Article 44 of the Directive Principle in our Constitution says that “State shall endeavor to provide for its citizens a Uniform Civil Code (UCC) throughout the territory of India”. Directive Principle under part IV of our Constitution are not justiciable (i.e., not enforceable by the court) in nature including Article 44 but they are kind of fundamental duties that the State should consider while formulating policies and laws. Former Chief Justice of India M C Chagla said that ‘if all these Directive Principles are fully carried out, our country would indeed be heaven on earth.’
Over the years Supreme Court (SC) has very explicitly stated the need for the Uniform Civil Code in India. Starting from its judgment in the famous Shah Bano case in 1985 and very recently in 2019 apex court has again expressed its disappointment over the lack of UCC.
In addition to SC judgments and statements what make UCC a topic of discussion is our BJP-led NDA government. Three main goals of BJP, very explicitly stated in its manifesto, are an abrogation of Article 370 in Jammu and Kashmir, building Ram Temple in Ayodhya, and enactment of UCC. Earlier two it has already achieved despite huge protests and difficulty. Therefore, it is very obvious to assume that soon UCC will be one of the hottest and debated topics in country in coming years.
Before we move on, first we need to understand:
What is Uniform Civil Code?
UCC refers to a single law applicable to all citizen, irrespective of caste, religion, creed, etc. in the areas mentioned below
- Marriage and Divorce
- Adoption and Maintenance
- Custody and Guardianship
- Succession and Inheritance
It aims to abolish differences in personal laws (laws pertaining to the above-mentioned areas) in different religious communities.
If you have read our previous article titled ‘Evolution of Personal Laws’ you would know that by the 1950s Hindu, Sikh, Jain, Buddhist, Christian, and Parsi had progressive and liberal personal laws and were in conformity with contemporary needs. Whereas Muslim personal law was still based on old religious texts and practices which was further legalized by the Muslim Personal Law (Shariat) Application Act, 1937. This law had a lot of deformities in the form of gender inequality in matters of divorce and maintenance, and no adequate safeguard for vulnerable women, etc. Over the years we have observed several landmark legal cases which have brought these defects in Muslim Personal Law in visible light. This will be huge mistake to call personal laws of other religion defectless, they too have several defects but they have either been removed or are not of major concern. Following are few cases which have called for reforms in Muslim Personal laws
1. Shah Bano Case (1978)
This was a case pertaining to maintenance. Shah Bano was a 62-year-old lady, married to a prominent lawyer in Indore Mohammed Ahmed Khan for almost 50 years. She demanded a claim for maintenance under section 125 of the Code of Criminal Procedure, 1973. However, Ahmed being a lawyer argued that he is only liable to pay for the period of ‘Idaat’ i.e., for 3 months after the divorce under Muslim Personal Law.
In 1985, SC ruled in favor of Shah Bano and ordered to provide her maintenance and also urged the need for UCC to counter gender inequality in personal laws.
The religious leadership of the Muslim community opposed this judgment and feared Rajiv Gandhi Congress Government reversed this judgement by enacting Muslim Women (Protection on Divorce Act), 1986. This law said that maintenance can only be provided for the period of ‘Idaat’.
2. Daniel Latifi Case
Daniel Latifi was the lawyer of Shah Bano and he challenged the constitutional validity of Muslim Women (Protection on Divorce Act), 1986 under Articles 14,15, and 21. However, SC held the law constitutionally valid but it also stated that the amount provided during the period of ‘Idaat’ should be large enough to maintain living of divorced women during ‘Idaat’ as well as for her remaining life.
3. Sarla Mudgal Case (1995)
Bigamy in India is not permitted except to certain tribes and communities whose personal laws allow them like Muslim Personal Law. This case shows that how loopholes in personal laws are exploited by some people. A man named Jitendra Mathur married a Hindu woman and had 3 children and later on converted himself to Islam only to marry other women (who also converted to Islam along with him) without divorcing the first one. He argued that he could have 4 wives under Muslim Personal Law. Further, he again converted himself to Hinduism and went to his first wife.
In this case, SC said that such cases will keep on arising until India had UCC.
4. Shayara Bano
A Muslim woman Shayara Bano married Rizwan Ahmed for 15 years. Rizwan Ahmed gave her divorce through speed post by writing the word ‘Talaq’ three times. She filed a petition in SC regarding three practices Talaq-E-Biddat, Nikah-Halala, and Polygamy, and demanded to hold them unconstitutional.
- Talaq-E-Biddat: Divorce by a man by uttering or writing the word ‘Talaq’ three times
- Nikah-Halala: A practice in which if a Muslim divorced couple wants to remarry then a divorced wife has to marry another man first and form a physical relationship and then get divorced. Only after doing she will be allowed to remarry her first husband.
- Polygamy: Practice of marrying more than one wife.
SC in August 2017 gave its judgment and made the practice of Talaq-E-Biddat unconstitutional although restrained itself from interfering in the other two. Pakistan abolished triple talaq in 1956.
5. Shabana Hashmi case
This case again demands UCC, you would be surprised to know that no other religion other than Hindu, Sikh, Jains, and Buddhist can have any legal procedure of adoption under their respective personal laws. Shabana Hashmi adopted a girl, later on, she gets to know that she only has guardianship rights over this girl which means she will not have any obligation and responsibility after the girl becomes an adult. As a result, went to court and demand that adoption should be a fundamental right and the court ruled in her favor and said anyone can adopt a child irrespective of religion under the Juvenile Justice (Care and Protection of children) Act, 2000.
This shows that existing personal laws do not have entirety in them.
Need for Reform
The above mentioned are only a few examples out of many where the need for a uniform civil code has been felt. You would have observed that all the above-mentioned cases are pertaining to Muslim Personal Law that is because Muslim religious leadership (such as Muslim Personal Law Board) is the only major opposition to UCC. If UCC is brought changes in other religion’s personal law will be minute compared to Muslim personal law which is still based on traditional religious texts and the ‘Qazi-Mufti’ system.
You would have also observed that all the cases above are violating women’s rights. Muslim personal law currently practiced is highly biased towards men in a world where women are raising their voices for their natural rights. Moreover, top positions in religious Muslim organizations are being occupied by orthodox men therefore, it is obvious to assume that they will oppose any such changes as it threatens their very survival.
These practices in personal laws which fail to recognize women’s dignity, liberty, gender equality need to abolished ASAP. It does not matter whether these personal laws are being reformed individually or reforms come into the form of UCC. But UCC is preferred as it will not only reform civil laws but has the potential to mitigate tensions between religions as it will give a sense of belonging to one nation and one law.
The communities and groups against UCC defend their argument under Articles 25 and 26 which provide for Fundamental Rights (FR) pertaining to the ‘Right to freedom of religion’. However, even though FR, are not absolute in nature, they are subjected to public order, morality, health, and other provisions relating to FRs. This means that they can be restricted if they violate other FRs in the name of religious freedom. This implies that UCC cannot be stopped on these grounds.
Attack on Religious Diversity
People against UCC say that UCC will take away the religious diversity of India. Well, this is not true, a good example of this can be the Hindu Civil Code (HCC) which is a uniform civil code for Hindus, Sikhs, Jains, and Buddhists. These religions are as different in their core religious practice as they were pre-HCC, uniformity has only come in the legal process. For example- A Hindu marries in the temple performing ‘Saat Phere’ whereas a Sikh marries performing ‘Laavan Phere’ in Gurudwara.
List of Personal Laws Operating currently
Hindu, Sikh, Jains,
|1. Hindu Marriage Act, 1955 |
2. Hindu Succession Act, 1956
3. Hindu Minority and Guardianship Act, 1956
4. Hindu Adoption and Maintenance Act, 1956
|Christian||1. Christian Marriage and Divorce Act, 1871|
2. Indian Succession Act, 1925
3. Guardianship and Wards Act, 1890
|Parsi||1. Parsi Marriage and Divorce Act, 1936|
2. Indian Succession Act, 1925
3. Guardianship and Wards Act, 1890
|Muslim||1. Muslim Personal Law (Shariat) Application Act, 1937|
2. Dissolution of Muslim Marriage Act, 1939