Uniform Civil Code
Uniform Civil Code is a systemic solution against discrimination by enforcing reforms within the Hindu, Muslim, Christian and Parsi communities. Rather we can say that it’s a secular step
The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope.” This is an excerpt from a recent Delhi High Court judgment, wherein the judiciary has once again conveyed the need of having a Uniform Civil Code (UCC) in our country. Consequently, the debate and deliberations on the need for the uniform governance of personal laws has been brought back to the table.
Before moving ahead let us understand what personal laws are. The people of India belong to different religions and faiths. They are governed by different sets of laws in respect to matters relating to family affairs, i.e., marriage, divorce, adoption and succession. We inherited this system of having different sets of personal laws for different communities from the British colonial rule, as our lawmakers at the time of Independence preferred not to interfere with religious issues. But by providing a provision for UCC in our Constitution, the constituent assembly clearly manifested its vision about uniform India.
The Directive Principles of State Policies (DPSP) in the Indian Constitution under Article 44 states that “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” Pursuant to this provision, the task of enforcing a UCC in the country was dropped in the bucket of the legislature by the Constitution makers. Being a DPSP, Article 44 is not enforceable in courts alike the fundamental rights.
Rather it awaits the action of the Parliament to make a law for establishing a common civil code for all. The aim of the Constitution makers was to gradually and consensually move towards a common civil code for all citizens in future.
However, the political unwillingness and incapacity to call spade a spade has lingered on this issue for very long. The Supreme Court and various High Courts in catena of matters have counseled the governments to enforce a UCC for more than four decades. The Shah Bano case (1985) dealing with maintenance to divorced Muslim women, thereafter the Jordan Diengdeh case (1985) examining the Christian Succession Act, the Sarla Mudgal case (1995) against deceitful Islamic conversion for polygamy, and the John Vallamattom case (2013) on succession rights to the recent Delhi High Court judgment, are amongst the multiple instances when the courts have strongly urged the need of having uniform civil code for the country.
In 2016, the Law Commission of India also issued a questionnaire, inviting public opinion on the need for UCC and codification of personal laws in India. The 17 questions in the survey touched upon various personal laws provisions perceived as discriminatory and unjust. Let us look at some of these significant issues from the questionnaire.
● Contemplating the age of marriage, question no. 10 puts forth whether there should be a uniform age for consent of marriage. We know that the age for valid marriage for girls is 18 years and boys is 21 years, but this is not uniform across the citizenry. Under Muslim law, marriages of children under 16 years of age is allowed with permission of Sharia authorities.
Another issue was raised regarding the unreasonable separation period in the Christian Divorce Act. For mutual divorce among Christians, a two-year waiting period is compulsory before the divorce which is unjust and harassing. This two year period is a very long time for a person to survive alone. Though the Supreme Court for a particular case reduced this period to one year in some circumstances but by the legislation this separation period is still two years.
● opinion on whether codification of personal laws will ensure gender equality? The answer is yes, because a codified law in the form of UCC will be enacted by the legislature. Therefore, it will be under the purview of judicial review and cannot be arbitrary or discriminatory against anyone under Articles 14 and 15.
It will also enable the legislature to reform them as per needs of time. For example, since the Hindu Succession Act is codified, the Parliament by an amendment in 2005 granted the equal coparcenary rights to daughters as that of a son in father’s property.
Furthermore, it has been asked if UCC should be optional or mandatorily applicable on all. Drawing lessons from past experiences, UCC should be applicable to all the citizens without choice. If given the option, very few people have the tendency to be voluntarily governed by such laws. For example, maintenance rights under Code of Criminal Procedure (CrPC) is optional for
Muslim couples under the Muslim Women (Protection of Rights on Divorce) Act, 1986. However, very few couples by affidavit register themselves to be governed by Section 125 of CrPC