The debate for a Uniform Civil Code dates back to the colonial period in India. The Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification. In 1951 India’s first Law Minister Dr. B.R. Ambedkar fought to get our parliament to pass the Hindu Code Bill, a bill he had drafted with great love and care which would have granted equal rights to Hindu women, denied to them by tradition and religious practice. Had this bill been passed in time, the logical next step would have been to draft a similar bill for Muslims and thus pave the way to work towards a Uniform Civil Code.
The Uniform Civil Code is one of the premier agenda that should find a place in law as it is not only combining various laws together but it is a step towards an India which is secular in every term. The need for a Uniform Civil Code has been felt for more than a century. India requires a uniform code and I believe that it has struggled a lot in the absence of it. The society has been fragmented in the name of religion, caste, tribes and classes. It is high time that India has a uniform law dealing with marriage, divorce, succession, inheritance and maintenance.
The scenario in India is completely complex. India has a long history of personal laws and it cannot be given up easily, unless a broad consensus is drawn among different communities. All Indians now have a common criminal and civil law, the IPC and CPC, which are uniformly applicable. ‘Personal’ law for the communities, however, differs, one common denominator being the generally discriminatory gender adverse treatment of women. Why should the norms for divorce, be different for a Hindu compared to a Christian? Is this matter of personal law or religion? In the Shah Bano case, a callous Central government, clearly with electoral considerations in mind, short-changed the maintenance rights of divorced Muslim women, overturning a sensible and humane Supreme Court verdict. Why should a divorced Muslim woman not have equal maintenance rights under the law as those from other communities? Why should there be separate ‘laws’ for Catholic or protestant Christians in respect of marriage, divorce or inheritance? Issues such as birth control, abortion, adoption regulations are emotive, to be handled with delicacy and understanding, but ought to be non-discriminatory between castes and communities. If a person changes his religion, should his personal laws also change? One may surmise that in other multi-ethnic, multi-community societies, no discrimination is to be made based on caste, community or religion, which is the premise of our secular Constitution. The various personal laws are basically a loop hole to be exploited by those who have the power. Our panchayats continue to give judgments that are against our Constitution and we are unable to do anything about it. By allowing personal laws we have constituted an alternate judicial system that still operates on thousands of years old values.
People today think Uniform Civil Code supersedes the right of citizens to be governed under different personal laws based on their religion or ethnicity. Right to worship or to religion is not to be confused with personal issues relating to inheritance, marriage etc., which are secular in nature. Indeed, the thrust of any change should not emerge from the religious or political perspectives. The mainspring really has improved the position of women in society, as well as emergence of a common national identity. For too long, we have looked at ourselves through the prism of caste, community or religion; surely we cannot continue to think of ourselves this way for the next 100 years.
Uniform Civil Code should derive from the Constitutional rights accorded to every citizen and not from any religious or traditional custom. So for example if the Constitution says that all citizens are equal in the eyes of the law, then all their rights regarding marriage, divorce, inheritance etc. should be equal and uniform. So firstly the two partners in a marriage should have the same rights.
As the community matures, its personal laws can be amended to become more progressive. The change must be from within the community as we are currently following a very old act which does not keep pace with the current standards of gender equality.
A citizen should have the right to come under the umbrella of a non-religious law that derives only from the Constitutional rights guaranteed to every citizen. This could be optional or it could be an umbrella law. The demand for a Uniform Civil Code essentially means unifying all these “personal laws” to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde. A Uniform Civil Code will help in integrating India more than it has ever been since the Independence. A lot of the animosity is caused by preferential treatment by the law of certain religious communities and this can be avoided by a Uniform Civil Code. The Uniform Civil Code is the sign of a modern progressive nation. It is a sign that the nation has moved away from caste and religious politics. While our economic growth has been the highest in the world our social growth has not happened at all. In fact it might be right to say that socially and culturally we have degraded to a point where we are neither modern nor traditional. A Uniform Civil Code will help the society move forward and take India towards its goal of becoming a developed nation.
About the Author
Archi Roy is a second year student pursuing her B.B.A. LL.B. degree from University of Petroleum and Energy Studies, Dehradun. Her areas of interest are Constitutional and Family Law. Research work has always been her field of special interest. Presently, she is interning with the Model Governance Foundation.