Personal laws have clashed with fundamental rights in various cases over the years and a handful of these instances have made it to court, often reigniting the debate on Uniform Civil Code.
Have you been following the news, then you must have noticed a recent uptick in discussion on bringing the Uniform Civil Code in India? If you have been wondering what this exactly is and why there is such a hype around it, then read along.
India with its rich diversity and a population of 1.4 billion people, is a melting pot of different cultures. While we remain proud of this diversity and ability to co-exist in harmony, especially in terms of religion, the very diversity often leads to conflict while implementing the rule of law. The Constitution of India is the compass for all laws in the country. However, laws governing marriage, inheritance, succession, custody, divorce etc., come under the purview of personal laws. These laws are largely influenced by religious customs in different communities. Personal laws have often come into conflict with the Fundamental Rights enshrined in Part 3 of the Constitution. The Uniform Civil Code has long been proposed as a solution to this continuous dilemma.
The Uniform Civil Code (UCC) is a proposal to codify a single law in the country, applicable to all citizens, governing matters such as marriage, divorce, custody, adoption and inheritance. Instead of the plethora of fragmented personal and customary laws currently existing for different religions and communities, the UCC would be a common set of governing laws, once implemented. The Constitution of India in its Directive Principles of State Policy, Article 44, states that the state endeavours to provide for its citizens, a Uniform Civil Code. Thus, the Union and state governments have had the liberty to take steps to bring forth the UCC. So far, Goa is the only state with a civil code in place. This is because, UCC has been a point of contention from before Indian Independence till date.
DEBATES AROUND UCC
The UCC is not a new concept and similar codes existed in Europe from the 19th century itself. In India however, the British avoided touching the personal codes after the First War of Independence. Post-Independence there were many attempts to implement UCC or an idea of it. The Constitution Assembly especially was a place where UCC was extensively discussed and debated.
B.R. Ambedkar, the father of India’s Constitution, was a fierce proponent of UCC and considered it essential for the modernization of India. He believed that the personal laws were discriminatory in nature towards women and marginalized groups. Without a UCC, he argued, government’s attempts at social reform would be hindered. However, the attempts to bring in a Uniform Civil Code faced resistance from orthodox sections who claimed that it would create communal disharmony. Finally, the UCC was included in directive principles of state policy of the Constitution, making it a suggestion for the state and non-justiciable. The Hindu Code Bill was another opportunity, used by Ambedkar to bring in equality in personal laws, which again was diluted to meet upper caste Hindu demands.
Over the years, debates on UCC have continued with the judiciary being centre-stage to the following questions: Does putting limits on personal laws equal to curtailing freedom of religion? Should freedom of religion overrule the right to equality?
Why do we need a Uniform Civil Code?
The UCC would, in concept, provide equal status to all citizens irrespective of the community they belong. It is not a foreign concept and markers towards this lies within India’s history. Our Constitution provides right to equality for all. India’s cultural traditions and scriptures prescribe many values on equality among men and women. While we move forward towards development, we also must not forget to look back to take lessons from history.
In his latest book, “The Hindutva Paradigm”, Ram Madhav, in the last chapter, “Womanhood in Western and Indic Traditions”, describes that our ancient Vedic scriptures such as Sankhya Darshana, prescribe women and men as complementary. Rituals like Swayamavara, selection of the groom by the women’s choice, ensured that the women of the Vedic age were in control of their social life. The Manusmirti in particular lays down rules where the husband or wife had equal rights. Even now, we follow many Hindu rituals which are not complete without both men and women involved.
However, the present personal laws are largely discriminatory towards women. For example, they do not have equal rights to inheritance or in some cases no right to inheritance. Post-Independence, attempt to protect these rights have been made through piecemeal legislations like the Hindu Succession (Amendment) Act, 2005.
Personal laws have clashed with fundamental rights in various cases over the years and a handful of these instances have made it to court, often reigniting the debate on Uniform Civil Code. Presently, personal laws for each community are wildly different on how issues like marriage, inheritance etc., are treated. This is in contravention with the Article 14 of Constitution, which guarantees equality before law.
The judiciary has highlighted the need for UCC through various judgements, the most pioneering of which was the Shah Bano case of 1985, where the court ruled that the wife was entitled to be paid for maintenance by her husband beyond the period proposed under Muslim personal laws. This ruling however was later diluted through the Muslim Women’s Protection of Rights on Divorce Act in 1986. The Supreme Court at the time however commented that UCC would “help the cause of national integration by removing laws having conflicting ideologies.”
Over the years, several cases have come up in the court due to discriminatory personal laws across religion. A recent win for women’s rights over personal laws was in the Shayara Bano case, which ultimately led to the Supreme court ruling (2017) that the triple talaq is unconstitutional.
Until UCC is enacted, conflict would continually arise since different faiths have different rules. Due to this, progressive measures such as raising of marriageable age of women from 18 to 21 would continually be contested and challenged. With several state governments such as in Uttarakhand, declaring their intention to bring a UCC and a spate of rulings form the Supreme Court and high courts, the debate for UCC is reignited and the time is right to relook at its implementation.
The important questions here would be to look at the protection of each citizen’s dignity, which is an area where personal laws fail. The UCC has potential to strengthen the secular fabric of the country. It should be therefore formed with much thought and respecting all sentiments while keeping the fundamental rights as a compass.
Sammridh Varma is an alumnus of University of California Los Angeles and Cambridge institute of Sustainable leadership. He is communications professional currently associated with India Foundation & Bihar Young Thinkers Forum.