By Begum zira Ahmed
Uniform Civil Code is the Constitutiol mandate to replace the persol laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen. Today, the citizens of India are governed by different persol laws, based on their religion, caste, community etc. A uniform civil code would ensure that all citizens of India are governed by the same set of secular civil laws in matters of marriage, divorce, maintence, adoption, inheritance, etc.
In India the question of uniform civil code was agitating the minds of the members of the constituent assembly also. When the tion was partitioned on the two tion theory on the basis of religion i.e. Hindu and Muslim, the Constituent Assembly debated the aspect and considered the need for uniform civil code for all, for the tiol solidarity and comprehensive integrated Indian tiols. It doesn’t in any way interfere with any religious faith. The matter of religious faiths will be private and free with non-interference by state and the persons of different religious groups inter se. It only aims at lying down uniform law by legislation for all in matters of persol law to do welfare to the people.
We have inherited common law system from the British. The laws made by the British are the laws of our land along with the Constitution. During the Muslim regime, justice was administered by Qazis applying Islamic scriptures to Muslims but similar assurance was not given to Hindus.
During East India Company Rules, Regulation Act, 1773, made provision for regulation of Administration of civil Justice without discrimition between Hindu and Muslims. The Regulation Act, 1782 prescribed that Hindus and Muslims were to be governed by their respective personnel laws in civil matters. There is no reason why the same can’t be superseded by statutory laws. In 1832, British superseded the Muslim law in crimil side and introduce The Indian Pel Code, Law of Evidence and Crimil Procedure Code.
After Independence, the demand for a uniform civil code was first put forward by the then Prime Minister Jawaharlal Nehru along with his supporters and women activists with the objectives of women’s rights, equality and secularism. After due deliberation and debates, filly the Constituent Assembly under Article 44 of the Constitution decided to add the provision for uniform civil code in the Directive Principles of State Policy to make laws for the governce of all individuals in the civil matters.
The need for Uniform Civil Code is recognised as welfarism and is a distinct directive to the state in part IV of the Constitution. Article 44 requires the state to strive to secure for the citizens of India a uniform code to bring members of all communities under a common umbrella as regards persol laws inspired by the principle of one tion, one citizenship and one law.
Article 14 of the Constitution guarantees equality, and it embraces uniformity of laws. As such Uniform Civil Code is also comprehended by Article 14 as a fundamental right of uniform laws. Added to this the Constitution makers took additiol care and incorporated the same under Directive Principles of State Policy to make it umbiguous. After the Minerva Mill case, the position has been made further clear and settled that Fundamental Rights and Directive Principles of State Policy are complimentary and supplementary to each other by making it a constitutiol dictate.
In this connection, reference may also be made to Articles 25, 26, 27 and 28 which guarantee freedom of practice, profess and propagate of any religion of their conscience. But this right is subject to public order, morality and health and to other provisions of part III of the Constitution. The protection under Article 25 and 26 is not limited to matters of doctrine of belief. It extends to acts done in pursuance of religion and therefore, contains a guarantee for rituals and observations, ceremonies and modes of worship, which are the integral parts of religion. Uniform Civil Code is not opposed to secularism or will not violate Article 25 and 26. It is based on the concept that there is no necessary connection between religion and persol law in a civilized society. Marriage, succession and like matters are of secular ture and therefore, law can regulate them. The whole matter can be summed up by the opinion of Justice R.M. Sahai, he said “ours is a secular democratic republic. Freedom of religion is the core of our culture. A unified code is imperative, both for protection of the oppressed and for promotion of tiol unity and solidarity”.
Approach of the Judiciary:
The Supreme Court has emphasized in many cases that steps be initiated to ect a uniform civil code as envisaged by Article 44. It became one of the most controversial topic in contemporary politics in the year 1985 during the Md. Ahmed Khan vs. Shah Bano case. While deciding in a claim of Muslim divorced woman, the Supreme Court stressed the need of a Uniform Civil Code for tiol integration and held that government has ‘unquestiobly’ the ‘legislative competence’ to make such a code. The Apex court ruled that a Muslim husband is liable to pay maintence to the divorced wife beyond the iddat period by applying section 125 of Crimil Procedure Code which applies to all citizens irrespective of religion.
The response to this judgement was prompt, strong and reactiory. Protestors took to the streets, disturbances erupted all over the country and Muslim leaders vowed they were prepared for any sacrifices to protect their persol law. The government, led by Prime Minister Rajiv Gandhi, reacted immediately and Parliament passed the Muslim Women’s (Protection of Rights in Divorce) Act, 1986, which effectively nullified the decision of the Supreme Court in Shah Bano’s Case.
Again in Ms Jorden Diengdes vs. S.S. Chopra, Supreme Court while deciding on a breakdown of marriage between the Christian wife and Sikh husband in a case for divorce, emphasized the necessity for Uniform Civil Code. This case demonstrate that the question of Uniform Civil Code does not affect the right of any religious group, but admittedly would improve the rights of individuals of whatever community it may be, by bringing the entire population under a common system without discrimition.
Another controversial case in regard to uniform civil code is Sarla Mudgal vs. Union of India, a case which highlights the mischief of the absence of Uniform Civil Code. A Hindu husband converted to Islam and married another woman who also converted from Hinduism to Islam, without divorcing the first wife. The conversion was declared violation of the Hindu Law of Marriage and Section 394 of IPC. The Apex Court held that this is impermissible and traced the root of such social mece in the absence of uniform civil code in India.
Recently in Seema vs. Ashwani Kumar, decided in 2006, Supreme Court held that all marriages should be compulsorily registered and that state government shall initiate action for rule-making in this regard. These judgements go a long way in the matter of need for a social legislation in the country implementing Uniform Civil Code.
The 18th Law Commission also recommended for the ectment of a Marriage and Divorce Registration Act to be made applicable in the whole of India irrespective of religion or persol laws. Thus a step towards uniform civil code has been made.
Sandwiched between the Supreme Court’s response and the Legislature’s wariness, it is clear that the implementation of Uniform Civil Code in India will remain a distant dream for a long time to come. Parliament has been uble to pass a suitable legislation in this respect, even after six long decades of independence, is because there is no sufficient support for the move within the Parliament itself.
Whilst the entire tion swings in uncertainty over the implementation of uniform civil code, the tiny state of Goa has shown the right path to the rest of the country. When a tion-wide civil code is still being debated, a positive step in this direction has already been taken by this state which applies to all communities in Goa. For social progress and solidarity codification of persol laws should be made without further delay. It is necessary that law should be divorced from religion. With the ectment of a Uniform Civil Code, secularism will be strengthened; much of the present day separation and divisiveness between the various religious groups in the country will disappear and India will emerge as a much more cohesive and integrated tion.