Uniform Civil Code has been a subject of debate since the inception of our Constitution. This article aims to provide a legal analysis of the issue.
Addressing BJP booth workers in Madhya Pradesh, Prime Minister Narendra Modi strongly backed the Uniform Civil Code (UCC) on Tuesday, hinting that the government may prioritise the long-pending subject ahead of the 2024 Lok Sabha elections. This comes after the 22nd Law Commission recently agreed to re-examine the subject and started soliciting opinions and recommendations on UCC from the public and acknowledged religious bodies.
What is Uniform Civil Code?
A Uniform Civil Code is conceptualised as a set of laws that govern personal matters, including marriage, divorce, adoption, inheritance, and succession, for all citizens regardless of their religion. It aims to replace the existing diverse personal laws that vary based on religious affiliations.
An example of a difference in personal laws in India
The rights of women regarding inheritance differ based on their religion in India. Under the Hindu Succession Act of 1956, (which governs the rights of Hindus, Buddhists, Jains, and Sikhs) Hindu women have equal rights to inherit property from their parents and have the same entitlement as Hindu men. The rights of married and unmarried daughters are equal, and women are recognised as joint legal heirs for ancestral property partition.
Muslim women, governed by the Muslim Personal Law, are entitled to a share of their husband’s property, which is either 1/8th or 1/4th, depending on the presence of children. However, daughters’ share is half of that of sons.
For Christians, Parsis, and Jews, the Indian Succession Act of 1925 applies. Christian women receive a predetermined share based on the presence of children or other relatives. Parsi widows receive an equal share as their children, with half of the child’s share going to the deceased’s parents if they are alive.
Provisions of Uniform Civil Code in the Indian Constitution
Article 44 of the Constitution, one of the Directive Principles of State Policy, states that the State must seek to ensure for people a uniform civil code across India’s territory. However, as Article 37 states, directive principles are guiding principles for government policies and are not enforceable by courts.
Arguments in support of UCC
I) Dr Babasaheb Ambedkar, chairman of the Drafting Committee of the Indian Constitution, was of the view that a UCC is desirable but following significant division in the constituent assembly he proposed it to remain voluntary for the moment.
“It is perfectly possible that 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 […] so that the fear which my friends have expressed here will be altogether nullified,” Ambedkar said in Constituent Assembly.
Thus later the constituent assembly agreed on putting the clause as a directive principle rather than a fundamental right.
II) Over the following years, various interventions by the legislature, judiciary, and civil society organisations have aimed to amend personal laws or establish a uniform civil code. Notable judgments contributing to this discourse include Mohd. Ahmed Khan v. Shah Bano Begum, Jordan Diengdeh v. S.S. Chopra, and Sarla Mudgal v. Union of India.
In the Shah Bano case, the court observed that Article 44 has remained a “dead letter” and added that a common Civil Code will help the “cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. It said that the legislative is entrusted with the duty of securing a uniform civil code for the citizens of the country. “A beginning has to be made if the Constitution is to have any meaning.”
III) In the Sarla Mudgal Case in 1995, Supreme Court requested the prime minister to reexamine Article 44, aiming to establish a UCC throughout India.
However, subsequent orders in the Ahmedabad Women Action Group Case (1997) and the Lily Thomas Case (2000) clarified that the court did not direct the government to enact a UCC in the Sarla Mudgal case.
Arguments against UCC
I) The 21st Law Commission brought up a consultation paper on “Reform of Family Law” in August 2018 in which it said that UCC was “neither necessary nor desirable at this stage”. It however recommended that existing family laws across religions are modified and codified to tackle discrimination and inequality in personal laws.
II) The Law Commission, which was headed by former Supreme Court judge BS Chauhan, observed: “Cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.”
III) While agreeing that various aspects of prevailing personal laws disprivilege women, the Commission however said that “it is discrimination and not difference which lies at the root of inequality.”
IV) It added that efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights.
It should be noted that the suggestions of Law Commissions are not binding on the government but act as a reference for further decisions.
source by :Hindustan times
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