Uniform Civil Code: Issues and Challenges

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433) VOLUME I ISSUE III (AUGUST 2020) Email – [email protected] Website – www.ijlra.com 56565656565651 www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 DISCLAIMER No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of IJLRA. Though every effort has been made to ensure that the information in Volume I Issue III is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal. Copyright © International Journal for Legal Research & Analysis 1 www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 EDITORIAL TEAM EDITORS Ms. Ezhiloviya S.P. Nalsar Passout Ms. Priya Singh West Bengal National University of Juridical Science Mr. Ritesh Kumar Nalsar Passout Mrs. Pooja Kothari Practicing Advocate Dr. Shweta Dhand Assistant Professor 2 www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 A WORD FROM THE TEAM IJLRA :( ISSN: 2582-6433) is proud to complete its Volume I Issue III. The current issue consists of articles, short notes, case comments, legislative comments and book reviews, contributed by advocates, academicians, researchers & students from all parts of the country. Each contribution has been thoroughly examined by our editorial team to provide a filtered and quality read. The fact that law as a subject is dynamic and ever evolving makes it imperative for lawyers, academicians, researchers, and students to stay abreast of recent developments. The same thought process has led us to develop a dedication towards providing all the contributors with a platform to express their original ideas on contemporary issues. With the same endeavour to present view on latest legal developments within and outside country we are successful in presenting diverse selection of stimulating articles. We strive hard to stick to the core of the Journal's principles, which includes diversity and open discussion from all aspects of law while maintaining highest standards of professional integrity. The Issue is a culmination of the efforts of several people who must be rightly acknowledged. We would like to place on record our sincere gratitude to all our contributors for their valuable work. We would also like to thank all the members of Editorial Board for their efforts in shortlisting and editing the papers to ensure that the ideas of authors are being expressed in the best possible manner; and finally the members of our technical support team for making this issue reach all our readers by way of an open access system. We sincerely hope that the present issue will come to the expectations of its readers. Team IJLR 3|P a ge www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 UNIFORM CIVIL CODE: ISSUES AND CHALLENGES Dr.Faizanur Rahman1 Mohammad Haroon2 Introduction India is a land of diversity, where everybody is free to profess, propagate and practice of faith and religion of his own choice. Every religious sect has its code of conduct in the form of personal laws that applies commonly among the followers. Secular character and the neutrality of the state in the matter of religion is the peculiarity of this land. The creation and imposition of a Uniform Civil Code are closely related to the one and half-century-old movement for the creation of a Uniform Civil Code that has been debated and discussed in public and political discourses. The Supreme Court of India has also shown its interest in the imposition of the Uniform Civil Code in the country. Once again the debate is on its peak when the BJP led government has shown its interest in its imposition. The government may probably table the draft of the Code in the Parliament shortly. Once passed, it would mandate implementing a common set of laws for all Indian citizens irrespective of their faith and religion. Millions of citizens particularly minorities are reluctant in its imposition and say it will affect their freedom of religion and the nation will move towards a theocratic state led by Hindutva. Historical background The report of the first Law Commission set up by the British government in 1840, where the very same issue of a Uniform Civil Code for all people was examined, is apt and relevant here. Harington J. then advised the Commission, had argued against a more general application of British laws to the inhabitants of the country, stating that they could not be applied here, as they ought to be “suitable to the genius of the people and all the circumstances in which they may be placed. Can a uniform law be suitable to the genius of the people of this country who pride themselves on their variety and diversity and who may not brook any interference in what is essentially their personal and religious matter? In the colonial times, women’s organisations increasingly protested against the gender discrimination and this led to a spate of laws passed for the Hindus which were beneficial to women, such as the Hindu Widow Remarriage Act of 1856, Married Women’s Property Act, 1923 and the Hindu 1 2 Assistant Professor, Faculty of Law, JamiaMilliaIslamia, New Delhi Research Scholar, Faculty of Law, JamiaMilliaIslamia, New Delhi 4|P a ge www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 Inheritance (Removal of Disabilities) Act, 1928, which is a significant move, permitted a Hindu woman's right to property. Also, the Hindu Women's Right to Property Act, 1937 was a significant step for assuring rights to women. The growing tide of legislation that delved into personal issues of ordinary men and women of the country generated debate and controversy and required a reasoned and measured response from the government of the day. This finally led to the setting up of the BN Rau Committee whose task was to examine the question of the necessity of common Hindu laws. Rau was an Indian civil servant, jurist, diplomat and statesman known for his key role in drafting the Constitution of India. Under his chairmanship, the committee recommended the constitution of a uniform civil code, which would give equal rights to women in keeping with the modern trends of society. However, it must be mentioned that its focus was primarily on reforming the Hindu law following the scriptures. The committee reviewed the Hindu Women's Right to Property Act, 1937 and recommended a civil code of marriage and succession. The Committee was reconstituted once more in 1944 and finally sent its report to the Indian Parliament in 1947. In the Constituent Assembly debate, Dr. B.R. Ambedkar had famously said this in his passionate speech, “No one need be apprehensive that if the State has the power, the State will immediately proceed to execute…that power in a manner may be found to be objectionable by the Muslims or by the Christians or by any other community. I think it would be a mad government if it did so.” The father of the Indian Constitution made this reference after a consensus on putting a Uniform Civil Code (UCC) in place proved elusive. It was a universally governing structure that he envisioned as secular family law, one that was not constrained by any religious law or community custom. He had desired a UCC that would replace religious personal laws regarding marriage, inheritance, adoption, succession and all other rights within the family that flow from religion or tradition. Finally, he had to settle for a mention in the directive principles in Article 44 of the Constitution, which said: “The State shall endeavour to secure for citizens a Uniform Civil Code”. After independence, parliament, in two sessions during 1948-1951 and 1951-1954, had intensive debates on these issues and thoroughly discussed the report of the Rau committee. The first Prime Minister, Jawaharlal Nehru, as well as his supporters and women members, wanted a Uniform Civil Code to be implemented. International law and the Uniform Civil Code Under International law, a state that ratified an international instrument becomes legally bound to implement its provisions. Accordingly, India has ratified the International Covenant on Civil and Political Rights (ICCPR), 1966and International Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), 1979, is bound to enforce the relevant provisions and ensure gender equality under national laws. However, women in India continue to suffer 5|P a ge www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 discrimination and inequalities in social political and economic spheres. Prevalence of discrimination against women under various personal laws of different communities in India was openly accepted by India in its periodic report of 2000 before the UN Committee on the Elimination of Discrimination Against Women when it admitted, the personal laws of major religious communities had traditionally governed marital and family relations, with the Government maintaining a policy of non-interference in such laws in the absence of a demand for change from individual religious communities. So as a step towards a gender just code, the personal laws of various communities in India need a closer look and reform, not only in compliance with the Indian Constitution but also as per the provisions of the international laws. The Judiciary over the debate on the Uniform Civil Code It became a matter of debate after the Supreme Court’s verdict in case of Mohd. Ahmad Khan vs. Shah Bano Begum3. The case was about the women’s right to maintenance after divorce. According to Muslim Personal Law, the husband was not obliged to pay the maintenance after the Iddat period followed after divorce. This was challenged and the Court ordered that a husband has to provide maintenance for a divorced wife with no means of income even after Iddat period. The uniform civil code became a flashpoint in Indian politics when the Supreme Court talked about uniform personal laws. The judgment created uproar among the Muslim community. The discrimination against women is founding other personal laws also. For instance, the Hindu Succession Act favors men in the issue of property rights. The issue of Uniform Civil Code has been in the limelight since 1995 when the Supreme Court in the landmark judgment of SarlaMudgalv. Union of India4 stressed on the need for the Uniform Civil Code in matters of marriage, inheritance, succession, etc. In the opinion of the court, the fundamental rights relating to the religion of members of any community would not be affected thereby. The Supreme Court observed that permissibility of bigamy under Muslim Personal Law is inconsistent with the laws governing other communities in India and opposed to public morals and therefore should be supplemented by a Uniform Civil Code. Similar sentiments were expressed by the Supreme Court again in 2003 when while passing its verdict in the case of John Vallamattomvs. Union of India5 directed scraping of section 118 of the Indian Succession Act 1925 applicable only to Christians. It can, therefore, be concluded that Uniform Civil Code is meant to constitute a legal framework of secular laws which shall govern activities like 3 1985 SCR (3) 844 AIR 1995 SC 1531 5 AIR 2003 SC 2902 4 6|P a ge www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 marriages, inheritance and divorce which are presently controlled by personal laws of various religions. Public opinions in favour and against the Uniform Civil Code The proponents of the uniform personal laws expose the greatest benefit that would result from the Uniform Civil Code is a more egalitarian society where every single individual would be guided by the same laws relating to personal issues. To be sure, religious laws or community customs are not always the most rational, just and equitable. This applies to ‘Hindu’ traditions too, which are probably as numerous as there are dialects in the country. Hindus too are governed by community-specific laws, which are still in evolution. For instance, it was only in 2005 that Hindu women were granted the rights to the family property, and the right to marital property in case of a divorce is still denied to them. Not all practices are codified, for example, the Bhils have an annual ‘Bhagora’ festival where a boy can elope with a girl and they are recognised thereafter as a couple, and both the Baigas of the Narmada region and the Santhals further east recognise polygamy. Bigamy and polygamy are widely attested to be more prevalent among Hindus anyway. But the way the idea of a Uniform Code is presented to Indians is mostly within the frame of ‘Secularism’, in other words as if it is only to do with ‘minority appeasement’. ‘Secularism’ here would both connote the pure sense of laws being defined outside of religion, and the special Indian sense of the state allowing all religions to exist and carry on their customs unhindered. Not too many people, in ordinary times, think about civil codes, but it is a subject that affects everyone. How a constitutional republic orients itself to the issue also affects everyone, right down to the last citizen. India’s Constitution is a layered document this is the problem. What it mandates in one section say, as a desirable idea in the directive principles, it puts constraints on elsewhere, for instance in Article 25, which guarantees the freedom to follow any religion or tradition. There are other constraints, the Naga accord protects Naga customs, and they do not recognise divorce. Christian Nagas follow both customs and when it comes to the courts, Christian-specific laws. The Catholics prefer to say ‘dissolution of marriage’ rather than recognise divorce as a right. Reform-minded thinkers, therefore, have a serious dichotomy to traverse here. Another reason is obvious, the ‘Secularism’ frame, naturally, brings in politics. The one active voice standing for a Uniform Civil Code has been the Bhartiya Janta Party. It has been one of their three key planks, besides Article 370 and Ram Mandir. It has always remained in cold storage due to its inherently controversial nature, but now, with a decisive move on Article 370 under their belt and with the Ayodhya verdict by the Supreme Court, everyone is asking, will the UCC be next by the BJP led central government? 7|P a ge www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 The BJP has also managed to nuance its narrative over the years, adding the idea of gender equity to its primary one of a unitary law. Gender rights came to the fore because of the way the Congress mishandled the Shah Bano case in the 1980s the founding act that became emblematic of its ‘appeasement politics’. But a Uniform Civil Code will not just be about Muslims, as it is commonly perceived to be. Every community will be affected including Hindus, who are a collage of communities that have no relation to each other. The matriliny among the Nairs of Kerala or the Bunts of Karnataka is closer to the Khasi customs of Meghalaya than it is to the north Indian idea of a daughter as a ‘ParayaDhan’(Asset of others). India’s constitutional ethos also protects plurality. Its objective is not to produce homogeneity. Uniformly distributed rights are desirable. But no one will say the ‘Hindu Undivided Family’, with the rather patriarchal notion of a ‘Karta’ (the oldest male as its head, as codified at present), presents any equitable ideal. This is what roils the waters when it comes to whispers in the air that the UCC may be the next big item on the agenda for the Modi led government. It is not a single-point thing like annulling Article 370, too many legal issues, affecting every Indian, are entailed in this. The BJP’s ideological parent, the RSS, would not mind upping the ante, though. “It needs to be done anyway. Why not now?” says RSS ideologue Seshadri Chari. Unlike the Ayodhya case, which was adopted as a pet theme only in the 1980s, the demand for UCC goes a long way back, to the Jan Sangh days and its opposition to Nehru’s Hindu Code Bill (which was, to be fair, only incrementally reformist). But is there a serious move towards it? The Delhi High Court is considering a PIL that seeks a direction to the Centre to convene a judicial commission or a high-level expert committee to draft a UCC. The petitioner, a BJP leader, has demanded a draft UCC in the next three months. Such a draft, of a uniform family law applicable to all Indians, will be no easy task. But the government has to produce some sort of a blueprint and initiate public debate before taking the plunge, contends Prof. Faizan Mustafa, vice-chancellor of NALSAR University of Law, Hyderabad. “Article 44 of the Constitution says ‘the State shall endeavour’, it does not say ‘enact’. So where are the endeavors so far, did we constitute any committee of experts or prepare any draft? Has the draft been debated anywhere or are we just going to do it the way the reorganization bill of Jammu and Kashmir was passed?” he asks. Several questions are there, will a UCC take positive features from each personal law, will it be an egalitarian law and provide freedom of religion to all, or will it have a majoritarian shade? BJP MP and lawyer MeenakshiLekhi feels that if people can follow uniform criminal laws, then they should adapt to comprehensive family laws too. Lekhi, who has been a part of many law commission 8|P a ge www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 consultations on the subject, presents the UCC as a step towards ensuring gender justice. But even she says, “I have not seen a draft yet. There have been repeated consultations in the law commission. But all governments have shied away from drafting one. A good civil code would be gender-just too, but women’s groups have a nuanced and skeptical view of the BJP’s moves in that direction. Feminist scholar Ritu Menon says they stand for a gender just civil code since all personal laws are discriminatory. “We have had many deliberations on this and proposed an optional civil code too. We have put forward suggestions on marriage, divorce and all aspects of family laws. If women want to be governed by the personal law of the particular religion, the choice should be theirs,” says Menon. Many of the thinkers say there will be political repercussions to a UCC. Congress Rajya Sabha MP Husain Dalwai says the government will antagonize many sections of the public with such a step. “Some Hindu leaders say our laws should be nurtured by Manusmrithi. They want to start a Manusmrithi course in UP. Personal laws of each community are different; it is not only about Muslims, but also about Parsis, Christians and others.” History is rife with examples of how even some tall leaders in Congress protested fiercely, along with the Jan Sangh when reforms were introduced in Hindu personal laws in the 1950s. The showdown between Nehru and Rajendra Prasad made headlines. The first Lok Sabha passed the Hindu Code Bills in 1955-56, in the form of four separate acts, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act. The resentment of the Hindu right-wing, for the ‘exception’ that was made for the Muslim community, goes back to that even though the new Hindu laws too were rather modest when seen in a reformist, gender equity light. The UCC became an angry slogan at that point, but legal experts point out that a uniform law will conflict even with the codified Hindu laws, as women are still struggling to get their rights under that legislation. Feminist lawyer Flavia Agnes points out gaps in Hindu laws and asks why unjust provisions exist after more than six decades of codification. She asks, “Will the BJP’s UCC alter the definition of Hindu Undivided Family (HUF), which provides tax exemptions to Hindus in inheritance as compared to other communities who follow Indian Succession Act?” Those registered as HUF get several tax exemptions under various sections. “There are many discriminatory practices in the Hindu Succession Act and Marriage Act. Will the BJP scrap all that if a UCC is enacted? Statistics show bigamy is more prevalent among Hindus. Women in a polygamous relationship are not protected by law and the men getaway. Will a UCC address all these issues?” asks Agnes. It took an amendment in the Hindu Succession Act in 2005 to get daughters an equal share in the family property. It was in 2005 that agricultural land also came under the purview of the Hindu Succession Act. There are 9|P a ge www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 millions of people affected by all these. Agnes’s NGO Majlis Law has been campaigning against a monochromatic idea of the UCC for many years. She feels that if the government follows some of the constructive suggestions put forward by the 21stLaw Commission, it can at least show its commitment towards a gender just Uniform Civil Code. So what did the law commission, mandated to deliberate upon matters related to legal reform, say about a UCC? Well, its last statement on the subject, in 2018, was “UCC is neither desirable nor feasible at this stage. It prepared a ‘consultation paper’ after collating suggestions from various communities and the general public on the feasibility of UCC. Former law commission chief, Justice B.S. Chauhan, who steered that effort, calls it a working paper and not a ‘report’, though it is given as such on its website. The government should start working on reforms of family laws across communities, he says. “Over 66,000 people responded to our questionnaire. We felt whatever best practices are available should be extended to other communities,” Chauhan tells, adding that it is going to be a long process and the government should proceed carefully. Bringing in a unified law for tribal will be legally difficult. “How will you take away legislative powers from local bodies in the Northeast? Polygamy is a rule among the tribes in Jharkhand and Odisha. First, we need to remove disparities and educate people.” Prof. FaizanMustafa too feels existing gaps in the realm of personal laws must be addressed in a community-specific way first. “A committee of experts is needed to look at all these questions first. They should create a uniform law for one community, and then try to create a code based on good provisions of different personal laws,” he says. For instance, in the Hindu Succession Act, a son and daughter get an equal share in the property, which is an improvement on Muslim law that gives the daughter only half the share. However, the Hindu law allows a father to will his entire share in favour of his son, leaving nothing for the daughter. The Muslim law restricts a man from making a will of more than one-third of his property and he cannot make a will in favour of his male heir. Legal experts point to India’s unique history of personal laws and common laws existing side by side and argue for rights and gender-just laws as enshrined in laws such as the Dowry Prohibition Act, 1961, section 125 of the Cr.P.C. and the PWDVA, 2005 to be distributed across the board. Kirti Singh, women’s rights lawyer and a specialist in family law, says urgently needed reforms include a law ensuring the right to marital property, and legislation to stop honour killings. “We need a law to give the woman half the share of marital property after marriage. Now, if the woman is deserted, she is only entitled to maintenance. That’s also not ensured in most cases,” says Singh. A lot of that has to do with Hindu communities. Opinions of the Minorities over the UCC 10 | P a g e www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 The Parsi Conundrum: If India adopts a UCC, the tiny community of Parsis will bear the brunt more than any others, say its leaders. The Parsis have a special set of rules for intestate deaths under Sections 50-56 of the Indian Succession Act, 1925. They also follow the Parsi Marriage and Divorce Act, 1936, and Parsi Chief Matrimonial Courts are established as special courts. “Our divorces are heard in the high court in the presence of a jury,” says Mumbai-based advocate Homiar Vakil. Parsis cannot legally adopt children and if a woman marries outside the community, she is rendered an outcast. It is a small community worried about its identity. Says Vakil: “If they go for a UCC, minority interests would not be protected. It is against the Constitution, we do not want reforms in our laws.” The Sikh Question The Sikh religion was ‘acknowledged’ legally during British rule; an Anand Marriage Act was passed in 1909. But post-Independence, the Constitution made the community a party to the Hindu Marriage Act, which became a bone of contention. Community leaders wanted their legal framework, formally identified with Sikhism by name. It was only in 2012 that an amendment was passed in Parliament allowing state governments to frame rules for registration of marriages under the Anand Marriage Act. But a look at the customs prevalent in it will suffice to problematize the idea of a UCC. Levirate marriage is kosher in Sikhism: the brother of a deceased man is obliged to marry his brother’s widow (a practice it shares with the wider Jat community). Some people still believe it. How do you bring that under the ambit of a law? Would it be legal or illegal? And who decides? Another example is the adoption of children by siblings in case they don’t have kids. How would you have laws for it? Manish Tiwari, Congress MP from Punjab, says he has frequently expressed his opposition to a UCC. We must not forget the fact that India is a diverse country, he says, adding that the BJP’s ally SAD should also clear its stand on the topic. Says Dr Manjit Singh Nijjar, professor of law at Punjabi University, Patiala: “The irritant for Sikhs in the present personal laws is the terminology. The Sikh personal laws fall under the ambit of the Hindu Marriage Act etc., although its definition mentions that it covers Jain, Sikh and Buddhist religions too. If that name is replaced by, say, Indian Marriage Act, it will not change anything for Sikhs. It would only resolve two major issues. One, a uniform law identified with the nation, and not a religion, would give inclusivity to all religions, getting rid of the objectionable name. They would have their own identities. Secondly, it will bring uniformity.” The Christian Position 11 | P a g e www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 When it comes to the Church, it’s again an interesting plurality of views that presents itself. To begin with, it’s not one Church. Addressing a press gathering on July 3, 2016, Cardinal George Alencherry, head of the influential Syro-Malabar Catholic Church in Kerala, waded into the heated national debate over the UCC. He remarks, “Perhaps surprising to some including an expression of hope that the UCC would be useful for strengthening the unity of the country and its people”. It was widely reported as an endorsement of the very idea itself. The optics was perfect for sensationalist headlines. In the vein of ‘Christians are pro-UCC, unlike Muslims’. Of course, what got downplayed was Cardinal Alencherry’s stated wish for dialogue and consensus-building. Perhaps mindful of the media and social media firestorm in the wake of that story, Cardinal Baselios Cleemis, head of the Syro-Malankara Catholic Church, came out with a statement a few days later that the unity and plurality of India were sacrosanct. He noted that “all discussions on the UCC must be done taking into account the freedom ensured by the Constitution and without hurting the sentiments of various religious groups”. Both statements, according to Kerala Catholic Bishops Council spokesperson Father Varghese Vallikkatt, were in keeping with the consensus reached after “leadership-level” deliberations held that month by the KCBC. It’s a cautious, but essential caveat that Fr Vallikkatt offers. “If the UCC is implemented, we’ll welcome it as a matter of principle…you can’t oppose something given in the Constitution. We consider the Constitution as a holy book. You can’t uphold the Constitution and at the same time oppose something in it. At the same time, since the UCC affects everyone, all communities, it needs to be taken up in a spirit of consensus. No community should feel they are targets or that something is being imposed on them. It can cause apprehensions among minority communities. With any legislation that affects religious practices and community traditions, the state should exercise all due restraint and act with an enlightened understanding,” he says. He cites Sabarimala as an example. So does Metropolitan Kuriakose Mor Theophilose, a spokesperson for the Jacobite Syrian Christian Church, pointing to it as proof of how emotive legislation and judgments on faith-based practices can be. “We understand how people can be affected when faith is wounded. We understand the pain of the Hindu faithful who were hurt. There needs to be clarity on how a UCC will affect personal laws, which are closely related to faith and religious practices. Marriage for us is a sacrament, whereas it is a contract in some other faiths. That diversity must be preserved,” he adds. The Jacobite Church had appointed a committee of clergymen and lay legal experts earlier this year to study the implications of the UCC. It called for balancing the “integrity and unity” of the country with “the need to preserve the cultural and religious diversity and fundamental freedoms”. He adds: “A UCC should not be the reflection of a religious or political 12 | P a g e www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 agenda and should not lead to a totalitarian climate.” The apprehensions were stated, equally subtly, after conclave between the Catholic Bishops Conference of India (CBCI) of which the KCBC is a state-level representative and the National Council of Churches in India (NCCI) in November 2016, following the 21st Law Commission’s (October 2016) appeal for responses. A joint letter to Justice Chauhan both emphasized the primacy of the Constitution and the protection afforded by the Freedom of Religion, rejecting the questionnaire included in the commission’s appeal as not “reflective of the sentiment” of inclusivity and fairness. And a March 2017 consultation by the National United Christian Forum (NUCF) called the notion of a UCC “antithetical to the very concept of India”. It included a significant call-to-action though: a recommendation to the churches to “introspect how the rights of women, young people and vulnerable communities can be protected within the Church”. That spoke to “the disparity experienced by certain sections of the Christian community”. Its recommendations to the government, however, took a cautious line: “Gender equality and reform in personal laws is a separate matter and must be dealt with due consultation with the concerned religious communities.” Introspection and change from within would be the best solution, says Fr Vallikkatt. “We have a strong stand about the equality and empowerment of women, as indeed the equality of all human beings. There may have been backwardness in some cases, but at least from the Mary Roy case onwards, we haven’t seen any specific questions concerning the equality of women. Where there is a need for reform, it would be for the best if there is an opportunity for the community to sit together and find a solution. The government should promote that sort of dialogue,” he says. Mary Roy, writer Arundhati Roy’s mother, fought a landmark case that brought a measure of gender equity to Christian inheritance laws. The lack of that is what is often cited about the Muslim community, and rightly. Sabarimala only made it clear how patriarchal customs are rather too universal. Advocate Sebastian Champappilly, whose writings on Christian personal laws are oft-referenced, calls for “a gradualist approach”. He says the emphasis should be on social justice, not uniformity. “And gender justice is more a constitutional mandate under Article 14 than under Article 44,” he adds, referring to the laws for equality and the Directive Principles, which are a kind of a wish-list (which includes, inter alia, a wish for prohibition). A “more secular law in tune with the times and accord with the constitutional mandate” is what he wants to see. Most fair-minded Indians would concur. Also, this caveat: “Codification does not necessarily mean unification. It can and should take in and hold the diversity in matters of religion and region.” Diverse needs have to be balanced here, and good, thoughtful dialogue involving everyone is the only thing that can manage it. “Time will have its impact in the evolution of a Uniform Civil Code as envisaged in the Constitution,” he said. And the 13 | P a g e www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 only introspection makes for good dialogue, on all sides. Muslims’ anxiety The passage of the Muslim Women (Protection of Rights on Marriage) Act, 2019 which criminalize triple talaq addressed an area where the Muslim had steadfastly refused any move to reform. Kamal Farooqi member of the All India Muslim Personal Law Board (AIMPLB) has warned that there will be repercussions if efforts are made to tamper with other personal laws. Muslim personal laws derive from the Sharia. The community’s practices fall under the Sharia Act, 1937, the Dissolution of Muslim Marriage Act, 1939, and the Muslim Women Act, 1986. The colonial British regime had in its canny, differential treatment in the pre-partition years chosen to leave Muslim laws untouched. A secular and free India trying to ease the fears of a vast population of Indian Muslims stricken by Mohammed Jinnah’s prognosis, that India would be a ‘Hindu’ country, had continued that hands-off policy. The right to live according to specific religious laws is a cornerstone of the Indian system, therefore. That is one of the things that get disturbed with a UCC. “We will take preparatory action when the time comes. We have codified laws defined by the Holy Quran. We do not want any change in our laws. Let them change if they want but at their peril”. Will the Goa model work? Goa is often heralded as a model state, the only one which has a Uniform Civil Code, so it’s interesting to look at its experience. Muslims, Hindus and Christians in the state are bound by the same family laws which retained the 1867 Portuguese civil code even after its merger with India in 1961. But Goa-based lawyer-activist Albertina Almeida says it doesn’t automatically ensure equality. “Uniformity in law does not necessarily mean there is no discrimination. We have some provisions that are uniform in discrimination. The management of the property is the privilege of the male spouse in Goa and it is uniformly applicable to all communities,” says Almeida. Conclusion Remarks India’s constitutional ethos protects plurality. The right to live according to one’s religious laws has been the Indian system’s cornerstone, especially for minorities. Gender justice is more a constitutional mandate under Article 14 than under Article 44. The government must exercise over gender justice in the spheres of life. There is no guarantee of gender justice through the exercise of Uniform Civil Code. Uniformity in law does not necessarily mean there is no discrimination. Therefore, efforts should be focused on harmony in plurality than blanket uniformity for flourishing Indian democracy. 14 | P a g e www.ijlra.com Volume I Issue III|August 2020 ISSN: 2582-6433 In India since the colonial period, the government is maintaining a policy of non-interference in personal laws. All the religious communities have their laws as codified in consonance with their religious texts. These personal laws need a closer look and reforms, not only in compliance with the Indian Constitution but also as per the provisions of the international laws rather replace them with the Uniform Civil Code. The Uniform Civil Code may harm the pluralistic and secular character of the country. The emphasis should on social and gender justice and necessary modifications in all personal laws rather than uniformity of personal laws. The Government must protect the plurality and heterogeneity of Indian society. The focus must be on the Common Civil Codes applicable for only particular sects instead of a Uniform Civil Code. 15 | P a g e