The Debate on Uniform Civil Code (UCC) has been rekindled once again after Delhi High Court’s recent order on a plea involving the applicability of the Hindu Marriage Act, 1955 in respect of parties belonging to Meena Community.
In an order released Friday, Justice Prathiba M Singh said“The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope.”
WHAT IS UNIFORM CIVIL CODE?
The Uniform Civil Code (UCC) calls for the formulation of one civil law for India, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc. It comes under Article 44 of the Constitution, forming a part of Directive Principles of State Policy. It says that the state shall “endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
Currently, different laws regulate these aspects in India for adherents of different religions, for example, Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Parsi Marriage and Divorce Act. However, Muslim personal laws are not codified and are based on their religious texts.
UCC IN CONSTITUENT ASSEMBLY
The draft constitution had the mention of Uniform Civil Code in the Article 35. The Constituent Assembly took up Draft Article 35 for debate on 23 November 1948. As the text of the Draft Article suggests, it directed the State to bring about a uniform civil code across India.
The debate around the Draft Article triggered conflict. Most of the opposition to the Draft Article came from Muslim members such as Mohammad Ismail from Madras who moved the provision which provided that ‘any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law’.
He advocated that the right to adhere to one’s own personal laws was one of the fundamental rights. He asserted that personal laws were a part of the way of life of the people. In his evaluation, personal laws were the part and parcel of religion and culture. Any interference with the personal laws, in his view, would tantamount to interference with the very way of life of those who had been observing such laws from generation to generation. The arguments mobilised to attack the Draft Article also included that, the Draft Article would create disharmony within the Muslim community and it was wrong to interfere with personal law without the approval of religious communities.
The Draft Article did find support. Members such as KM Munshi and A K Iyer argued that the UCC was important to uphold the unity of the country and the Constitution’s secular credentials. Dr. B.R Ambedkar was also one of the members who defended UCC but at the same time he was of the view that UCC should not be an obligation and that it should govern only those who want to be governed by it. One member reminded Muslim members that this was not a provision that would affect the Muslim community alone – even the Hindu community had to deal with it. It was further added that women’s rights could never be secured without a UCC. Also, the argument that UCC would violate religious freedom under the Constitution was rejected – the Constitution gave space for social reform legislation. At the end of the debate, it was clarified that there was nothing new about the UCC and there was already a common civil code in India. The only difference with the new UCC was that it would cover marriage and inheritance – which were not under the scope of the existing code. It was also pointed out that the UCC was a Directive Principle, the State was not obliged to bring the provision into effect immediately and there was space for the consent of communities to be obtained.
UCC IN COURTS
The Supreme Court First directed the parliament to form UCC in the year 1985 in the case of Mohammed Ahmed Khan vs Shah Bano Begum, popularly known as Shah Bano case. In this case a poor Muslim woman claimed for maintenance from her husband under Section 125 of Code of Criminal Procedure after she was given triple talaq by him. Supreme Court held that the Muslim woman have a right to get maintenance from her husband under Section 125. The Court also held that Article 44(3) of the Constitution has remained a dead letter. The then Chief Justice of India Y.V Chandrachudobserved. However, after these decisions a lot of protests and agitations were held and the then Rajiv Gandhi Government had to overturn the decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. The explanation given was that no interference should be made to personal laws, unless demand comes from within.
The second instance in which the Supreme Court again directed the government of Article 44 was in the case of Sarla Mudgal v. Union of India. In this case, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam, can solemnise second marriage The Court held that a Hindu marriage solemnised under the Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act, 1955. Conversion to Islam and Marrying again would not, by itself, dissolve the Hindu marriage under the Act. And, thus, a second marriage solemnised after converting to Islam would be an offence under Section 494(5) of the Indian Penal Code.
Justice Kuldip Singh also opined that Article 44 has to be retrieved from the cold storage where it is lying since 1949. The Hon’ble Justice referred to the codification of the Hindu personal law and held, where more than 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens in the territory of India.
The Supreme Court’s again reminded to the government of its Constitutional obligations to enact a UCC came in July 2003,when a Christian priest knocked the doors of the Court challenging the Constitutional validity of Section 118(7) of the Indian Succession Act. The priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the said Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purpose by will. The bench comprising of Chief Justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamananstruck down the Section declaring it to be unconstitutional. Chief Justice Khare stated that “We would like to State 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”. Apart from this too there has been many instances where the court has called out to implement UCC.
THE ROAD AHEAD
UCC has always been a matter of debate and as soon as it comes into arena of discussion the concept of Secularism also accompanies it. Talking of UCC the people against it always argue that it is against the very essence of “secularism” in an ideal state where state should not interfere in the religious matter but then it can’t be neglected that how personal laws have been used to subjugate women and deprive them of their rights. In modern world which talks of equality, India should also be on the forefront and implement UCC