16 Oct 2016 4:41 AM GMT
“Everything has been said already, but as no one listens, we must always begin again.” - Andre GideArt. 44 of the Constitution of India says “ The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”The Supreme Court in Mohd. Ahmad Khan v. Shah Bano Begum, observed that the State should take initiative in making a uniform civil...
“Everything has been said already, but as no one listens, we must always begin again.” - Andre Gide
Art. 44 of the Constitution of India says “ The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The Supreme Court in Mohd. Ahmad Khan v. Shah Bano Begum, observed that the State should take initiative in making a uniform civil code. In Sarla Mudgal v. U.O.I., Kuldip Singh J., while delivering the judgment remarked, “When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India.” There was an appeal to the government to have a re-look at Article 44 of the Indian Constitution, which suggest Uniform civil code for the citizens. In Ahmadabad Women’s Action Group (AWAG) v. Union of India, a PIL was filed challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory and non-statutory law. This time Supreme Court became a bit reserved and held that the matter of removal of gender discrimination in personal laws “involves issues of State polices with which the court will not ordinarily have any concern.” In Lily Thomas v. U.O.I., the S.C. perused the same. In 2003, in John Vallamattom v. U.O.I., C.J. Khare commented: “We would like to State that Article 44 provides that the State shall endeavour to secure for all citizens a uniform civil code throughout the territory of India. It is a matter of great regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.” This case was also acknowledged in the 209th Law Commission Report on the Proposal for the Omission of Section 213 of the Indian Succession Act, 1925.The Supreme Court ruled in Seema v. Ashwani Kumar,that all marriages irrespective of their religion be compulsorily registered. The Court felt that, “this ruling was necessary by the need of the time as certain unscrupulous husbands deny marriage, leaving their spouses in the lurch, be it for seeking maintenance, custody of children or inheritance of property.”The Supreme Court order is a first step towards the Uniform Civil Code. “It is high time we took a second look at the entire gamut of Central and State laws on registration of marriages and divorces to assess if a uniform regime of marriage and divorce registration laws is feasible in the country at this stage of social development and, if not, what necessary legal reforms may be introduced for streamlining and improving upon the present system.”
Also Read : Uniform Civil Code or ‘Unilateral Civil Code’
INDIAN CONSTITUTION AND INTERNATIONAL LAW IN REFERENCE TO UNIFORM CIVIL CODE.
Under International law, a state that ratifies an international instrument becomes legally bound to implement its provisions. Accordingly India having ratified the International Covenant on Civil and Political Rights, 1966, and International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979, is bound to enforce the relevant provisions and ensure gender equality under its national laws. However, women in India under Hindu, Muslim and Christian laws continue to suffer discrimination and inequalities in the matter of marriage, succession, divorce and inheritance. So as a step towards a gender just code, the personal laws of various communities in India need a closer look and reform, not only in compliance with the Indian Constitution but also as per the provisions of the International law.
Prevalence of discrimination against women under various personal laws of different communities in India was openly accepted by India in its periodic report before the United Nations Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) when it admitted, “The personal laws of the major religious communities had traditionally governed marital and family relations, with the Government maintaining a policy of non- interference in such laws in the absence of a demand for change from individual religious communities.” Hence, with regard to Articles 5(a)(2) and 16(a)(3) of the Convention, the India declares that “it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent.”
Personal laws have often been kept beyond the reach of fundamental rights by shifting the burden of sanitising the discrimination in personal laws to the parliament. Surprisingly, the Supreme Court has not hesitated in giving full effect of certain other Directive under Part IV, such as the right to education, and elevating them to the status of a Fundamental Right. A similar approach has not been forthcoming on the Constitutional directive to bring about a uniform civil code,though the courts have time and again exhorted the government of the day to take necessary steps in this direction.
India needs a uniform civil code for two principal reasons;
First, a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices. This was a key issue debated during the making of the Constitution.Our founding fathers have been cautious in their phraseology while drafting Article 44 and therefore in a situation where the nation is in the grip of communal tension hurry must make way to moderation. Initially the idea of Uniform Civil Code was raised in the Constituent Assembly in 1947 and it was incorporated as one of the directive principles of the State policy by the sub-committee on Fundamental Rights and clause 39 of the draft directive principles of the state policy provided that the State shall endeavour to secure for the citizen a Uniform Civil Code. The arguments put forward was that different personal laws of communities based on religion, “kept India back from advancing to nationhood” and it was suggested that a Uniform Civil Code “should be guaranteed to Indian people within a period of five to ten years.”The Chairman of the drafting committee of the Constitution, Dr. B.R. Ambedkar, said that, “We have in this country uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete criminal code operating throughout the country which is contained in the Indian Penal Code and the Criminal Procedure Code. The only province the civil law has not been able to invade so far as the marriage and succession ....... and it is the intention of those who desire to have Article 35 as a part of Constitution so as to bring about the change.” Though Dr. Ambedkar was supported by Gopalaswamy Ayyangar and others but Pt. Jawarharlal Nehru intervened in the debate. Nehru said in the Parliament, “I do not think at the present time the time is ripe for me to try to push it (Uniform Civil Code) through [Virendra Kumar, “Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla Mudgal (1995)].” Since the Uniform Civil Code was a politically sensitive issue, the founding fathers of the Constitution arrived at an honorable compromise by placing it under Article 44 as a directive principle of state policy.
Later, in the first decade after independence, the opposition from Hindu conservatives to the Hindu Code Bill was eventually overcome. Nothing similar was tried when it came to Muslim conservatives. The political leadership of the day mistakenly decided to not take on conservative Muslim opinion just after the trauma of partition.
There is a second reason why a uniform civil code is needed i.e. for gender justice or rather I say gender equality. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example. In Farooq Khan case, the Armed Forces Tribunal, Lucknow Bench held this practice of triple talaq unconstitutional. Though at present it is subject to adjudication by the Apex Court in Shayara Bano v. Union of India & Ors. It is important to note that Dr. B.R. Ambedkar fought hard for the passage of the Hindu Code Bill because he saw it as an opportunity to empower women. The great Muslim social reformer Hamid Dalwai also made the rights of women a central part of his campaign for a uniform civil code.
The move towards a common civil code cannot be a hasty one. There is the obvious political challenge on assuaging the fears of the Muslim community. The government will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives, as has been the wont of previous governments.One strategic option is to follow the path taken after the fiery debates over the reform of Hindu civil law in the 1950s’. Rather than an omnibus approach, the government of the day could bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages.
The civil law in Goa—derived from the Portuguese Civil Procedure Codecould be a useful starting point for a change & bringing in UCC. The coastal state continued with its practice of treating all communities alike even after its entry into the Indian Union.The Goa civil code is largely based on the Portuguese Civil Code (Código Civil Português) of 1867, which was introduced in Goa in 1870. Later, the code saw some modifications, based on:
The civil code was retained in Goa after its merger with the Indian Union in 1961, although in Portugal, the original Code was replaced by the new Portuguese Civil Code of 1966. In 1981, the Government of India appointed a Personal Law Committee to determine if the non-uniform laws of the Union could be extended to Goa. The Goa Muslim Shariah Organisation supported the move, but it was met with stiff resistance from the Muslim Youth Welfare Association and the Goa Muslim Women's Associations. The government would also do well to complement the overdue move towards a uniform civil code with a comprehensive review of several other laws in the context of gender justice. That too is important in our times.
The underlying principle should be that constitutional law will override religious law in a secular republic. Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution. Even those who argued in the Constituent Assembly for continuing with different civil codes were not arguing on matters of principle, but of political expediency. They hoped that India would move to a common civil code within a decade or so.
It is now more than66 years since the Constitution came into force. It is high time there was a decisive step towards a common civil code. In this regard the present NDA Govt. indeed has asked the Law Commission to give its opinion. The Law Commission on this point has asked the opinion of the people at large. That is actually a good initiative for the change & to bring in the uniformity by referendum.
Uniform Civil Code is the need of the hour. A strong political will is required for the same along with the feeling of tolerance of other religions and mutual respect on part of each and every citizen of India.I think at present time, the time is ripe for us to try to push Uniform Civil Codethrough.To sum up in last, it can be said for citizens belonging to different religions and denominations, it is imperative that for promotion of national unity and solidarity a unified code is an absolute necessity on which there can be no compromise. A true spirit of secularism must be shown by all in achieving the same.
Mohit Sharma is a Lawyer practising in the Trial Courts & the Hon’ble High Court of Himachal Pradesh, Shimla.
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