The term ‘civil code’ is used to cover the entire body of laws that govern rights relating to property. Not only property, personal matters like marriage, divorce, maintenance, adoption and inheritance are also covered under it. We find different laws for different communities in India that govern these aspects. Hence, inheritance or divorce laws among Hindus would be different from those among Muslims, Christians and other religions.
Most of the family law in India is determined by what religion the parties belong to. Hindus, Sikhs, Jains and Buddhists come under the umbrella of Hindu law, whereas others like Muslims and Christians have their own personal laws. The laws of these communities, except the Muslims, are codified by an act of parliament. India being the largest democracy in the world encompasses a complicated history which has made reconciliation of certain problems in its secular legal system, a difficult task. Still, there is a demand for a uniform civil code (hereinafter called UCC).
Through UCC the same set of secular civil laws are administered to govern different people belonging to different religions and regions. However, this will supersede the right given to the citizens to follow different personal laws based on their religion or ethnicity. The Constitution of India has laid down the administration of a UCC for its citizens as a Directive Principle, however, it has not been implemented till now. The reason for non-implementation of the secular UCC is the opposition by Muslim, Christians and parties like Indian National Congress and Communist Party of India. UCC brings a contradiction to these parties’ commitment to secularism. Those parties that are in favour of a secular UCC are the Bharatiya Janata Party , the Rashtriya Swayamsevak Sangh and the Vishwa Hindu Parishad. These parties are also referred to as ‘Communalists’. Thus, in India, this situation exists regarding UCC.
UCC has led to a lot of debate and some monumental court cases and legislation in the last fifty years of Indian history. The Constitution of India, contains a series of contradictions that have made it difficult for the government of India to reform Muslim Personal Law. The framers of the Constitution were in favour of protecting the Muslim Personal Law. They feared that any dismantling with it will lead to civil war, riots at a large scale, or even disintegration of India. This feeling of disintegration was further accelerated by the dissolution of the princely states. Thus, from such an atmosphere we find Indian Constitution and its views on minority rights.
There is a basic contradiction. On one hand, the Constitution gives recognition to the continuance of Personal Law, while on the other hand, there exist several Articles in the Constitution, such as Article 14, which guarantee equal rights. It fails to understand that the personal laws for various groups are inherently unequal. For instance, a divorcee in Muslim law is entitled to different rights than in Hindu law, therefore through Article 14 it would appear that personal law is unconstitutional. Furthermore, Article 14 also demands no discrimination that is based on sex, whereas Muslim Personal Law favours the male in many cases. This is observed especially in the cases of divorce and polygamy. In India, the law on polygamy is ruthlessly loose since it does not require the male counterpart to prove that he can maintain more than one wife. Thus, ‘equality before the law’ would then imply that Muslim women could take up to four husbands. These issues were not resolved in the Constitution.
The Supreme Court of India in 1995 was asked to review four cases where in each case, Justice Kuldip Singh touched on the importance of UCC for India twenty times. He was clearly in favour of UCC. A common civil code would help the cause of national integration by the way of removing the contradictions based on ideologies. Dr. Ambedkar, the ‘father of the Indian Constitution’ spoke about Article 44. He was clear that the state could, by way of its power, legislate over the Personal Law. The UCC is said to be called as ‘Hindu nationalist conspiracy’ that would be used to suppress the minority Muslim community. Hence, today, the Muslim community rejects the reform stubbornly so that their privileged position is not simply done away with. UCC is termed as the last avenue of attack where doing away with Personal Laws like Muslim Personal Law is not possible since it appears to be inflexible.
Proponents of the Uniform Civil Code argue that the UCC brings in gender equality. Also, the UCC gives women more rights. Hence, UCC is a kind of debate that warrants replacement of the personal laws of major religions in the country with a common set that would govern every citizen in the country. UCC became one of the most controversial issue in contemporary politics during the Shah Bano case in 1985. The debate then was mostly focused on the Muslim Personal Law. The demand for a UCC came forward by women activists in the beginning of the twentieth century. It was for the sole objective of women’s rights, equality and secularism. Though a demand for a UCC was made by Prime Minister Jawaharlal Nehru, however due to opposition, he and his supporters and women activists, had to finally compromise of the reform to be added to the Directive Principles.
About the Author
Garima Singh is pursuing her B.A. LL.B. (Hons.) degree from National Law School of India University, Bangalore and is currently in her third year. She is a research fellow under the Ministry of Housing and Urban Poverty Alleviation (HUPA), Chair on Urban Poor and the Law, Karnataka. She has worked with several NGOs on human rights and child rights issues and has written essays and articles particularly dealing with these issues. Her work has been acknowledged and she has received awards for them too. She likes reading books and loves to paint and sing. Currently, she is interning with the Model Governance Foundation.