The long pending need for Uniform Civil Code and its importance
After duly done with its agenda of abrogation of Article 370 and introduction of CAA, Union Government has set eyes on its next aim – Uniform Civil Code. This has been a part of the manifesto of the BJP since time immemorial. The just out speeches and interviews addressed by various key position holders in the party and the RSS indicated that all the party’s ideological supporters are vigorously waiting for that day to come. In a recent speech given by the newly appointed General Secretary of RSS, Shri Dattatreya Hosbale, he mentioned that a public debate would clear the air of doubts on this topic.
Execution of the Uniform Civil Code has become the fulcrum of debate for a long time. The Constituent Assembly of India, while devising the Constitution, inserted Article 44, which says, “Uniform civil code for the citizens The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’’ as a Directive Principle of State Policy. DPSP though not binding but are taken into consideration while formulating a law in the Parliament. The then members of the assembly opinionated that Uniform Code throughout the country will bring a sense of unity, equality and uniformity amongst the citizens of India. On this issue, the assembly was divided into two parts: on one side, there were people like K.M. Munshi and on the other end were Kazi Syyed Karimuddin and Maulana Hasrat Mohani. Muslim members of the Assembly believed that the protection of personal laws must be a priority. Consequently, a majority of 5:4, the subcommittee on the Fundamental Rights, decided that UCC should not be adopted as a Fundamental Right.
UCC mainly focuses on formulating a common law dealing with all religious communities in matters such as Marriage, divorce adoption, etc.
Article 25 of the Constitution provides an individual with a right to follow any religion, and Article 26(b) gives every religious community the independence to manage their own affairs. Though Article 25 is subject to ‘Public order and morality, we have discerned the shortcomings in the Muslim marriage law. For Example – In Muslim Law, in the case of ‘Triple Talaq’, the woman has to follow the practice of ‘Nikah Halala’ and, according to which she has to marry another man, consummate the marriage, and get divorced again to remarry her former husband. As a piece of evidence, it’s utterly against ‘Public order and Morality’. Following this case, many petitions have been filed in Supreme Court against Nikah Halala, and Bharatiya Muslim Mahila Andolan (BMMA) is one such petitioner. As a result, Supreme Court issued a notice to Central Government on Nikah Halala, and the BJP is determined to criminalise this practice. It seems if UCC implemented, it would help in doing away with such draconian laws.
Uniform Civil Code doesn’t imply a Hindu Code. Rather it focuses on taking liberal values from all personal laws and then formulate a code that is best suited for the betterment and empowerment of the society.
Goa is the only state in India to have a Uniform Civil Code. As the Portuguese governed Goa before independence, and when they left, the state adopted the Portuguese Civil Code. Therefore, if such a case is registered in Goa, a Muslim man cannot practise polygamy. On this ground, recently Supreme Court referred to Goa saying – “shining example of UCC”.
Apart from this, Supreme Court, at instances in its judgements and statements, directed the Parliament to frame a policy for UCC. For the first time, it happened in Ahmed Khan v. ShahBano, in which the court held that a Muslim woman is entitled to maintenance apart from the sum of mahr even after the Iddat period ends. After which conservative Muslims started opposing the judgement saying that it is direct interference in personal religious matters. Initially, the Rajiv Gandhi government of that time favoured the judgement as a consequence of which Congress started losing elections in the Muslim dominated parts. The Rajiv Gandhi government surrendered to the pressure, and to appease the Muslim community, the Parliament enacted the Muslims Women (Protection of Rights in Divorce) Act, 1986. According to MWA, the Mahr and maintenance were to be paid to a divorced woman only during the period of three months of Iddat. This disallowed a divorced Muslim woman to file a petition in court for maintenance.
After this, the case of Sarla Mudgal came into the picture in 1995 when a Hindu husband married under Hindu law embraced Islam to solemnize the second marriage. The Supreme Court held that adopting Islam for a second marriage is an abuse of Personal laws. In this case, the court directed the government to work upon Article 44.
Chief Justice of India, V.V. Khare in John Vallamattom v. Union of India struck down Section 118 of Indian Succession Act and stated that – “Article 44 provides that the State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India. It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies”.
Juvenile Justice Act, 2014 paved the way for UCC as it allowed people of the Muslim community to adopt children who were earlier prohibited under Muslim Law. And while delivering the judgement on this Act, Supreme Court again asked the Government to form UCC.
In a recent judgement, Supreme Court termed Fatwas as illegal and said that it has no place in Independent India and cannot target innocent. In one of its reports, the Law Commission of India suggested that emphasis should be laid on reforming personal laws.
We have witnessed that many personal law boards and the so-called leaders of religious communities confronted UCC face to face; as a reason, UCC will take away the rights of these fancy boards to regulate a religion according to their personal motives. But certainly, neither it strips an individual to follow her/his religious beliefs nor does it lays an impact over Article 25 and Article 26 of the Constitution.
Subsequently, after onlooking many incidents of gender and religious inequality, entire India, in one voice, appeals for the implementation of UCC in the country.