[Guest Post] Uniform Civil Code “A Socio- Cultural Perspective” with landmark judgments by Prakhar Kulshrestha


Introduction

               

“Individually we are different colors but together we are a rainbow”

 

India is family of 135 crore people who live together yet separated due to the social evils existing in the society. One of the social evils is inequality, on the basis of caste, color, creed, sex, religion, culture and beliefs etc. These social evils derive their source from the Individual laws. Individual laws[1] which are also known as Personal laws may be defined as the laws being followed by the individual of various religions existing in the country. The individual laws fetch authority from the Religious texts, beliefs, customs and norms of various religions.

The constitution of India states that India comprises of A Sovereign, socialist, secular, democratic and Republic which follows the principles of Justice, Liberty, fraternity and equality[2] yet India remains divided. The reason behind the division of India is the narrow minded thinking of people, exorbitant politicization and the orthodoxies with respect to religion in the minds of citizens of India.

Part IV of the Indian constitution accommodates of the Directive Principles of State Policy. The directive principles are non-enforceable but obligatory standards which are necessary to be followed in the administration of the nation or while making any law. Article 44 under The Directive principles creates an obligation on the state to secure A Uniform Civil Code throughout the territory of India[3]. A Uniform Civil Code (UCC) may be defined as a common law for every citizen of the country irrespective of their religion, culture, belief, caste and color etc. The UCC excludes the various individual laws of the religions and believes in the principle of uniformity of laws irrespective of the divisions or basis of inequality predominant in the Indian Society.

The individual laws prevailing in India are one the biggest reasons of the division of the country on a very large scale. The individual laws, orthodoxies in religion and the politicization prevailing in India divides the country on three major bases i.e. Gender, Religion and caste and the narrow minded thinking of the individuals of the country acts as kerosene to the fire. The division increases the crime rate and leads the nation towards downfall.

Uniform Civil Code even after 67 years of its enactment remains a dead letter law, which brings immense shame to the country and the governments. If India has to improve its current condition it has to finish the division prevailing in the country and implement a Uniform Civil Code. A UCC can solve all the major problems of India like crime rate, illiteracy, religious clashes and gender related crimes etc. Implementation of UCC will wipe out the individual civil laws related to marriage, divorce, adoption and succession etc. India has a Uniform criminal law enshrined in The Indian Penal code and The Civil Procedure Code. If India successfully implements UCC throughout its territory, no one can stop it to become a super power and achieve new heights in every field.

 

Review of Literature

 

*    Uniform Civil Code: An ignored constitutional imperative, By - M.S. Ratnaparkhi

The Book Contains An Analytical, Graphic And Yet, Judicious Study Of The Much Debated And Controversial Topic Of A Suitable Legislation On Uniform Civil Code For All The Citizens Of India Despite Their Religion Or Race Or Ethnicity In Compliance With The Constitutional Mandate Under Article 44. The Author Has Most Capably And Creditably Examined The Subject In All Its Multidimensional Aspects And In View Of The Fact That, Like In India, In Almost All Countries Of The World, Muslims Co-Exist With Other Religion/Ethnic Or Racial Groups And Are Governed By The Same Civil Laws Without Any Animus Or Discordant Relationship With Their Fellow Countrymen. Significant Ayyats Have Been Quoted From The Quran Along With Various Judicial Verdicts, The Reforms Made In Other Islamic Countries Of The World, Wherein Personal Laws Have Been Subjected To Suitable Change In View Of The Prevalent Local Conditions. The Author Has Dispassionately And Unequivocally Brought Before The Intelligentsia The Fact That Unfortunately The Subject Has Generated A Lot Of Unavoidable And Spiteful Controversy, Which Sprung Not From Reasons, But From Misconstructed Religious Sentiments. The Entire Contents Of The Book Are Thought Provoking, And They Give An Impetus To Intellectuals To Explain To The People In General, And Muslim In Particular, The Merits And Advantages Of The Uniform Civil Code And Exterminate Their Unfounded Fears[1].

 

*    Why not a Common Civil Code for all? By- M. Venkaiah Naidu

In this article, Shri Venkaiah Naidu, EX- Central minister from BJP expressed his views on implementation of UCC in India. He talked about the landmark cases on the topic like The Shah Bano, Sarla Mudgal and Shayra Bano case. He further said that it’s a matter of immense grief that India hasn’t been able to implement UCC even after its mention as a directive Principle in The Constitution of India. He says that a UCC can solve the major problems existing in the nation[2].

 

 

*    The politics of Personal laws in South Asia: Identity, Nationalism and Uniform Civil Code, By- Paratha Sarathy Ghosh

It is a political investigation of the contention encompassing the issue of the uniform common code versus individual laws from a South Asian point of view. At the focal point of the discussion is whether there ought to be a brought together perspective on the legitimate framework in a given society or a decentralized view, both evenly and vertically.

This issue is ensnared inside the strings of personality legislative issues, minority rights, ladies' privileges, national incorporation, worldwide Islamic governmental issues and general human rights. Bosses of every classification see it through their own crystals, making the discussion amazingly intricate, particularly in strategically and socially plural South Asia. Along these lines, this book endeavors to orchestrate the strings of the discussion to give an all-encompassing political investigation[3].

 

Methodology

This Research Paper has been written following the doctrinal approach. In this approach, case laws are analyzed and legal provisions are systematized and legal institutions are studied qualitatively. The author of this paper has studied various books, articles, journals, authors and the work of eminent jurists related to the topic. The author has also researched about the various personal laws existing in the country. He has done a close analysis of UCC and its unconstitutionality due to the socio-cultural reasons. This paper closely analyzed has closely analyzed all the essential points necessary for the implementation of UCC. The author has also given a reference of Special marriage act and other provisions in Indian law that need to be uniform for delivering proper justice. The researcher has attempted to provide a solution for implementing UCC in the country efficiently.

Objectives of the Research

The main object of this research is to yield a solution for the problems due to which the UCC hasn’t been implemented yet. The research seeks to keep the point of replacing the various individual laws and bringing uniform laws on their place. The research wants to aims to provoke and aware people about the UCC and the benefits it will shower upon the entire nation. The key objectives of this research are as follows-:

1.      To pick out the laws that require Uniformity.

2.      To discuss the problems being faced due to absence of UCC.

3.      To study about the prevailing Individual laws in the nation.

4.      To raise voice against the crimes being done in absence of UCC.

5.      To find out that why is it difficult to implement UCC in India.

 

       Overview of UCC in India

 

Uniform Civil Code in Goa

Goa is the only state in India that has uniform common code paying little heed to religion, sexual orientation, caste etc. Goa has a typical family law. In Goa Hindu, Muslim, Christians all are bound with a similar law related to marriage, divorce, maintenance, succession and adoption etc. The property law of Goa is also governed by the common code followed by the people. At the point when the Goa turned into a union territory in 1961 by the goodness of the Goa Daman and Diu organization act 1962 the parliament approved the Portuguese common code of 1867 to Goa which can only be changed and canceled by competent legislation.

Marriage in Goa is an agreement between two individuals of various sex to live respectively and comprise the real family which is register before the workplace of common enlistment centre. Furthermore, the specific guidelines and guideline hosts to be trailed by the gatherings after that they can live respectively and begin their life however there are sure limitations as indicated by which these classes of individual are precluded to perform marriage for instance: any partner indicted for submitting or abetting the homicide or murder of other life partner cannot marry Special Marriage Act 1954

The Special Marriage Act is an act passed by the Indian Parliament to provide marital status to the marriages of Indian citizens in foreign countries, in inter-cast and inter-religion marriages, to the people who want marry from their religious traditions. Normal marriages can also be registered under this act but they may suffer the restrictions under the act. The succession of the parties married under this act is dealt by their individual laws respectively. This act deals with special marriages, their registration and divorce. This law is like a ray of hope for the implementation of UCC. Existence of such law in India is not less than an achievement for India and Indians. Laws like this that remove inequality from the society should be increase in number to make people ready for introducing UCC as a compulsion to be followed, not an obligation to be ignored.

 

Individual laws in India

 

The Individual laws in India deal with civil matters like marriage, succession, divorce, adoption and guardianship etc. The Hindu individual laws have now been arranged, systematized and codified. The codification took place in the year 1956 when the Hindu Code Bill was introduced in the parliament. The Hindu Code Bill was divided into 4 parts or sections in the beginning that dealt with marriage, succession, divorce, adoption and guardianship etc. Now the individual laws have grown broader, they include laws like:

*       The Indian Divorce Act,1869

*       The Converts’ Marriage Dissolution Act,1866

*       The Indian Christian Marriage Act,1872

*       The Kaazis Act,1880

*       The Muslim Women (Protection of Rights on Divorce) Act, 1986.

*       The Paarsi Marriage and Divorce Act,1936

*       The Dissolution of Muslim Marriage Act,1939

*       The Anand Marriage Act,1909

*       The Special Marriage Act,1954

*       The Hindu Marriage Act, 1955

*       The Child Marriage Restraint Act,1929

*       The Foreign Marriage Act,1969

*       The Indian Succession Act,1925

 

The Muslim Religion still remains uncodified and unsystematic. The individual matters of Muslims are dealt with the individual laws and the state can’t interfere in that. The matters are solved by the sayings of their holy book Quran. Similarly, the Jews and Christians in India are governed by their own individual laws.

 

Need for a Uniform Civil code

 

Equality in the society

The Uniform Civil code if implemented will lead to equality in the society. The individual laws that currently govern the civil matters of the Indian citizens encourage inequality in the society by providing different laws for the people of different religious communities. UCC will tend to wipe out the inequalities in the laws of various religious communities and establish the concept of equal laws irrespective of religion, gender and caste etc. Such common code will lead to equality and promote the principle of national integration.

Discrimination in Indian Society is majorly done on these two basis:

1.      Religion

2.      Gender

Implementation of UCC in India will finish such discrimination.

Consistency in laws

Uniform Civil Code will lead to establishment of stable and consistent laws in the country. The existence of different individual laws for every religious community creates confusion in the minds of people. UCC will aim to provide simplified, stable and consistent laws, wiping out the existing confusion.

Enacting the principles of Secularism and socialism

The preamble of India comprises it of a Sovereign, Socialist, Secular, Democratic and Republic. The Uniform Civil Code will disconnect the civil laws from and religion for establishing the true meaning of a Secular and Socialist state. The civil matters in the country will be governed uniformly by the UCC.

Religion and Gender Equity

Enactment of UCC in India will promote justice by wiping out discrimination done on the basis of religion and gender. UCC will finish the gender equalities prevailing in the society like; Muslim men are allowed to practice polygamy while Muslim women are forbidden to do so. If a Hindu widow dies without leaving behind any heir, her property is transferred to the husband’s family. The Sabrimala case is an important case portraying oppression of women in the Indian Society

 

Indian Young Lawyers’ Association v. State of Kerala[1] (PETITION 1)

Kantaru Rajeevaru v. Indian Young Lawyers’ Association (PETITION 2)

A 4:1 greater part of the Supreme Court on 28 sept 2018 held that the uniquely followed inside the Sabarimala Temple of not permitting ladies to enter the fundamental region of the sanctuary is unlawful. The exceptionally blocked women between the ages of 10 and 50 years old from entering the primary territory of the sanctuary. The judgment held that the uniquely abused the ladies' entitlement to opportunity of religion of female admirers of god under Article 25 of the Constitution.

 

More than 50 petitions were along these lines recorded by various individuals and affiliations including Kantaru Rajeevaru, the National Ayyappa Devotees (Women's) Association, the Nair Service Society, and the All Kerala Brahmin's Association. On 13 November 2018, the Court began the conference on the petitions. As The Chief Justice Deepak Mishra had surrendered, Chief Justice Ranjan Gogoi superseded him on the Bench. Various adjudicators on the Bench proceeded as in the past: Justices Ajay Manikrao Khanwilkar, Rohinton Nariman, D.Y. Chandrachud and Indu Malhotra.

 

Following one year, on 14 November 2019, the Bench passed on a judgment keeping the review petitions pending and suggesting certain general ensured requests to a greater Bench. These general issues identify with ladies' entrance to open strict associations. By a limited 3:2 prevailing part, the Bench guessed that other chance of religion cases may scrutinize the speculation in the 2018 Sabarimala judgment and solicitation a referral. Judges Nariman and Chandrachud deviated, holding that this hypothesis went past the restricted degree of a survey appeal.

 

On 13 January 2020, another Bench containing the going with adjudicators will begin hearing the general referral questions: Chief Justice S.A. Bobde and Justices, R. Banumathi, Ashok Bhushan, Nageswara Rao, Mohan M. Shantanagoudar, S. Abdul Nazeer, R. Subhash Reddy, B.R. Gavai and Surya Kant.

 

Before clear conflicts began the referral questions, the issue rose concerning whether a Bench hearing a review advance could make a referral regardless. The understanding negating the 14 November 2019 referral battled that the Court's review region is too limited to even think about evening consider taking into account a referral. Nevertheless, on 10 February, the nine-judge Bench kept up the referral demand gave in the 14 November judgment. It held that the Court can imply a point in law to a greater seat in a review demand, in any case it didn't offer any reasons behind this finding. It has marked three other pending cases - these cases identify with Muslim ladies' privilege to enter mosques, Parsi ladies' qualification to enter a Fire Temple in the wake of having hitched a non-Parsi, and the demonstration of female genital mutilation (FGM) among the Dawoodi Bohra social order.

 

Another case that led to empowerment of Muslim women in the Indian society was the Triple talaq case with the official name, Shayara bano vs Union of India[2].

In the triple talaq case the appellant Shayara bano was married to Rizwan Ahmed, a renowned lawyer. Rizwan Ahmad divorced her wife Shayara bano by Talaaq-e-biddat or triple talaq which grants divorce to Muslims by uttering the word TALAQ thrice. Shayara bano filed a petition in the court for holding 3 practices:

1.      Nikaah halaala

2.      Polygamy

3.      Talaaq-e- biddat(Triple Talaq)

The petition of Shayara bano was accepted and the Supreme Court formed a bench of 5 judges. The apex court held that the practice of Talaaq-e-biddat is unfair and declared it as an unconstitutional practice.

 

Difficulties related with Uniform Civil Code

 

Constitutional difficulties

*      If UCC is implemented the right to freedom of religion and right to equality will come in a conflict with each other.

§  Fundamental right to freedom of religion is given to every citizen of the country under Article 25.

§  The privilege to "manage its own affairs in matters of religion", on every religious community is granted to the citizens by Article 26(b).

§  The right to conserve distinctive culture is provided under Article 29.

§  The above mentioned rights get into conflict with the right to equality before law provided under Article 14 and 15 of the Indian Constitution, if UCC is implemented in India.

*      A person's Right to freedom of religion under, provided under Article 25 is subject to "public order, health, and morality".

*       A report by the Law Commission of India in the year 2018 expressed that the UCC is "neither vital nor alluring at this stage" in the nation. The Report further said that secularism can't negate the pluralism predominant in the nation.

Social-political difficulties

*      The minorities of India think that if UCC is implemented, the culture of majority will be forced over them.

*      India is a country with diverse cultures hence bringing uniformity among every person will be a huge challenge.

 

Legal developments

The Supreme Court in Mohammad Ahmed Khan v. Shah Bano Begum[1] guided the Parliament to sanction a UCC without precedent for history of India, in the year 1985. The Supreme Court said that it is remorseful for the nation that Article 44 of The Indian Constitution has stayed insusceptible for so long. A Uniform Civil Code will prompt national solidarity by clearing different adherences to laws which have conflicting ways of thinking. This was accentuated in Jorden Diengdeh v. S.S. Chopra[2] in which the Court concluded that a legitimate intervention was defended in order to oblige a uniform code of marriage and separation. In Sarla Mudgal v. union of India[3], The Supreme Court requested for a Uniform Civil Code and held that Fundamental rights related with religion of people from any religion would not be impacted as such. In Sarla Mudgal v. Union of India, The Supreme Court requested for a Uniform Civil Code and held that Fundamental rights identified with religion of people from any religion would not be impacted as such. The court in like manner clarified that the appraisal of the court in Sarla Mudgal's case isn't definitive and is only a proposition.

 

After the judgment on Sarla Mudgal's case there came an adjustment in the legitimate example of the nation. The court in Pannalal Bansilal v. State of Andhra[4] Pradesh said that authorization of a uniform law, which is exceptionally charming, may influence the solidarity and trustworthiness of the country. India is a popularity based nation administered by the standard of law so the current individual laws must be made uniform gradually in an efficient way. The Government should concede the obligation to the Law Commission which in meeting with Minorities Commission ought to analyze the issue and draw out a thorough enactment. In John Vallamattom v. Union of India, The Supreme Court again said again requested that a uniform basic code will prompt national solidarity by emptying the coherent irregularities reliant on convictions framework.

 

As of late the courts through lawful activism have advanced endeavors to discard sexual orientation one-sided and other out of line rehearses which are wearing veil of strict practices. On 23rd September 2015, The Gujarat High Court in Yunusbhai Usmanbhai Shaikh v. State of Gujarat mentioned an evaluation of practices like polygamy and triple talaq in Muslim Personal law and broadcasted them "egregiously the male centric" . Following one month in October, the Supreme Court in Prakash v. Phulavati ordered an examination of practices like polygamy and triple talaq in Muslim Personal law and declared them “harmful to public ethics”. The court saw that there is "absolute disarray" because of individual laws administering distinctive religious practices and obligated the Center to execute Uniform Civil Code in the country.

 

Conclusion

Enactment of Uniform Civil Code will be a big step of India towards achieving heights in future. Uniform Civil code will finish the discrimination, inequality, division of people and lead the country towards national integration. People need to be made aware regarding the implementation of uniform laws, so that the fear in the minds of minority religions regarding the laws of majority being forced over them finishes. Adapting such change in laws will not be easy for the people hence it should be done slowly and gradually.

The administration can use the following ways for implement ting Uniform Civil Code in the country.

Ways of implementing UCC in India

The social change from different systematized and uncodified laws to a UCC will be time taking strategy and can't occur in a day. From this time forward, the administration must receive a "Piecemeal" approach. Government could bring separate viewpoints, for example, marriage, appropriation, progression and support into a UCC in stages.

*      Government must learn and adopt provisions from Goan practice of a typical common code, which has been the law since 1867, when the state was under the Portuguese pilgrim rule.

 

*      Besides, when constitution maintains the explanation behind UCC in Article 44, it shouldn't be puzzled to be a "point of reference based law".

 

 

*      Uniform here implies that all religions must be administered by similar standards of sex and human justice.

It will mean modernization and refinement of every Individual law.

It would mean, not a customary law, but extraordinary individual laws dependent on standards of equality, freedom and justice.

 

*      Government needs to make strides towards extending the care among everyone, especially minorities, about the noteworthiness of having a Uniform Civil Code.

 

The Uniform Civil Code must cut a harmony between the security of basic rights and strict creeds of people. It ought to be a code, which is simple and legitimate as per a man of customary reasonability, with no predisposition concerning strict and political contemplations. In the words of Leila Seth (The first woman CJI of High Court), "On the off chance that we can't give them all the rights in one go, let us progress gradually, however let us not be stale. Let us move towards sexual orientation just laws and a uniform common code."

 

The Author of the post, Prakhar Kulshrestha is a law student at Amity Law School, Noida who can be reached at [email protected]

Bibliography:

 

1.      https://shodhganga.inflibnet.ac.in/bitstream/10603/197162/8/08_chapter%201.pdf

2.      https://www.scobserver.in/search?search_keyword=sabrimala+case&search_type=all&sort_by=Relevance

3.      https://www.indialegallive.com/constitutional-law-news/supreme-court-news/uniform-civil-code-a-shining-example-72467

4.      https://www.scobserver.in/court-case/sabarimala-review

5.      https://www.lawyersclubindia.com/articles/research-paper-on-uniform-civil-code-8717.asp

6.      https://www.scobserver.in/court-case/sabrimala-temple-entry-case/plain-english-summary-of-judgment-ee5ae148-9597-479f-84d7-35d398ed5e68

7.      http://www.legalserviceindia.com/legal/article-773-uniform-civil-code.html

8.      https://www.academia.edu/12113250/A_Term_paper_on_UNIFORM_CIVIL_CODE_IN_INDIA_-ENDEAVOUR_OR_A_PERSONAL_PROBLEM_FOREVER_-AN_EMPIRICAL_STUDY_Subject_CONSTITUTIONAL_HISTORY_OF_INDIA_Submitted_By

9.      http://ijlljs.in/wp-content/uploads/2016/02/22.pdf

10.  https://en.wikipedia.org/wiki/Uniform_civil_code

11.  Prof. MP Jain, Indian Constitutional Law (8th edn, Lexis Nexis ) 1510

12.  The Constitution of India

 

 



[1] Mohmad ahmed khan vs shah bano begum1985 2Scc 556

[2] Jorden diengdeh vs ss chopra 1983 3SCC

[3] Sarla mudgil vs union of india 1985

[4] Pannalal banisalal vs state of Andhra Pradesh 1994 1 supp Scc 713


[1] Indian Young Lawyers’ Association v. State of Kerala & others (2018) SCC Online SC 1690

[2] Shayara bano V/S  Union of India SCC (C) No. 118 of 2016

 

[3] E-book available at- https://books.google.co.in/books/about/The_Politics_of_Personal_Law_in_South_As.html?id=YwvaaHI8sjEC&source=kp_book_description&redir_esc=y 



[1] Mahendra Pal Singh (ed.) V.N. Shukla’s constitutional  law of India(Eastern Book Company, Lucknow, 12th edition)

[2] The Preamble, Constitution of India

[3] The constitution of India (Bare Act) Universal publications


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