Vijaya Singh Gautam explains the UCC, along with commenting upon the legislature’s reservation in framing a legislation towards its implementation, due to a communal outcry that maybe caused. The author also comments upon the question of the possible extent of state intervention in the cultural matters, even when India remains a secular country.
“A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”
– Mohammad Ahmed Khan v. Shah Bano Begum
The issue of Uniform Civil Code (Hereinafter “UCC”) is in forefront as the national campaign by various communities is being observed. It has gained impetus recently after the Law Commission of India asked for public response via method of posing questionnaire. Many Muslim organizations consider this move by the Commission as an endeavor to enforce a uniform personal law on the community.
The simple three words and the nation disrupts into feverish elation and agitated howling. These three words are sufficient to split the nation into two groupings – politically, socially and religiously. Post-Independence India’s modernist drive to obligate a uniform civil code, notably written into Article 44 of the Indian Constitution of 1950 as a non-justiciable Directive Principle of State Policy (DPSP), alarms not just an Indian problem but a worldwide dilemma for lawyers and legal systems.
The backbone of polemic turning around UCC has remained secularism and the freedom of religion reckoned in the Constitution of India. The Constitution of India in its preamble mentions India as “secular democratic republic” .This emphasizes that India favors no particular religion. That, India does not discriminate one religion form another religion. It means that faith should not hinder with the ordinary being of an individual.
The issues raised for considerations from time and again have been “what is the connection between Communities personal laws and General State enacted laws? To what extent does state can interfere with the personal law of communities? The key schema being enforcing legal homogeneity containing other hidden agendas or simply “religion v. law” or “culture v. law”.
The object of UCC is to foster national integration via method of eradicating inconsistencies based thoughts. Article 44 of the Indian Constitution under Part III requires – ‘The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India’. Nevertheless, post 60+ years of our independence; our legislatures are hitherto giving effect to this provision of law.
“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.”
– Sarla Mudgal v Union of India
No set of law can violate the rights laid down in Article 25 and 26 of Indian Constitution, which essentially safeguards the religious freedoms of different strata’s of Indian Society. Our is the nation of various religions and faiths. The question being how can India have uniform personal law which safeguards religious freedoms at the simultaneous time? To avoid conflict based on religious belief, we need uniformity in terms of law. The enactment of UCC will not hamper fundamental freedom unless it goes against the essence (Fundamental belief) of particular religion.
The Parliament of India has shown little interest in legislating upon laws which directly affect personal laws due to the fear of them being labelled as controversial, sensitive and backlash attractors. Right to claim maintenance post iddat period was given affirming nod by the Supreme Court in Shah Bano case. It attracted agitation from the Muslim community leading to enactment of The Muslim (Protection of Rights in Divorce) Act. The Adoption of Children Bill by the Maharashtra legislature is still awaiting assent of President.
The Apex Court has time and again rejected accepting Public Interest litigation on UCC but also had recommended timely legislation for its implementation. It turned UCC enactment as matter for legislature (Maharishi Avadhesh v. U.O.I) and exhibited averseness to impede in personal law (Ahmedabad Women Action Group v. U.O.I). But, in Sarla Mudgal Case, the Apex Court directed government to look again on Article 44 implementation with a view to protect minority and oppressed section of the society. In Daniel Latifi case, the relation and contrast between secular constitution and concept of welfare state was reexamined.
The Goa Civil Code, based on Portuguese Civil Code is applicable to all religions alike. It does not discriminates on the basis of caste, creed or sex. A single set of Family law is applicable to all. It sometimes shows that UCC can effectively be enacted and implemented in India, all it needs is a political will.
The implementation of UCC seems like a distant dream, between the Apex Court’s mixed reactions and Parliaments wariness. Only the Public opinion can enlighten the need for UCC. The blocks to the implementation of UCC being vote-bank politics, staunch fundamentalism and religious divide which can only be rescinded by the time and tolerance. But, a UCC is necessary in our democratic society. it should not only be restricted to issue of Muslim Triple Talaq, but rather be seen as matter of bringing uniformity in the civil laws.