Ashok Bhan column: On the all-important Uniform Civil Code debate

Ashok Bhan, Senior Advocate

Ashok Bhan-

(The author is senior advocate, Supreme Court of India. Views expressed here are his own)

Uniform civil code crusaders believe that personal laws based on religion are an “affront to the nation’s unity” and add that the UCC will ensure the integration of India by bringing different communities on a common platform. They argue that it aims to provide protection to vulnerable sections as envisaged by Ambedkar, including women and religious minorities, while also promoting nationalistic fervour through unity.

When enacted, the code will work to simplify laws that are segregated at present on the basis of religious beliefs like the Hindu Code Bill, Sharia law, and others. The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions, etc, making them one for all.

The same civil law will then be applicable to all citizens, irrespective of their faith.

The Uniform Civil Code (UCC) calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, and adoption. The code comes under Article 44 of the Constitution, which lays down that the State shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India.

India is a ‘secular’ and democratic’ country. The constitutionalism envisions a separation between religion and state matters. ‘Secularism’ means equality of all religions and practitioners of all religions before the law. Currently, with a mix of different civil codes, different citizens are treated differently based on their religion.

The rights of a Hindu woman are far more progressive than those of a Muslim woman, who is governed by Muslim Personal Law based on Sharia law. Women’s rights groups have said that this issue is only based on their rights and security, irrespective of sensationalism by religious conservatives.

The arguments for it are: Its mention in Article 44 of the Constitution, need for strengthening the unity and integrity of the country, rejection of different laws for different communities, importance for gender equality and reforming the archaic personal laws of Muslims—which allow unilateral divorce and polygamy. India is, thus, among the nations that legally apply the Sharia law.

According to Experts, the Muslim Personal laws are “Anglo-Mohammadan” rather than solely Islamic. The Hindu nationalists view this issue in concept of their law, which they say, is secular and equal to both sexes. In the country, demanding a uniform civil code can be seen negatively by religious authorities and secular sections of society because of identity politics.

The only state in India that has a uniform civil code is Goa. The Goa Family Law is the set of civil laws, originally the Portuguese Civil Code, that continued to be implemented after its unification with India in 1961.

Sikhs and Buddhists objected to the wording of Article 25, which terms them as Hindus with personal laws being applied to them. However, the same article also guarantees the right of members of the Sikh faith to bear a Kirpan.

Today, Goa is a leading example of different religious groups – Catholics, Protestants, Hindus and Muslims living in harmony due to its Uniform Civil Code.

In 2015, the Supreme Court of India opined the need of a uniform civil code and said that, “This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court.”

The Law Commission of India stated in 2018 that a uniform civil code is “neither necessary nor desirable at this stage” in a 185-page consultation paper, adding that secularism cannot contradict plurality prevalent in the country.

Indian society in pre-independence era had many other considerations like socio-economic status, jati and gotra, etc, in case of marriages. While the Hindu code bills wiped out all such practices in Hindu, Jains, Sikh, Buddhist, Parsi, Christian communities, some conservative section of these societies had been demanding amendments to their Marriage Acts.

The current dispensation says the personal laws based on religion are an “affront to the nation’s unity” but adds that the UCC will ensure the integration of India by bringing different communities on a common platform. However, it has maintained that only elected representatives and the legislature will decide whether the country should have a UCC, rather than involving courts.

The issue has been at the center of political narrative and debate for over a century and a priority agenda for the Bharatiya Janata Party (BJP), which has been pushing for the legislation in Parliament. The party was the first to promise the implementation of UCC if it comes to power and the issue was part of its 2019 Lok Sabha election manifesto.

The objective of Article 44 of the Directive Principles in the Indian Constitution was to address the discrimination against vulnerable groups and harmonize diverse cultural groups across the country. Dr. B R Ambedkar, while formulating the Constitution, had said that a UCC is desirable but for the moment it should remain voluntary, and thus Article 35 of the draft Constitution was added as a part of the Directive Principles of the State Policy in part IV of the Constitution of India as Article 44.

It was incorporated in the Constitution as an aspect that would be fulfilled when the nation would be ready to accept it and the social acceptance to the Uniform code could be made.

The origin of the Unified code dates back to colonial India when the British government submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.

Increase in legislations dealing with personal issues in the far end of the British rule forced the government to form the B N Rau Committee to codify Hindu law in 1941. The task of the Hindu Law Committee was to examine the question of the necessity of common Hindu laws.

The committee, in accordance with scriptures, recommended a codified Hindu law, which would give equal rights to women. The 1937 Act was reviewed and the committee recommended a civil code of marriage and succession.

The draft of the Rau Committee report was submitted to a select committee chaired by B R Ambedkar that came up for discussion in 1951 after the adoption of the Constitution. While discussions continued, the Hindu Code Bill lapsed and was resubmitted in 1952. The bill was then adopted in 1956 as the Hindu Succession Act to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs.

The Act reformed the Hindu personal law and gave women greater property rights and ownership. It gave women property rights in their father’s estate.

The general rules of succession under the Act 1956 for a male who dies intestate is that heirs in Class I succeed in preference to heirs in other classes. An amendment to the Act in the year 2005 added more descendants elevating females to Class I heirs. The daughter is allotted the same share as is allotted to a son.

While criminal laws in India are uniform and applicable equally on all, no matter what their religious beliefs are, the civil laws are influenced by faith. Swayed by religious texts, the personal laws, which come into effect in civil cases, have always been implemented according to constitutional norms.

Laws that apply to a certain group of people based on their religion, caste, faith, and belief made after due consideration of customs and religious texts. The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts.

In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations. In Islam, personal laws apply to matters relating to inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from Holy Quran.

What will the Uniform Civil Code do?
Provide equal status to all citizens: In the modern era, a secular democratic republic should have common civil and personal laws for its citizens irrespective of their religion, class, caste, gender etc.

Promote gender parity: It is commonly observed that personal laws of almost all religions are discriminatory towards women. Men are usually granted upper preferential status in matters of succession and inheritance. A Uniform Civil Code will bring both men and women to par.

Accommodate the aspirations of the young population: Contemporary India is a new society with 55% of its population below 25 years of age. Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity. Their view of shedding identity-based on any religion must be seriously considered to utilize their full potential towards nation building.

Support national integration: All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are the same for all. With the implementation of the Uniform Civil Code, all citizens will share the same set of personal laws. There will be no scope of politicization of issues of the discrimination or concessions or special privileges enjoyed by a particular community based on their particular religious personal laws.

Bypass the contentious issue of reform of existing personal laws: Existing personal laws are mainly based on the upper-class patriarchal notions of the society in all religions. The demand of Unified code is normally made by aggrieved women as a substitute for existing personal laws as patriarchal orthodox people still deem the reforms in personal laws will destroy their sanctity and oppose it profusely.

Let Parliament build a consensus and take a final call to enact a progressive legislation.

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