Vaibhavi Dwivedi, in this article weighs the pros and cons of implementing Uniform Civil Code in India.
This article seeks to focus on three main aspects. Firstly, understanding the essence of Uniform Civil Code; Secondly, the discussion in favour of and against the implementation of UCC and lastly, whether this application of a Uniform Civil Code is a dream that India should strive to achieve.
Implementation of Uniform Civil Code in India is one that has been debated over for several years. A Uniform Civil Code essentially means a common set of laws governing personal matters for all citizens of the country, irrespective of religion. Currently, there is a Hindu Marriage Act, a Muslim Personal Law (Shariat) Application Act, 1937, a Christian Marriage Act and a Parsee Marriage and Divorce Act. Hindu Marriage Act applies to any person who is a Hindu, Buddhist, Jain or Sikh by religion. There is also a Special Marriages Act, 1954 under which people can perform marriage irrespective of the religion followed by either person. These laws deal with the matters involving marriage, divorce, inheritance, adoption and maintenance of the respective religions. Having a Uniform Civil Code will mean that all these laws will be replaced by a new law which will be applicable for all irrespective of their religions.
Historically looking at this subject of debate, the inception of Uniform Civil Code can be traced back to the colonial times when the British applied a common criminal code for all but allowed the existence of the religious laws to be applied in the cases of personal matters. Amongst the Hindu population, different laws were allowed to govern in accordance with their caste and region. On the other hand, all Indian Muslims were to be governed under the Shariat law which was passed in the year 1937.
Before the inception of the Indian Constitution, there were several proponents for the application of Uniform Civil Code. One of the major arguments put forth for the application of UCC was that it could become a base on which a national identity could be created, eradicating the ones based on religion and caste. This however was met with a counter argument on safeguarding the minority interests and that enforcement of a UCC would mean the cultural identities of the minority groups getting destroyed. Therefore in an attempt to strike a balance between the two contrasting views, the concept of Uniform Civil Code was placed under the Directive Principles of State Policy which the State would endeavor to achieve but not be bound by.
This debate of UCC took a new turn in the year of 1985 when Shah Bano, a Muslim woman filed a criminal suit in Supreme Court of India in which she won the right of receiving alimony from her divorced husband. However, large masses following the Islamic orthodoxy gravely protested against this decision, perceiving it as an attack against their religious personal laws. This led to the Congress government to pass the Muslim Women (Protection on Rights on Divorce) Act, 1986 nullifying the Supreme Court judgment. Succeeding this however, the court in cases of Daniel Latifi case and Shamima Farooqui versus Shahid Khan case interpreted the act in a manner reassuring the validity of the case, upholding the Shah Bano judgment and nullifying the Act. Many Muslims including the All India Shia Personal Law Board supported and celebrated the Supreme Court judgment and the fact that Muslim women could now claim maintenance after divorce.
The persons in favour of implementation of UCC have time and again spoken about women rights and how they’re severely biased against them in the religious personal laws. Certain examples that elaborate on this view are that in Islam, a husband is allowed to divorce his wife by a simple means of proclaiming Talaq thrice, however a woman has to file a petition in court and go through a comparatively rather long and tedious procedure to get the divorce. This is in addition to the fact that she is required to provide a reason backed up with a proof whereas her male counterpart is not required to do so. Moreover, Islamic laws allow for a Muslim man to marry four times and have four wives legally whereas a woman is only allowed to have one husband. Polygamy is also not allowed in other religious groups, which creates a massive difference and become the reason for cases relating to religious conversions to Islam solely for this reason, quite common.
Thirdly, according to the Hindu Succession Act, a mother has equal rights over the property as the children and the widow in the event of her son’s death. But when a married daughter dies, the mother ranks after the husband’s heirs. These examples give the readers a sense of how the personal laws of various religions do not in fact treat women at par with men in matters involving marriage, divorce and inheritance. Thus, the proponents of UCC argue that there should be a Uniform law which put women at par with men in all the aforementioned matters. It is also argued that implementation of a common code would lead to national integration, making India secular in a true sense and draw minorities into the mainstream society thereby encouraging communal harmony.
However, the task of implementing UCC is not an easy one. There exists a vast variety and diversity of personal laws which are followed with devotion with many followers. So to create a sweeping change in all these personal laws and creating one Uniform Code to govern all citizens in the same manner is an idea too romantic and unrealistic to be achieved. There are several misconceptions existing about UCC as well where it is wrongly misunderstood to mean a blanket imposition of Hindu code and procedures, giving rise to a number of opponents. Also, a generalized set of laws imposed on every individual can also give rise to an identity crisis, especially amongst the minority communities.
Taking into account the arguments from both the opponents and proponents of the Uniform Civil Code debate, it can be concluded that implementing UCC all at once can cause severe communal disharmonious occurrences, doing more damage than fixation of the biased personal laws. The approach to implementing UCC also requires to not be the clichéd way of raising all personal religious laws to the same level and replacing them with one Uniform Codified Law, ignoring all nuances of different religions. Instead, it is a smarter idea to bring about reforms on smaller scales and specifically to those sections in personal laws which do grave injustice to a section of citizens in the country.
The focus should be on removing the obvious and inherent irrationality existing in some of the personal laws and being about reforms in them to suit the modern times. In an attempt to remove all disparities between various religions, these reforms could work as a foundation for Uniform Civil Code at a much later stage. Goa Civil Code works as a model example in this case, where the civil cases of the citizens of Goa are governed by the Goa Family Law. This is irrespective to the religion of a particular person. Thus, the idea of UCC, though not yet feasible, could become so in the long run.