This Article is written by Archana Upadhyay, pursuing B.A. LL.B from Galgotias University.
Most of us believe in the theory of “ONE NATION AND ONE LEGISLATION” but do not stand for it pragmatically. Our former Prime Minister Pandit Jawaharlal Nehru introduced his vision of “ONE NATION AND ONE LEGISLATION” and coded it in the Directive Principles of State Policy. Article 44 of the Indian Constitution has specifically mentioned about Uniform Civil Code which assures a similar set of civil rules and notwithstanding with any exception of religion, race, caste, and sex. Even after 72 years of Independence Uniform Civil Code has not been implemented but has marked its subsistence in various controversies, and judgments. This article will underline the numerous steps taken by the government and the judiciary time to time. It will also divulge some undiscovered facts.
Uniform Civil Code (hereinafter referred to as UCC) was persistently a topic of debate even before independence and marked its commencement in the year 1835 through the 2nd Law Commission Report where the uniformity in the codification of various laws like crimes, shreds of evidence, and contracts were focused. The Report also highlighted that uniformity should not extend to the personal laws of the respective religion but in addition to it, the Britishers signed a proclamation by the name of Queen Victoria’s Proclamation in 1858 through which they promised absolute non-interference in religious matters. But British administrators, as well as the Indian aristocrats, later felt that there is an urgency of bringing up various laws to abolish the practices of gender discrimination which were passed in respect to the Hindus (beneficial to women) such as Hindu Widow Remarriage Act of 1856, Married Women’s Property Act of 1874, Hindu Inheritance (Removal of Disabilities) Act of 1928, and Hindu Women’s Right to Property Act of 1937, etc. Consequently, the growing tide of legislation on personal issues generated debates, controversy and required measured response from the government.
This wrangle led to set up an official Hindu law committee by the name B.N. Rau Committee of 1941 headed by B. N. Rau which was authorised to examine the question of the necessity of common Hindu laws. As a result of which the committee recommended a codified Hindu law, which would give equal rights to women keeping in mind the modern trends of the society. The focus of aforementioned law focus was primarily on reforming the Hindu law following the scriptures. This discussion continued and in the closing stages, the Hindu Code Bill lapsed as a whole. When it was resubmitted in the year 1952 it was passed in separate parts i.e., Hindu Marriage Bill (passed in May 1952), Hindu Succession Act (passed in June 1956), Hindu Minority and Guardianship Bill (passed in August 1956), and Adoptions and Maintenance Bill (passed in December 1956). Before the Hindu Common Code, the government passed a Special Marriage Act, 1954 which provided for marriages for any citizen irrespective of religion.
These were the small steps of the Assembly to check the implementation of UCC. It was decided that if it results to be successful then the common code would be exercised over all the community. This view also supported by G.R. Rajagopal saying that-
“It was felt that an attempt should be made to codify the Hindu law and if this succeeded, and of the measures produced thereby had in themselves intrinsic merits commending them for universal application, the time would not be far off when other communities might like to follow suit and ask for reconsideration of their law in the light of changed situations.”
But the efforts went in vain due to the non-acceptance of the view by any of the citizens for three main reasons.
- Majority viz. Minority
- Gender equality
Legitimacy: The legitimacy of UCC is questioned even today because the state has guaranteed sovereignty to its citizens where they are supreme so that the government cannot act arbitrarily.
Majority viz. Minority: The UCC has always been an exigent law to be implemented where the opposition is not only made by the other religions but even by the people of different caste in a particular religion.
Gender equality: “Failure of the Indian state to provide a uniform civil code, consistent with its democratic secular and socialist declarations, further illustrates the modern state’s accommodation of the traditional interests of a patriarchal society”- Aparna Mahanta
Therefore, there is a need for UCC to give a concrete effect to the right to equality where every citizen will be treated equally in every aspect of law.
NECESSITY OF UNIFORM CIVIL CODE:
The rationale for debate for so many years is that it was only implemented in one state i.e. Goa but one must comprehend the necessity of implementing it over the whole nation. The demand of UCC will result in unifying all the personal laws and all the Indians will come under an umbrella of equality irrespective of the religion. There will be an uniformity in giving justice, the idea of secularism will be promoted, gender discrimination will come to an end.
The one who endorses the UCC always has a point that there is uniformity in the criminal laws and not in personal laws which raises a point of being unequal. Therefore, the necessity of UCC is not only demanded by the government but also the judiciary felt the need of implementing it which was witnessed in the various judgment of the court.
JUDICIAL ERRAND OF UNIFORM CIVIL CODE
After the extended debates on the Equality Code by the Constituent Assembly, the subject-matter of the applicability and the gender justice in regards to the UCC also appeared before the courts. Judiciary has given a new outline as well as played an imperative part in the implementation of the code through its interpretations and judgments.
In the State of Bombay v. Narsu Appa Mali, The Bombay High Court reckoned that the personal laws stand outside the scope of Article 13. However, the Court took Article 44 as a reference to the existing personal laws. Moreover, it favored the Code to abolish bigamy practice for Hindus.
But in 1980, In Shah Bano Begum v. Mohd. Ahmed Khan, a 73-year-old Muslim woman, moved to Court to claim maintenance u/s 125 of The Code of Criminal Procedure against her husband Ahmed Khan, who divorced her by pronouncing triple talaq. The Apex Court observed that Article 44 has remained a dead letter. Chief Justice Y.V. Chandrachud observed that common civil code would assist in achieving national synchronization by expelling the discriminatory loyalties to the law based on conflicting ideologies. Therefore, the Court asked the Parliament to outline the UCC. This judgment has made a sensational legal development in India.
Moving towards the case of Ms. Jordan Deigndeh v. S.S. Chopra, the Court reiterated the same view which was observed in the Shah Bano’s case. It held that this case also brought up the abrupt and unavoidable need for the UCC. The present case facts depict that the lack of UCC would lead to an unsatisfactory state of affairs.
In Mrs. Zohra Khatoon v. Mohd. Ibrahim, the Supreme Court ruled against the judgment of the High Court on the ground of wrong interpretation of the explanation of Section 125(1)(b) of Code of Criminal Procedure 1973. In addition to that, the Court stated that even if the wife has been divorced by her husband or obtained divorce and not remarried, the wife shall continue to be wife.
After a decade, in Sarla Mudgal (Smt.), President, Kalyani, and others v. Union of India and Others, This case highlighted the need for implementing UCC as it will help in the reduction of the disputes based on religious ideologies and will unite the nation in its real sense.
In Lily Thomas etc. v. Union of India and others, The Court observed that the desirability of the Code cannot be doubted. It can be externalized only when the society is built up in accordance and the leaders and instead of maintaining their vote banks, engross themselves in awakening the large masses of people to accept this legal development for the betterment of the society.
In Naveen Kohli v. Neelu Kohli, the Supreme Court while allowing the divorce of a 30-year-old marriage, advocate the Government to amend the Hindu Marriage Act, 1955 making the irretrievable breakdown of the marriage a valid ground for divorce. Further, the Court ordered to forward a copy of the judgment to the Secretary, Ministry of Law and Justice, Dept. Of Legal Affairs and Government of India to take assured measures and to accommodate the demands arose before the court in the present case.
The Judiciary is the central instrument for bringing legal developments which also puts its impact on the codification of the equality code and an attempt to counter the gender justice.
GENDER JUSTICE AND UNIFORM CIVIL CODE
A direful need for women empowerment can be reflected in areas like gender bias, social status, security, and empowerment. Article 44 expects an equality code to secure all citizens of the country irrespective of their communities and religions. Nevertheless, it is not acknowledged by all the religious and political spectrum. While others mark it as undesirable but there exist reasons for the implementation of the Code where gender justice is one of the crucial rationales. The different personal laws are innately patriarchal.
Indeed the judiciary has always observed women empowerment and taken note of the injustice faced by the women in the matters of personal laws. It is consistently involved in bringing uniformity in the personal matters of all the citizens. Personal laws discriminate against women on the grounds of marriage, divorce, inheritance, and others. Therefore, the need arises to get rid of the prejudiced personal laws.
India’s patriarchal society is extremely complex and has a profound connection with the personal laws which cannot be called off. Therefore, a consensus must be made among different communities to enforce the UCC for the advancement on the country. UCC is the solitary answer to expunge gender discrimination and integrate the nation with solidarity and respectability. The Court has observed the desirability of the Code without any disbelief. It is imperative to say under the UCC, one law would govern all divorces for all the religions. Therefore, one should accept the UCC as we encompass One Constitution, Single Citizenship, One Flag, and a Law that applies to all citizens. Article 44 provides the state to secure for its citizens UCC to the whole of India. India is renowned for its cultural diversity. There exist codified personal laws like Hindus, Christians, Parsis, and some laws related to Muslims too. However, no ordinary family law exists in a distinct statute which is universally applicable and acceptable by all the religions.
The need calls for the implementation of the code for the benefit of large. Quoting the words of Dr. B.R. Ambedkar- “The future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary”. Hence, the UCC can be applied in a manner that should not be binding on all but it will be at the discretion of the society.
- State of Bombay v. Narsu Appa Mali, I.R. (39) 1952 Bombay 84.
- Shah Bano Begum v. Mohd. Ahmed Khan, 1985 (2) SCC 556.
- Jordan Deigndeh vs. S.S. Chopra, 1985 AIR 935.
- Zohra Khatoon v. Mohd. Ibrahim, AIR 1981 SC 1243.
- Sarla Mudgal (Smt.), President, Kalyani, and others v. Union of India and Others, (1995) 3 SCC 635.
- Lily Thomas etc. v. Union of India and others, AIR 2000 SC 1650.
- Naveen Kohli v. Neelu Kohli, 2006 (4) SCC 558.
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- Uniform Civil Code: The Importance of an Inclusive and Voluntary Approach. [online] The Hindu Center. Available at: https://www.thehinducentre.com/publications/issue-brief/article29796731.ece
- Chakraborty, A. (2017). Uniform Civil Code & the Indian Judiciary. SSRN Electronic Journal. [online] Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3536262#:~:text=%E2%80%9CInjustice%20anywhere%20is%20a%20threat,Directive%20Principles%20of%20State%20Policy.&text=One%20such%20directive%20principle%20is,enact%20a%20Uniform%20Civil%20Code.
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