Uniform Civil Code

MAR 30

Mains   > Constitution   >   Indian Constitution   >   Legislations

WHY IN NEWS:

  • A petition was filed in Supreme Court against framing a uniform civil law, as it take away the fundamental right of people to practice their religion.

WHAT IS UCC?

  • A Uniform Civil Code seeks to provide one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
  • A Uniform Civil Code seeks not only to ensure uniformity of laws between communities, but also uniformity of laws within communities ensuring equalities between the rights of men and women

CURRENT STATUS:

  • Presently, in India, different communities are governed by different Personal laws like Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Adoption and Maintenance Act 1956 etc.
  • Similarly, Muslims, Parsis and Christians are governed by their own personal laws.
  • Even within a religion, there is not a single common personal law governing all its members.
  • For example: for registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K and is optional in Bengal, Bihar
  • Article 44 of the Directive Principles of State Policy lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India

NEED FOR A UNIFORM CIVIL CODE:

  • Different personal laws promote communalism and it leads to discrimination:
    • Different laws based on religion will lead to isolation of one community from another >> this prevents social intermingling of different religious groups
  • To ensure gender parity:
    • Religious personal laws are misogynistic in nature
    • For example as per the Hindu Adoption and Maintenance Act 1956 >> Hindu married woman had no right to adopt a child on her own
    • Under Shariat Act, 1937 >> women’s share of inheritance is half of male’s counterparts
  • Sign of a modern progressive nation:
    • While our economic growth has been significant, our social growth has lagged behind.
    • A Uniform Civil Code will help the society move away from caste and religious politics and embrace progressive ideals and modernity
  • Needed for national integration:
    • Uniform Civil Code will separate religion from social relations and personal laws, ensuring equality and thus harmony in the society.
    • In Shah Bano Begum case of 1985, Supreme Court observed that, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies”
  • To protect the rights of citizens:
    • Many provisions of personal laws are in violation of human rights.

CHALLENGES

  • Fear among minorities:
    • In the name of uniformity, the minorities fears that the culture of the majority is being imposed over them.
    • Given vast cultural diversity in India, bringing uniformity among all such people will be a huge challenge.
  • Patriarchal mindset
    • Patriarchal mindset of Indian society poses a big challenge in implementation of UCC.
    • This can be reflected by the fact that, the Hindu code bill has been already in place from mid-1950s, yet the quantum of land actually inherited by Hindu women is only a fraction of the land they are entitled.
  • Plurality and diversity:
    • It has been argued that UCC threatens a pluralistic society like India, where people have confidence in their respective religious beliefs
    • In 2018, Law Commission of India opined that the Uniform Civil Code is “neither necessary nor desirable at this stage” in the country.
    • The Commission said secularism cannot be contradictory to plurality.
    • It only ensures peaceful co-existence of cultural differences.
  • May violate the concept of Indian secularism:
    • The Supreme Court in T.M.A Pai Foundation case reiterated that the essence of secularism in India is recognition and preservation of the different types of people
    • The idea of UCC might not be inconsonance with the spirit of Indian secularism
    • It may violate the fundamental right to practice religion enshrined in Article 25 of the Constitution.
  • Issue of drafting the UCC:
    • One of the biggest obstacles in implementing the UCC, apart from obtaining a consensus, is the drafting.
    • There is no guideline or a vision document, whether UCC be a blend of all the personal laws or a new and common law adhering to the constitutional mandate.
  • Lack of political will:
    • Due to sensitivity of the issue and vote banks politics

MERITS OF UNIFORM CIVIL CODE

  • Simplification of laws:
    • There exists so many personal laws like Hindu code bill, Shariat law, etc.
    • Presence of so many laws creates confusion, complexity and inconsistencies in the adjudication of personal matters, at times leading to delayed justice or no justice.
    • UCC will eliminate this overlapping of laws.
  • Reduction in number of litigation:
    • UCC will lead to reduction in litigation emanating from multiple personal laws.
  • Establishing a secular society:
    • UCC will de-link law from religion which is a very desirable objective to achieve in a secular and socialist pattern of society.
    • Moreover, it fulfill constitutional mandates under Article 44 of Directive Principles of State Policy.
  • Gender justice:
    • Uniform Civil Code will provide women with the right to equality and justice in courts of law- irrespective of their religion in matters pertaining to marriage, divorce, maintenance, custody of children, inheritance rights etc.
  • Freedom of choice:
    • A religion neutral personal law would encourage protection of people who does not want to be governed under any of the religious based laws

WAY FORWARD:

  • Adopt a piecemeal approach:
    • The social transformation from diverse civil code to uniformity shall be gradual and cannot happen in a day.
    • Therefore, the government must adopt a piecemeal approach.
    • Government could bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages.
  • Law commission recommendation:
    • In its consultation paper in 2018, the Law Commission chose codification of personal laws over the UCC as a way to end discrimination within religions.
    • Codification of various practices and customs would make them ‘law’ under Article 13 of the Constitution.
    • Any ‘law’ that comes under Article 13 should be consistent with the fundamental rights
  • Balancing the right to belief and right to equality:
    • The UCC must carve a balance between the protection of fundamental rights and religious dogmas of individuals.
    • It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious and political considerations.
  • Bottom-up approach:
    • The matter being sensitive in nature it is always better if the initiative comes from the religious groups concerned >> this requires awareness generation

BEST PRACTICE:

  • Goa has a common civil code called Portuguese civil code 1867:
    • Under this Code, a Muslim man whose marriage is registered in the State cannot practice polygamy, a married couple share property equally, assets are divided equally between the man and woman on divorce etc.

PRACTICE QUESTION

Q. “Uniform Civil Code is desirable but for the moment should remain voluntary”. Critically analyze.