Home » Blog » Uniform Civil Code- Test of India’s Secular Imagination

Uniform Civil Code- Test of India’s Secular Imagination

By /

Authored By: Shreya Dhawan

Maharishi Markandeshwar Deemed to be University, Mullana, Ambala

Introduction

Our Indian constitution is the longest constitution in the world and it took almost 2 years 11 months and 18 days to draft it. Framers or drafters of the constitution have tried their best to guide the coming generations of citizens of India about their rights and duties. Other that these one of the most important chapters in constitution is the Directive Principles of State Policy mentioned under part four. These are the directions that were given by the drafters of the constitution as guidelines for future India. They are just guidelines that should be followed by the State or the goals that the State should aim to achieve and violation of these principles is not punishable in the court. One of these principles is applying a Uniform Civil Code throughout the country. This principle is mentioned under Article 44 of the Constitution of India. Uniform Civil code is a proposal to apply uniform secular personal rules governing marriage, divorce, adoption or any other family matters. Currently the application of UCC all over the territory has not been achieved but over the years steps have been taken in this regard. Goa is the first state in India to apply UCC in whole of the state in the year 1961. After this a bill called Uttarakhand Uniform Civil Code Bill 2024 has been passed and it would apply to all people of the state except Schedule Tribes. They will follow uniform laws related to marriage, adoption and any other personal laws. This report will intersect the advantages and disadvantages of applying UCC all over the country. Through this report, we will see UCC as a coin which has two sides is it a constitutional necessity? Or will it emerge as a cultural threat if it is applied? After this report we will have in front of us the possible answers to our questions with judicial reasoning.

Background and constitutional debate and development of UCC

The idea that state should be governed by a uniform code for personal laws like marriage, adoption, divorce, custody etc. was first introduced in the constituent assembly on November 23, 1978 by Dr. BR Ambedkar. This idea was opposed by most of the Muslim members of the constituent assembly as they debated that every community has a right to practice their own religion. Muslim members like Muhammad Ismail, Mahboob Ali Beg debated against UCC and demanded separate laws governing personal laws. Dr. BR Ambedkar supported the idea of a uniform code as it would promote unity and integrity in the country and assured all the members that in future, UCC would only apply to the communities which want to be governed by it in the future. And it was added as a DPSP (Directive Principle of State Policy) under Article 44 of the Indian Constitution. 

Apex court of India from time to time has reminded the country the importance of implementing a uniform code for personal laws. The famous Shah Bano case brought UCC back into focus in the year 1985. After that Sarla Mudgal case in the year 1995 and Shayara Bano case in the year 2017 urged its implementation. Let’s discuss the facts connecting them with the importance of UCC in India:

  • Mohd. Ahmad Khan v. Shah Bano Begum (1985) – This is a famous precedent also known as ‘Shah Bano case’. This case related to providing maintenance to Muslim women during the iddat period. According to Muslim customs after the divorce, during the iddat period it is not the responsibility of the husband to maintain the wife. Supreme Court saw this as the violation of rights of divorced women and passed decision in favour of Shah Bano Begum.

After this case the Apex court recommended the UCC to be implemented which will apply to all communities and protects their rights and also drawn the attention of the country to Article 44 again.

  • Sarla Mudgal V. Union of India (1995) –  A petition was files in the Supreme court for the concern of bigamy and how men convert to Islam to marry twice which is not allowed in the Hindu personal law but it is legal according to Muslim law. The Apex court ruled that the second marriage in such cases will be considered invalid.

This case again resulted in the proposition by the Supreme Court for a UCC for personal laws because the conflicts between the two major personal laws – Hindu law and Muslim law resulted in ignoring the essence of gender equality and preserving the rights of people.

  • Shayara Bano V. Union of India (2017)-  This case is known as the ‘Triple Talaq case’. Shayara Bano foiled a petition in the Supreme court regarding the constitutional validity of Triple Talaq (Husband divorcing wife by saying the word ‘talaq’, three times. She argued that it is completely gender biased act and gives ultimate authority to the husband to end the marriage. A five judge’s bench was specially constituted for this matter who ruled in the favor of petitioner in the ratio 3:2. Triple talaq was thus deemed unconstitutional.  

After this case it became more evident that yes, personal laws can be discriminatory against women. After this case many claimed that Muslim women would benefit the most if UCC applies because they tend to suffer the most because of gender inequality.

Current framework governing various religions

In the current scenario, Hindus( including Sikhs, Jains and Buddhists) are governed by Hindu personal laws comprising of Hindu Marriage Act,1955 , Hindu Succession Act, 1956, Hindu adoption and maintenance Act, and Hindu Minorities and guardianship Act.

Muslims are governed by Muslim personal law (derived from Sharia) which is not codified yet.

Christians, Parsis and Jews are governed by their own personal laws like Indian Christian Marriage Act, 1872)

How UCC can be termed as Constitutional necessity?

Reduction in gender Biasness- Under Article 14, the Indian Constitution grants the fundamental right to equality to every individual but in many personal like for example, Muslim law may instances of gender inequality had been seen in the past which violates Article 14. If our Parliament succeeds in implementing UCC all over the territory, it would reduce gender biasness and promote equality.

Supremacy of Constitution- We have always talked about how our Indian constitution will always be supreme and nobody is above it. If we are governed by uniform personal laws this would promote the principles of equality, secularism and gender justice rather than different laws for different communities.

Sense of brotherhood –the sense of unity or brotherhood is one of the core values that should be present in the people of India according to our Indian Constitution. It provides the essence of what the makers wanted our nation to be- united and integrated. By implementing a uniform code, we will be able to capture the true essence of our constitution if all the communities will be governed by a single personal law.

How can UCC prove to be a Cultural Threat?

‘Unity in Diversity’ is very famous slogan that every Indian proudly used to define the culture of our country. We accept that we are diverse but we still manage to find unity in the love for our country that we hold in our hearts. We once have to rethink and many changes have to be made in our implementation process if we want to implement a UCC in India. These steps and changes are very necessary if we want peace and no conflicts following a single code for personal law. We can many challenges that can prove to a cultural threat for our country such as:

Violation of Article 25 – This Article of the Indian Constitution guarantees to every citizen the right to practice, promote or profess any religion and personal laws are also made out of believes and customs of various communities. So, it could prove to be a major conflict if we ever plan to implement UCC.

Threat to minorities– One of the major reasons that UCC is still not applied after so many debates over the time is that it could prove to be a threat to minorities. Minorities like Muslim and Christian communities are concerned that the laws would be made on a ‘majoritarian’ basis i.e. keeping in mind the needs for majority communities.

Disrespect of customs– Many communities have unique customs that they follow as personal laws. These communities believe that if UCC apply it would be a threat to their identity and disrespect to their customs if they will not be allowed to follow them.

Essence of UCC

There are few examples in which there is a clear clash between the laws of various religions like section 494 IPC, which says you cannot marry a person if you are already married once and have a living spouse but this section does not apply to Muslim men as they can be married four times.

One of the main aspects that we also discussed above is the issues of maintenance that can vary for Hindu and Muslim women. Also, Hindu women have equal property rights whereas Muslim women have can claim less than half of the property of their husband or father. The point of UCC is not to radicalize society but it is to remove such laws from the society which are discriminatory, derogatory and they are not morally or legally right or fair to any person or are unconstitutional. 

Our current ruling party had mentioned various times in their proviso about implementing UCC and how it is necessary for the country. If the country ever steps forward to applying UCC National interests and human rights should be given utmost pedestal in order for UCC to be successful in the country. Implementing UCC should not mean favoring a dingle religion in any way it would definitely create national distress in the country. 

No religion should be deprived from following their customs but UCC if implemented would ensure that while following customs there should not be any person who is deprived of their basic human rights and especially their right to dignity.

Way forward

Implementing UCC is great initiative but considering the cultural diversity of the country it can always backfire if not implemented keeping intact the cultural importance and creating a system for constant check and balance. If India wants to adopt UCC, rather than abrupt and sudden changes, it should adopt frameworks like consulting, consensus building and slowly incorporating uniform personal laws instead of all at once.

Governments should learn from state initiatives like Goa uniform civil code and Uttarakhand Uniform Civil Code combined with making public aware about the benefits and ease of having a UCC in the country and how they can benefit from it.

Even if the UCC implements, the State will always have to keep a system of checks and balances keeping in mind the diversity of cultures and the possibilities of arising conflicts, also minorities of the country should also be kept in mind before taking any decision. Only then UCC would benefit in the country like India.

Conclusion

To conclude, we have a long way to cover from diversity to harmony in our country. Whether Uniform Civil Code is a constitutional necessity or a cultural threat is a fundamental question that we have tried our best to answer. UCC is a constitutional goal which needs to be achieved keeping intact the beauty of diverse culture our country has. Case laws from time to time keep reminding us the need to a UCC and now its high time we start thinking in this direction.

Reference(S):

Related Posts

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top