justice delivery system:
Whenever matrimonial issues appeared before the judiciary, involving two different religious communities, unlike normal cases, the courts find it difficult to decide the matter as the personal laws of the parties hinder them to decide it amicably and speedily. The judiciary also felt such cases prolong unnecessarily and consume lots of time for the courts. Therefore, a uniform civil code may secure the rights of victims and also help the judiciary to adjudicate matters speedily.
6.1.3. Justice to the disadvantaged group of people or victims:
Equality is one of the important fundamental rights under the Constitution of India. Some are of the opinion that under personal laws, there are provisions that discriminate and victimize women, and such provisions if allowed in this modern world, will surely amount to discrimination and negation of their fundamental rights guaranteed under the Constitution. To rectify those mistakes, it has warranted the necessity of the Uniform Civil Code that eradicates the disparity and discrimination sheltered under those personal laws. The assumptions are, what is bad in theology cannot be good in law and therefore, practices that affect equality within the community need to be repaired.
6.1.4. Real Secularism:
The promoters of UCC assert that the UCC shall secure real secularism as it treats every person on an equal footing without giving any avenues for ill-treatment, irrespective of one’s caste, creed, and religious background. Secularism, under Indian Constitution, is maintaining the diversity of all religious communities and building a united India. The view of the supporters of the UCC is that it would bring all the people under one umbrella without differentiating them based on their customs, beliefs, traditions etc. The final outcome of UCC would be equality among all.
6.1.5. A step towards building a Progressive Nation:
Every nation, in this modern world, must do away with its negative aspects and get rid of caste and religious politics and must give prominence to the development in the fields of economy and technology. In the presence of personal laws, it seems to be, there are possibilities of their misuse for caste and religious politics and may hamper the growth of the nation.
6.1.6. Personal laws have nothing to do with religious practices:
Some strongly argue that personal laws concerning marriages, divorce, adoption, inheritance, etc. have nothing to do with the religious practices of any community guaranteed under Article 25 of the Constitution.
In the larger interests of the community, they are treated to be purely social aspects and solely related to mundane things of a community and considered not integral parts of any religious practices. Further, even if some practices attract religious rituals, reformation can be done under UCC by retaining them without harming their religious aspects.
Tomorrow: The challenges in implementing the UCC