UNIFORM CIVIL CODE

UNIFORM CIVIL CODE 

Introduction

1. debate revolves around 3 issues
1. Secular nature of Indian state
1. India will become truely secular after adopting UCC.
2. for them secularism means religious neutrality
2. National Integration
1. so long communities follow personal laws, get special rights, national integration is not possible
3. Gender Justice
1. favoured by feminist
2. result into equality before law, human dignity
3. rejection of customs discriminating towards women
4. most controversial is right of muslim women
2. debated even in constituent assembly
1. Hansa Mehta, KM Munshi, Rajkumari Amrit Kaur favoured UCC
2. minority members like Ismail Saheb, Pocker Saheb opposed UCC
3. Pt Nehru, Ambedkar favoured UCC
1. thought when conditions become condusive
4. hence UCC placed in part 4
5. Constitutional provisions
1. art 44: state shall endeavour to introduce Uniform Civil Code
2. endevour shows that govt will take special efforts
6. hence constituent assembly favoured
3. definition
1. European concept of 17th century
1. linked to process of modernisation and secularisation in west
2. european rejected Pope's authority
3. no restriction on power making by state: Hobbes: liberty is where law is silent
4. hence, laws governing family, marriage, divorse, inheritence, (personal laws) came within scope of legal sovereignty of state
5. John Locke: religious freedom means freedom of conscience
1. doesn't include right to practice, profess propagate religion
2. UCC sybolises power of state to make personal laws
1. doesn't necessarily mean common code for all communities
3. uniformity?
1. since laws are brought to conform to constitution, they appear uniform
4. debate in india
1. basic question is whether indian state can intervene in personal laws of the communities
2. question mark whether indian state can even interpret the personal laws
3. eg- controversy in case of Shah Bano case and Shariya Bano case about whether SC can interpret what is written in quran. main controversy wrt instant triple talaq
4. debate due to conflicting provision in the constitution
1. in chapter 3, both individual and community rights are mentioned
2. universal citizenship as well as differentiated citizenship based on multi-culturalism exist
3. art 14 guarantees: equality before law
4. art 29-30 guarantee community based rights
5. apart from right of conscience, freedom to practice religion is also given which is through personal laws
6. right to religion under art 25 is subject to public morality, decency, order
1. this creates scope for state's intervention
7. art 13(2): any law in contravention to part 3 will be void whether before or after coming of constitution
1. eg- Narasu Appa mali case Bombay HC: personal law don't come in definition of law used in art 13, thus providing complete immunity to personal laws
2. in triple talaq case, SC overruled the limitation of NAM case of bombay HC
8. earlier on the basis of Narasu case, religious customs can't be challenged on the basis of violation of fundamental rights
9. in Shyara Bano case, Sabrimala case it has become clear that customs, traditions are not immune to power of judicial review
4. codification of personal law
1. british codified personal laws related to christian and parsis
2. there was opposition to codify hindu personal laws
1. even Ambedkar faced stiff resistance against codifying hindu laws in the form of Hindu Code Bill
3. recently, a separate law known as 'Anand Marriage Act' has been codified for sikh community
4. muslim personal law have not been codified
1. as per All India Muslim Personal Law Board: Shariyat Application Act 1937, state shall not intervene in muslim personal laws
5. Special Marriage Act also exist: person can choose this against religious

Status of codification of muslim personal Law

1. 1937 act prohibits state from interfering
2. as per religion, muslims are not supposed to live under man-made laws
3. there is codification in many countries, but they are islamic countries
4. there are different interpretation in islam's different sects
1. these communities need to first arrive at consensus
5. although indian state (parliament, judiciary, executive) have intervened in personal laws

Shah bano case 1985

1. SC held that muslim women can get maintenance like hindu women in case of divorse, even after 'iddat' period
2. parliament overturned the decision by making law and restoring status quo

Sharya Bano case 2016

1. SC held that talaq-e-biddat is not essential according to quran
2. GoI passed the bill and ordinance for the same

Position of SC wrt UCC

1. position has changed
2. earlier SC had directed to bring UCC in accordance with directive principle
3. later only suggested
4. Sarla Mudgal case, SC: absence of UCC impacts adversely to muslim as well as hindu women. hindus convert to islam for the sake of second marriage which is disrespectful for the religion
5. Sharya Bano case; didn't direct govt for UCC
6. approach of govt: govt interpreted SC decision as direction to implement UCC.
1. referred matter to law commission in June 2016

Opinion of Law Commission :

1. not possible and desirable due to absence of consensus
2. possible repurcussion remain untested
3. change should preserve the diversity, plurality
4. first step should be achieve equality for men and women within the community
5. codification should no be uniform, it should just remove the discriminatory practices
6. freedom of religion should be protected but evils not take refugee in the name of social customs
7. if practices violate human dignity, even if they are essential, they should be not allowed

Opinion of Feminist Scholars

1. Flavia Agnes- Jurist
1. UCC won't bring justice automatically
2. constitution doesn't envisage uniformity
3. since personal law in concurrent list, hence constitution permits diversity
4. eg- ethnic communities under schedule 6 are allowed to practice tradition
2. Nivedita Menon- Pol. sci.
1. muslim personal laws are more advanced than hindu personal laws.
2. eg- all wives have equal status. bigamy is more among hindus

Conclusion

1. doing right thing also requires right manner, right time and above all right intention
2. UCC has nothing to do with secularism, nationalism.
1. it has to do with gender justice
3. stand by hindu rightist weakens position of liberals and strengthens the position of orthodox muslims
4. judiciary making decision is better than parliament which doesn't represent minorities
5. human rights have to be treated as touch stone
6. spice meal approach removing discrimination and preserving diversity should be taken. as suggested by Law Commission.