UCC VS PERSONAL LAWS

    The Uniform Civil Code (UCC) has been a source of debate for the commoners as well as our politicians, regarding whether or not our nation should adopt a common Civil Code instead of attempting to reform our existing personal laws. Nationalists have traditionally been in favour of implementing a Common Civil Code, however, some of the regional leaders believe that this would be against the basic structure of the Constitution, as it would violate Article 15, 16 and 26 of the Constitution. Several individuals have additionally claimed that the UCC will be the new foundation of Civil law, replacing the existing set of religious laws by merging all the governing aspects of the several religious laws of our nation into a common rulebook, thus ensuring there are no fallacies that the individual laws once had.

    UCC is expected to cover a wide range of Civil laws such as Marriage, Divorce, Inheritance, Adoption and Maintenance (1). As several issues revolve around the concept of Uniform Civil Code, the entire concept will be broken down to smaller fragments. Some of the key topics under discussion are as follows:

    1. Meaning of Uniform Civil Code
    2. Historical perspective of UCC
    3. Need for implementation of UCC
    4. Current issues with Implementing UCC

    Meaning of Uniform Civil Code

    The Uniform Civil code, to explain simply, is a unified version of all the existing civil laws of the nation, superseding all the existing laws and rendering them null and void with effect. Several state and central laws would be superseded about this, some of the codified personal laws relating to marriage, divorce, property, inheritance and adoption are:

    • Christian laws:
      • The Indian Christian Marriage Act of 1872 (applicable to the whole of India except areas of erstwhile Travancore-cochin Manipur and Jammu & Kashmir)
      • Cochin Christian Civil Marriage Act of 1920 (applicable for Travancore-cochin areas)
    • Sikh laws:
      • The Anand Marriage Act 1909
    • Muslim laws:
      • Muslim personal law (Shariat) Application Act, 1937 (making Shariat laws applicable to Indian Muslims)
      • Dissolution of Muslim Marriages Act, 1939
      • Muslim Women (Protection of Rights on Marriage) Act, 2019
    • Parsi Laws:
      • The Parsi Marriage and Divorce Act, 1937
    • Hindu Laws:
      • Hindu Marriage Act, 1955
      • Hindu Adoption and Maintenance Act, 1956
      • Hindu Succession Act, 1956
      • Hindu Minority and Guardianship Act, 1956 (these laws are not only applicable to not merely Hindus, Buddhists and Jains but also to any person who is not a Muslims, Christian, Parsi or Jew, and who is not governed by any other law).
    • Other specific laws:
      • Special Marriage Act, 1954
      • Guardians and Wards Act, 1890 etc.(2)

    Historical Perspective

    The concept of UCC stretches back to the British Raj in 1840, where the concept initially took birth and brief conceptualization. The British, through the Lex Loci report, had framed Uniform laws for crimes, evidence and contract, which led to the rise of the question as to whether the same would happen for the other Civil laws such as Marriage, Divorce, Adoption, Maintenance and Inheritance. However, for some unjustified reason, the British did not execute that decision.(3)

    Later in the freedom struggle period of 1946, during the formation of the constituent assembly, there were two factions of representatives regarding the UCC, one faction for the formation of UCC by Ambedkar and other leaders and opposing the idea for large Muslim majority representatives who preferred the continuance of personal laws.(4) The religious minorities, back then and even to this day feel that the Unification of all the civil laws will cause an imbalance of powers and will undermine the uniqueness of Minorities. Hence, to keep the minorities satisfied, they made the provision of proposing to have a Uniform Civil Code in Article 44 of the Constitution.

    The Supreme Court has time and again expressed its intentions of having a law made by the Legislature regarding the UCC but to no avail.(5) Due to constant political pressure from the Opposition and the masses, the law has not been proposed as of yet. Since the 80s the Supreme Court has been requesting the Governments to implement the UCCs, starting with the Shah Bano case.(6) Here, a 40-year old marriage between a Muslim couple was ended by the pronouncement of Triple Talaq in a very arbitrary manner. Justice YV Chandrachud said that laws cannot have any partiality to them, irrespective of the religion and ethnicity of the religious context the tradition comes from. He stressed on the need for a Common Civil Code, thus paving the way for other judges to comment on the need of UCC. However, the amendment to Muslim Women (Protection of Rights on Divorce) Act, 1986 nullified the impact of the judgement.(7)

    In the case of Sarla Mudgal vs UOI(8), the SC observed that adopting a second religion such as Islam for the sake of marriage is not only unconstitutional but a direct abuse of the existing personal laws in India. Mere conversion of religion would not dissolve an existing Hindu marriage and hence the spouse of Sarla Mudgal was charged with Section 494(5) of IPC.(9)

    Additionally, in the case of John Vallamattom v. Union of India(10), the courts declared Section 118 of the Indian Succession Act as unconstitutional and scrapped it. The Supreme Court further went to say that the UCC will help bolster National Integrity as it will help clear the contradiction between the multiple ideologies in India.

     

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    Need for Implementation of UCC

    From the cases discussed above, there is a growing need for implementation of a common civil code. Quite ironically, the Law Commission of India in its latest report on 2018 report can identify the Lacunae in the law, however, they have admitted that it is highly unlikely that it could ever be implemented in the current socio-political scenario. Despite these recommendations, the current government must consider the following benefits of framing a Uniform Civil Code:

    • Declutter the various religious laws of the nation: Every religion in India has some form of unique laws that applies to them. Hindus have highly codified laws, Muslims have codifications in their laws and so do other religions. Having a well-framed UCC will centralise all the various religious laws, thus making it easier for those who govern the laws and for those governed by the laws.
    • Reduce the burden on the Judiciary: It is a well-noted fact that the Judiciary is overburdened with lakhs of pending cases, some even dating back to the 1940s. One of the proposed solutions to fix this problem is to reduce the number of Civilian laws regarding the 5 main aspects of Marriage, Divorce, Inheritance, Adoption and Maintenance. This is one of the most important reasons for the implementation of a common Civil code as this makes the Judiciary process simple for the Judges, lawyers and the key stakeholders of a case.
    • Provide a common Civil Law for refugees/immigrants/non-religious people: There still exists an ambiguity concerning laws governing refugees, immigrants and people who do not identify themselves with any particular religion. The new framework could then integrate the needs of these people in the laws so that they need not rely on Special laws for the same.
    • Promotes National integration and gender equality: Quite contrary to the opinion of the Moulvis and Ullemas Muslim communities, the UCC could prove to be a key factor in bringing about more National Integration. Having common laws will help in less differentiation of people and unite people together, as the spirit of the nation should be reflective of the laws it follows.(11) Having a single Civil law might help with bringing down the subtle religious division that has existed in India for centuries. Additionally, the UCC will help promote the well-being of women and the LGBTQ community by recognising no differences between them and having a neutral outlook at all their personal laws.(12)
    • Resolve multiple religious issues in one framework: Several religions have certain contradicting laws to Human Rights and other such fallacies within them. The UCC can help negate them, thus ensuring that the laws are not only neutral to all communities but can help achieve clarity, simplicity and intelligibility in personal laws.(13)

    Current Issues with Implementing UCC:

    • Violative of Constitutional Provisions: Although the founders of the Constitution put Article 44 on purpose in the Constitution, many jurists and thinkers believe that implementing a Common Civil Code for all citizens may not be possible as it would violate some of the fundamental rights, particularly Article 25 and 29 of the Constitution. As for Article 25 goes, it grants the right to practise a religion of one’s choice, however, it does proclaim any right to propagate any archaic personal laws. Additionally, Article 29 talks about the Right to conserve its language, script and culture but it does not guarantee that the state will take any and all measures to promote any culture that is antiquated personal laws that are in dire need of reframing.(14)
    • Lack of Political consensus: This issue can be provided as an excuse for every socio-political issue but the fact remains that most Political parties have such distinguished, untethered ideologies that make it difficult for any legal document to have their entire consensus. In fact, most political parties cannot support the idea of UCC because they are duty-bound to cater to the interests of their vote banks.
    • Lack of Socio-Legal Awareness: One of the main reasons why the Political parties are unable to affect actual change in the laws of our nation is because their vote bank encourages them to have a very subjective perspective. Educating the people of the nation is a must concerning UCC as the people need to understand the actual purpose for a Uniform Civil Code. In fact, several communities are often misinformed about the proposed laws which tend to be counterproductive to the initiative of having the UCC.
    • Belief of Immutability of Laws: Most people associate the laws of the nation with God. Although there is nothing wrong with that by itself, it has often been the case for much chaos and confusion concerning religious notions and the existing laws of our nation. To quote a simple example, although the concept of Sati has been prevalently practised in several Hindu texts, it is a clear Human rights violation. In fact, the Britishers had to use extreme force to ensure that the people stick to this amendment in the law. Similarly, it is most likely that it will be a strenuous process of implementing and executing the law.
    • Pushback from minority communities: A common misconception among the minorities has always been that the UCC would potentially supersede their religion itself and make their religious existence void. While this is far from the truth, several minority communities do not think accordingly. As mentioned in this article earlier, the Moulvis and Ullemas Muslim communities have been a strong voice against the implementation, believing that progressiveness of any personal law, let alone UCC, should not be carried out.(15) 

    Conclusion

    Despite all the resistance and disdain for the need for UCC, a common civil code must be established and consolidated in our nation. Not only will it show the progressive nature of our laws and legal prowess, but it will significantly reduce pressure on the judiciary concerning interpretations of Civil law-related aspects.

    There was once a time in India where the criminal laws were not unified but were existing in various religions in various forms. What if the Hindu Laws of punishment needed some strengthening and they drew inspiration from the inspired forms of punishment from Garudapurana? Hence the question that would arise is how could a superpower like India remain fixated on its separate religious laws for its well-being. Thus, it is essential that the unification of common civil laws of this nation shall be with the consensus and unified understanding of all the needs of various religions.

    REFERENCES

      1. UCC vs Personal Laws: Is it really necessary? , Pathlegal India, Available at: https://www.pathlegal.in/Uniform-Civil-Code-VS-Personal-Laws.Is-UCC-Really-Necessary–blog-2382515 (last visited on 15th December 2020)
      2. Riya Puniyani, “Uniform Civil Code and Conflicts of Personal Laws” SSRN Publications 2020
      3. Id at 1
      4. Ibid
      5. Why India needs a Uniform Civil Code, The Statesman, Available at: https://www.thestatesman.com/supplements/law/india-needs-uniform-civil-code-1502922940.html (last visited on 17th December 2020)
      6. Mohammad Ahmed Khan v. Shah Bano Begum, AIR 1985 SC (3) 844
      7. Id at 1
      8. AIR 1995 SC 1531
      9. Id at 1
      10.  Writ Petition #242 of 1997
      11.  Harshita Vatsayan, “India’s Quest for a  Secular Identity and Feasibility of a Uniform Civil Code” ILI Law Review Summer Issue Vol. I 2017.
      12.  Ibid
      13.  Ibid
      14.  Ibid
      15.  Ibid

     


    BY VISHAL ADITYA K | SCHOOL OF LAW, CHRIST (DEEMED TO BE) UNIVERSITY

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