Bharat SainiLast Updated on March 29, 2017 by Bharat Saini
In Favour
The Uniform Civil Code (UCC) is a dream long deferred. A common Civil Code that would put in place a set of laws to govern personal matters of all citizens irrespective of the religion is perhaps the need of the hour.
While there is a criminal code which is applicable to all people irrespective of religion, caste, tribe and domicile in the country, there is no similar code when dealing with respect to divorce and succession which are governed by Personal Laws. The UCC seeks to administer the same set of secular civil laws to govern all people.
Uniform Civil Code means one national code which will be applicable to all citizens irrespective of their religion. It covers areas like marriage, divorce, maintenance, inheritance, adoption. These matters are of secular nature and hence can be regulated by a uniform law. It is based on the premise that there is necessarily no connection between religion and personal law in a civilized society.
India should implement Uniform Civil Code for the following reasons :
(a) To be ‘Secular’ : In order to be completely secular, laws should have nothing to do with religion. All we have right now, is different factions of population practising different laws. The true implementation of India’s secularism would be made by enacting personal laws outside the purview of religion. All Indians will truly be treated equally regardless of their religions.
(b) To reduce the burden on the legal system : Different personal laws for different communities create un-necessary burden on the legal system. Bringing a UCC would reduce that. It would also help in simplifying a lot of technicalities which are present in different personal laws. It will also address loopholes present in different personal laws.
(c) It will promote unity : Single personal law for all Indians would promote unity. It will also help in the progress of India as a nation.
(d) Better laws will be enacted : A lot of different personal laws which are grossly unjust, unfair, discriminatory and downright and unconstitutional are given protection under religious freedom. Most of these laws do not help people. UCC will bring about better laws and will promote a better legal system.
(e) It will help better the situation of women : Monogamy should be mandated on all Indians. This will happen through UCC. UCC is a major step towards gender justice. Muslim women have hardly got any right as to maintenance or inheritance. SC initiated last year a historic exercise to examine if controversial practices such as instant divorce and polygamy allowed by Islamic personal law results in gender discrimination. Since then a number of Muslim women have come forward to challenge the legitimacy of these practices. SC recently admitted the plea of a women from West Bengal challenging triple talaq. Providing a strong UCC will help better the situation of Muslim women which will in turn help the community’s progress.
Also certain provisions of Christian law and Hindu law need amendment. That too will happen with UCC.
(f) It will discourage vote bank politics : If all Indians have same laws governing them, then the politicians will have nothing to offer to any community in exchange of their votes.
The Supreme Court has time and again reiterated the importance of enacting a UCC. The Directive Principles of State Policy under the Constitution of India also state that the State shall pass a Uniform Civil Code. The Supreme Court has already given a deadline to Union Govt. to present its views on UCC.
During the debate in the Constituent Assembly, Dr. B. R. Ambedkar while supporting the need to frame a UCC, expressed the hope that its application might be purely voluntary. He also said, “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. We are having this liberty in order to reform our social system, which is full of inequities, discrimination’s and other things which conflict with our fundamental rights.” Babasaheb’s pragmatic words are of great relevance to the Indian social context today.
There is a myth that UCC will impose the majoritarian view i.e., Hindu laws and this will threaten the secular nature of our country. It is, in fact, the cornerstone of true secularism, where everybody is treated equally and similar laws are applicable to everyone irrespective of their religion. Such a progressive reform would not only help to end discrimination against women on religious grounds but also strengthen the secular fabric of the country and promote unity. However it can be implemented only when there is wide acceptance from all religious communities after discussing all the pros and cans as no decision, however reformatory, could be thrust on the people without their acceptance. Several religions and communities have numerous misunderstandings and misconceptions about UCC. All misgivings would have to be squarely addressed for progress to be achieved on this count.
With the govt. seeking the opinion of the Law Commission to examine all aspects pertaining to UCC, the time has come for an enlightened debate in the country to arrive at a consensus at the earliest.
We have seen what different set of rules can do, what we have not seen is uniform set of rules which is for all a must for real democracy.
Against
Public and political debates surround the ‘paramount’ duty under Article 44 of the Indian Constitution, that asks the state to endeavour to secure a Uniform Civil Code (UCC).
However, amidst the urgency to fulfill the duty, there are certain questions which need to be answered first. Who gets to decide what religion requires : the custodians or the coreligionists ? How long is the state to endeavour UCC ? Has the state not endeavoured at all ? What exactly can be the code do ?
Simply a directive principle cannot bring in the urgency to comply with it. A directive principle has the motive of providing the path to progress in a correct, conclusive and effective direction. This, however, seems not the case when it comes to UCC.
First of all, for a UCC to apply to a vast country like India, it needs to be inclusive of all the aspects that supports every religion. However, the current demand for a Uniform Civil Code seems to be on a majoritarian basis, mainly of applying the Hindu Laws. This can lead to an establishment centred hegemony which can hurt the very secularity of Indian polity.
Second of all is the question of whether the time is ripe to secure a UCC ? It can be answered when looked into the preparation of the code. The ‘technical element’ and the ‘political element’ both seem to be lacking, which forms the basis of any codification process. The technical elements like possessing the knowledge of the customs that are to be codified as well as the political element that is, the political will to codify is still in its infant stage.
Thirdly, it is a sad mistake of simply assuming UCC as all about Hindu-Muslim relations and identities. One needs to possess enough knowledge about the religious personal law of other Indian communities. Also, there is hardly enough knowledge about the personal laws of various tribal communities.
By ‘uniform’ it is understood that all citizens are to be subjected to the same law, regardless of community, religion and identity. But this personal law, however, stands anchored in the freedom to practise religion. A state intervention will be termed as a violation of fundamental right.
The idea for a Uniform Civil Code also seems to be in conflict with article 51(A)(f). Thus, arises the need to invest the actual legal and social meaning of the fundamental duty of citizens “to value and preserve the rich heritage of composite culture.”
Securing a Uniform Civil Code becomes a very sensitive issue as it deals with personal laws of every religion. Thus, amidst the scenario of rising Islamic fundamentalism and also the issue of saffronization, there arises a need to avoid providing opportunities to religious diehards to raise communal controversies and clashes.
The diversity within India is preventing the enforcement and creation of a Uniform Civil Code. Also there must be a realisation that UCC cannot be brought in to bring changes overnight. Forced legislation, which now seems to be the case, cannot help achieve the utilitarian goals. This can only be done slowly by seamless transition through secular laws.
Past incidents like opposition to a private bill for uniform adoption law thrown out by land protests in Parliament, proves that forced legislation becomes unacceptable. However when adoption was made possible through the Juvenile Justice Act, the dynamic interpretation of Bombay and Madras High Courts to make it applicable to Christians as well as Supreme Court’s verdict of involving Muslims to adopt witnessed no whimper of protest from any community.
It is said that a Uniform Civil Code will help strengthen unity of the nation. However, it is wrong to assume that the process of integration is thwarted for want of such law. Such simplistic assumptions may be good propaganda material in the hands of fascist religious forces, but is a harmful method of achieving unity. Apart from being counter productive, it may divert our attention from the crucial socio-economic and political causes which need to be attended to achieve integration of the communities.
Thus, there comes the realisation that the dynamics of social transformation through the instrument of law from diverse civil code to uniformity needs to be gradual and that which cannot happen in a day. This can be possible when India is much stronger by its multi-cultural, multi-religious differences and when national identity is more secure in its diverse form than through a forced homogeneity of all personal laws.
And this gradual transformation can happen only when there is free borrowing from laws of each other, gradual changes made in pieces of legislation, judicial pronouncements made that assure gender equality and adoption of expansive interpretations for broadening the outlook relating to marriage, maintenance, adoption and succession by specifically acknowledging the benefit that one community secures from the other.
Taking up of reforms from every personal law through independent initiatives will lead to creation of laws that will remain uniform over a longer period of time.
