Uniform Civil Code

Name : Sangeet Khurana Division : C PRN : 15010125267 Family Law First Internal Assessment – Uniform Civil Code INTRODUCTION – Uniform Civil Code was a concept brought about by the constituent assembly of India responsible for drafting the Indian Constitution. It finds it’s place in the Constitution in Article 44 and is a Direct Principle of State Policy. The Uniform Civil Code states that people in India will be adjudicated upon by a common Indian Personal Code that would be uniform for people of different religions, race, creed etc. It is a well-known fact that at the time of independence in 1947, India was a segregated society with people from all walks of life existing in a country which promised diversity to be its biggest strength. But what was being hauled as the biggest strength of the country also posed it’s biggest problem. With people from different walks of life, came people from different religions. The Indian society was an amalgamation of Hindus, Muslims, Sikhs, Christians and so many others, but with them came a need for people to be subjected to their religious laws, the ones that had dictated their life even before Independence. These ancient documents, to be read in consonance with the Constitution were adapted with several religion specific laws at the central level to bring the wide populaces of the country under the umbrella of a Union Law. However, some of these religious inter personal laws have failed the test of time, sometimes being grossly sexist, racist or sometimes both, basically being laws that hold no relevance in the modern society, one that believes in the inception of natural rights vested in every global citizen. Uniform Civil Code, some political analysts say that might remain a myth as even after many committees have given their suggestions and appointed committees to delve into the aspect, the fact of the matter being that our country is in no way in a better position to implement UCC than it was 70 years ago. The Uniform Civil Code, as shall be explained in further detail in this research paper will be Utopian laws, one that won’t last the stranglehold vote bank politics have in Indian elections these days. Parties, by appeasing certain religious sects, by supporting draconian interpersonal laws in exchange for votes has really left Indian in an awkward position. In one scenario, India can be seen as a fine country with its essence being democracy, rule of law and equal protection of law. However, to think that two people in this same country can be adjudicated under different laws even when they commit the same crime creates a sort of disparity in the populaces that no democratic structure will ever heal. There is a strong need for some Uniformity in the Indian Judicial System, and while some parts of religious law still continue to be relevant today, most of them have become redundant and matters like divorce, succession, inheritance cause complex problems especially for females in gaining equal rights in the family. Hence, I sincerely believe that while it may be troublesome in the beginning, the Uniform Civil Code should be taken with a pinch of salt and not while forgetting the basic essence of the egalitarian principles enshrined in the constitution. Only a harmonious blend between the two could ensue fair and free trials in India, ones that are not determined by the caste or the religion of the person. STATEMENT OF PROBLEM – The Uniform Civil Code, even though it sounds convenient and lucidly written on paper, could be possibly India’s biggest task as of yet. Prevalence of discrimination against women under various personal laws of different communities in India was openly accepted by India in its periodic report before the United Nations Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) when it admitted, “ The personal laws of the major religious communities had traditionally governed marital and family relations, with the Government maintaining a policy of noninterference in such laws in the absence of a demand for change from individual religious communities. “India has been submitting periodic compliance reports vis a vis the implementation of the CEDAW, to this committee. This committee expects India’s compliance to the provisions of the said international instrument and „noted‟ that “steps have not been taken to reform the personal laws of the different religious and ethnic groups, in consultation with them, so as to conform to the Convention,” and warned that “the Government’s policy of non-intervention perpetuates sexual stereotypes, son preference and discrimination against women.” The backbone of the problem with the Uniform Civil Code is the presence of gross gender inequalities and also, the obvious problem of whether it would be feasible to be implemented on a country as diverse as India. While there is no issue about the stance taken about the first question, every citizen enjoying equal rights under the domain of India, the masses are split when it comes to the discussion of the second one. The courts have although repeatedly said that religion should be kept aside from secular family practices like succession, maintenance, divorce etc. There is no need for us to be living in a modern society with fundamental rights and still following age old principles where under a religion as prominent as Islam, a woman can be divorced just by the mere pronunciation of the word talaq thrice by the spouse. His inebriation or her absence also do not play a role in this grossly sexist practice, where there were many cases in India where some women were kicked to the curb and had to face severe economic abuse because of this draconian practice. There have many landmark cases which have underlined the need for a unified Indian code, one which unifies everyone in an equal and free and fair manner, it is the need of the hour, going forward. At the same point in time, it is also to be noted that many of the customs and practices entailed by the religious acts which are to be read with the constitution like (Hindu Marriage Act 1955, Special Marriage Act, Christian Marriage Act etc) still dictate the majority of religious rituals and perhaps some of their laws and nomenclature still continue to be relevant today. According to the Committee on the Status of Women in India A Report of Committee on the Status of the Women in India, 1975 “ The continuance of various personal laws which accept discrimination between men and women violate the fundamental rights and the Preamble to the Constitution which promises to secure to all citizens equality of status, and is against the spirit of natural integration” The Committee recommended expeditious implementation of the constitutional directive in Art 44 by adopting a Uniform Civil Code. ANALYSIS - The Uniform Civil Code was first discussed by the Supreme Court in the case of Mohamed Ahmed Khan v Shah Bano (1985) SCR (3) 844 in 1985 where a muslim woman upon being divorced by her husband arbitrarily (talaq ul biddat) approached the court for the feasibility of her maintenance suit. The decision by the Supreme Court was considered to be the first proper intervention into Muslim law and said that all women must be given fair maintenance and alimony for the custody of children and running of household etc. under Section 125 of the Criminal Procedure Code. However, this went down to be one of the cases where the Parliament nullified the SC order by releasing a Muslim Women Maintenance Act which preserved the status quo of the Muslim Personal Law hence restricting the woman’s right to maintenance. The incumbent Rajiv Gandhi Government said that the Supreme Court can only guide and suggest the Parliament reforms, they are to only be implemented when the need comes from within. This also ratified the belief that Indian Parliaments also place vote banks and religion over the greater good of people. This also was a factor in a chain of events that followed the Gujrat Riots in 2002. In Mary Roy v. State of Kerala (1986) SCR (1) 371, the question argued before the Supreme Court was that certain provisions of the Travancore Christian Succession Act, 1916, were unconstitutional under Art. 14 Under these provisions, on the death of an intestate, his widow was entitled to have only a life interest terminable at her death or remarriage and his daughter. It was also argued that after the inception of the Indian Succession Act superseded the Travancore Christian Succession Act and the Court held this view holding the female’s tyranny in matters of succession grossly disregards the very purpose of the Right to Equality. This was some sort of glimmering hope for a day to come where gender equity could have been amalgamated with religious principles and customs. REVIEW OF LITERATURE - There is hardly any other democratic country which holds the same democratic position as India does which implements all these religious laws inclusive of all the grave inequalities along with the bigger umbrella of principles like democracy, secularism and equality. In countries like USA and Europe in its entirety, use a common civil code which ensures a homogenous decision making system causing less disparity between people who are living in the same country but are distinguished by their state, ethnicity and family background etc. It also makes the family processes way more dignified and in consonance with modern day equity principles. There is however a need for a Unified Code for Personal Law of Indians which would govern all Indian Citizens upon secular matters in a free and fair manner. Communalism and the act of bifurcating the society into various factions and sects, not only makes the society stand divided on gender inequalities but also creates a disparity between people who commit the same offence. Communalism first works against the interests of women where many restrictions, often unreasonable are placed on women from a specific religion and draconian principles inculcated which have to be reduced for the need of a truly fair and free system in India. In Sarla Mudgal v Union of India AIR (1995) SC 1531, The Supreme Court opined that: “Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two- nation or three nation theory and that in the Indian Republic there was to be only one nation- and no community could claim to remain a separate entity on the basis of religion”. The constitution bench which constituted of Justice AN Khare said that “It was the responsibility of the court to guide the government in making gender equal laws not only in the phraseology, but also in the implementation. It is therefore, imperative that India implements the Uniform Civil Code to prevent disparities’ Sarla Mudgal’s case is considered one of the landmarks in Indian Judiciary with it also being called SC’s formal appeal for the UCC to the parliament through the prime minister. In S.R. Bommai v. Union of India (1994) 2 SCR 644 , as per Justice Jeevan Reddy, it was held that “Religion is the matter of individual faith and cannot be mixed with secular activities, Secular activities can be regulated by the State by enacting a law’ Article 25 and 26 ensure appropriate freedom of religion, Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion and spread religion. Be that as it may, this privilege is liable public order, morality and health and alternate provisions of Part iii the Constitution, Article 25 likewise enables the State to direct or confine any monetary, money related, political or other mainstream action, which might be related with religious practice and furthermore to accommodate social welfare and changes. The protection of Articles 25 and 26 is not restricted to matters of tenet of conviction. It stretches out to acts done in compatibility of religion and, accordingly, contains an assurance for custom and perceptions, functions and methods of love, which are the basic parts of religion. The Freedom of Religion enshrined in the Third Schedule of the Indian Constitution. The State cannot profess, propound or propagate any religion under Article 25 of the Constitution. The Indian Constitution expressly stands for gender equality. For example, Article 44 of the Constitution envisages a Uniform Civil Code for all citizens and lays down that, “The State shall endeavor to secure for the citizen a Uniform Civil Code through out the territory of India.” OBJECTIVES – The objective of this research paper is to explore the feasibility of Universal Civil Code, while understanding the limitations of it. Another objective is to bring to light the gender inequalities and proving that by no means can such grossly sexist laws exist in modern society and how secular family practices have to be separated from the ambit of family laws. RESEARCH QUESTIONS – The research questions for this paper would be IF UNIFORM CIVIL CODE CAN BE APPLICABLE IN A COUNTRY WHICH IS DIVERSE LIKE INDIA WHEATHER SOME FACETS OF RELIGIOUS LAW STILL REMAIN RELAVANT IN THE ABJUDICATION OF INDIAN SUBJECTS IN COURTS OF LAW CHAPTALIZATION – Chaptalization of the research paper under this paper would be as follows – Uniform Civil Code should definitely be invoked in a country like India because there is a need to for true equality as enshrined in the Indian Constitution. It is about time Indians realize that they are not governed by the laws of the religion but primarily to the laws of the constitution. Religious laws have been added to the constitution in pursuance of fear of communal tensions and a religious or linguistic partisan. We need to realize that this is the step that shall pave the way for many others. India has to rise above the social dogmas and a strong move like implementation of the UCC would only pave way for many other inequalities that many Indians still have to be deal with. A Uniform Civil Code would allow homogenous judgements and would in turn might relieve the judiciary of considerable load. It was a need expressed by BR Ambedkar, the very founder of the Indian Constitution – “Sir, I am afraid I cannot accept the amendments which have been moved to this article. In dealing with this matter, I do not propose to touch on the merits of the question as to whether this country should have a Civil Code or it should not. That is a matter which I think has been dealt with sufficiently for the occasion by my friend, Mr. Munshi, as well as by Shri Alladi Krishnaswami Ayyar. When the amendments to certain fundamental rights are moved, it would be possible for me to make a full statement on this subject, and I therefore do not propose to deal with it here. My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession.” Some aspects of family law still remain to be relevant like marriage rituals, cremations etc but it is safe to say that most of family law has paled into redundancy with the supremacy of the constitution and the fundamental principles entailed by it. In Swapna Ghosh v Sadananda Ghosh AIR 1989 Cal. 1, the courts held Section 10 and 17 of the Indian Divorce Act unconstitutional. However, these two sections finally got scraped only in 1995. The Kerala High Court in Ammini EJ v Union of India AIR 1995 Ker. 252 and the Bombay High Court in Pragati Verghese v Cyrill George Verghese AIR 1997 Bom 349 struck down Section 10 of the Indian Divorce Act as being violative of gender equality. In September 2001, a poor Muslim woman came to courts to seek changes in divorce law for gender equality and polygamy to be made illegal. She also spoke about the unilateral nature of divorces in Islam and claimed that they should be able to be imposed by each spouse. She also fought for including irretrievable break down of marriage in marriage as a defense for seeking divorce. Nilanjana Bhaduri Shah “Does India Really Need UCC” TOI visited on 3/4/2010 FOOTNOTES/ENDNOTES – Uniform Civil Code remains a myth as of now. It has been included in the incumber government’s manifesto but till now no steps have been taken in the furtherance of the same. One has to keep in mind the inter religious differences that still exist in India and why this may get partial disapproval. However, one can imagine the convenience that would be caused by the implementation of this article at a more ripe time than this where every Indian will be brought under the ambit of one Inter Personal Code and one will be able to profess, propogate and promulgate any religion or choose to not have a religion. The freedom of choice is just as important a fundamental right as Right to Religion even though it does not find proper recognition as a Fundamental Right. Uniform Civil Code hence should be implemented keeping in mind the greater good of people and also henceforth finally truly applying the principle of equality that should have from the very beginning, have been the cornerstone of this democracy. REFERENCES – Subba Rao on Family Law Nilanjana Bharati for TOI The Constituent Assembly Debate Volume VII Sarkar and Sarkar, 2008 Ambedkar and the Uniform Civil Code