Introduction
“Individually we are different colors but together we are a rainbow”
India is family of 135 crore people who live together yet separated due
to the social evils existing in the society. One of the social evils is
inequality, on the basis of caste, color, creed, sex, religion, culture and
beliefs etc. These social evils derive their source from the Individual laws. Individual laws[1] which are also
known as Personal laws may be
defined as the laws being followed by the individual of various religions
existing in the country. The individual laws fetch authority from the Religious
texts, beliefs, customs and norms of various religions.
The constitution of India states that India comprises of A Sovereign, socialist, secular, democratic
and Republic which follows the principles of Justice, Liberty, fraternity and
equality[2] yet India remains
divided. The reason behind the division of India is the narrow minded thinking
of people, exorbitant politicization and the orthodoxies with respect to
religion in the minds of citizens of India.
Part IV of the Indian constitution accommodates of the Directive
Principles of State Policy. The directive principles are non-enforceable but
obligatory standards which are necessary to be followed in the administration
of the nation or while making any law. Article
44 under The Directive principles creates an obligation on the state to secure
A Uniform Civil Code throughout the territory of India[3]. A Uniform Civil Code (UCC) may be defined
as a common law for every citizen of the country irrespective of their
religion, culture, belief, caste and color etc. The UCC excludes the various
individual laws of the religions and believes in the principle of uniformity of
laws irrespective of the divisions or basis of inequality predominant in the
Indian Society.
The individual laws prevailing in India are one the biggest reasons of
the division of the country on a very large scale. The individual laws,
orthodoxies in religion and the politicization prevailing in India divides the
country on three major bases i.e. Gender, Religion and caste and the narrow
minded thinking of the individuals of the country acts as kerosene to the fire.
The division increases the crime rate and leads the nation towards downfall.
Uniform Civil Code even after 67 years of its enactment remains a dead
letter law, which brings immense shame to the country and the governments. If
India has to improve its current condition it has to finish the division
prevailing in the country and implement a Uniform Civil Code. A UCC can solve
all the major problems of India like crime rate, illiteracy, religious clashes
and gender related crimes etc. Implementation of UCC will wipe out the
individual civil laws related to marriage, divorce, adoption and succession
etc. India has a Uniform criminal law enshrined in The Indian Penal code and
The Civil Procedure Code. If India successfully
implements UCC throughout its territory, no one can stop it to become a super
power and achieve new heights in every field.
Review of Literature
Uniform
Civil Code: An ignored constitutional imperative, By - M.S. Ratnaparkhi
The Book Contains An Analytical, Graphic And Yet, Judicious Study Of The Much Debated And Controversial Topic Of A Suitable Legislation On Uniform Civil Code For All The Citizens Of India Despite Their Religion Or Race Or Ethnicity In Compliance With The Constitutional Mandate Under Article 44. The Author Has Most Capably And Creditably Examined The Subject In All Its Multidimensional Aspects And In View Of The Fact That, Like In India, In Almost All Countries Of The World, Muslims Co-Exist With Other Religion/Ethnic Or Racial Groups And Are Governed By The Same Civil Laws Without Any Animus Or Discordant Relationship With Their Fellow Countrymen. Significant Ayyats Have Been Quoted From The Quran Along With Various Judicial Verdicts, The Reforms Made In Other Islamic Countries Of The World, Wherein Personal Laws Have Been Subjected To Suitable Change In View Of The Prevalent Local Conditions. The Author Has Dispassionately And Unequivocally Brought Before The Intelligentsia The Fact That Unfortunately The Subject Has Generated A Lot Of Unavoidable And Spiteful Controversy, Which Sprung Not From Reasons, But From Misconstructed Religious Sentiments. The Entire Contents Of The Book Are Thought Provoking, And They Give An Impetus To Intellectuals To Explain To The People In General, And Muslim In Particular, The Merits And Advantages Of The Uniform Civil Code And Exterminate Their Unfounded Fears[1].
Why
not a Common Civil Code for all? By- M. Venkaiah Naidu
In this article, Shri Venkaiah Naidu, EX-
Central minister from BJP expressed his views on implementation of UCC in
India. He talked about the landmark cases on the topic like The Shah Bano,
Sarla Mudgal and Shayra Bano case. He further said that it’s a matter of
immense grief that India hasn’t been able to implement UCC even after its
mention as a directive Principle in The Constitution of India. He says that a
UCC can solve the major problems existing in the nation[2].
The
politics of Personal laws in South Asia: Identity, Nationalism and Uniform
Civil Code, By- Paratha Sarathy Ghosh
It is a political investigation of the
contention encompassing the issue of the uniform common code versus individual
laws from a South Asian point of view. At the focal point of the discussion is
whether there ought to be a brought together perspective on the legitimate
framework in a given society or a decentralized view, both evenly and
vertically.
This issue is ensnared inside the strings of
personality legislative issues, minority rights, ladies' privileges, national
incorporation, worldwide Islamic governmental issues and general human rights.
Bosses of every classification see it through their own crystals, making the
discussion amazingly intricate, particularly in strategically and socially
plural South Asia. Along these lines, this book endeavors to orchestrate the
strings of the discussion to give an all-encompassing political investigation[3].
Methodology
Objectives of the Research
The main object of this research is to yield a solution for the problems
due to which the UCC hasn’t been implemented yet. The research seeks to keep the
point of replacing the various individual laws and bringing uniform laws on
their place. The research wants to aims to provoke and aware people about the
UCC and the benefits it will shower upon the entire nation. The key objectives
of this research are as follows-:
1. To pick out the laws that require Uniformity.
2. To discuss the problems being faced due to
absence of UCC.
3. To study about the prevailing Individual laws
in the nation.
4. To raise voice against the crimes being done in
absence of UCC.
5. To find out that why is it difficult to
implement UCC in India.
Overview of UCC in India
Uniform Civil Code in Goa
Goa is the only state in India that has uniform common code paying
little heed to religion, sexual orientation, caste etc. Goa has a typical
family law. In Goa Hindu, Muslim, Christians all are bound with a similar law
related to marriage, divorce, maintenance, succession and adoption etc. The
property law of Goa is also governed by the common code followed by the people.
At the point when the Goa turned into a union territory in 1961 by the goodness
of the Goa Daman and Diu organization act 1962 the parliament approved the
Portuguese common code of 1867 to Goa which can only be changed and canceled by
competent legislation.
The Special Marriage Act is an act passed by the Indian Parliament to
provide marital status to the marriages of Indian citizens in foreign
countries, in inter-cast and inter-religion marriages, to the people who want
marry from their religious traditions. Normal marriages can also be registered
under this act but they may suffer the restrictions under the act. The
succession of the parties married under this act is dealt by their individual
laws respectively. This act deals with special marriages, their registration
and divorce. This law is like a ray of hope for the implementation of UCC.
Existence of such law in India is not less than an achievement for India and
Indians. Laws like this that remove inequality from the society should be
increase in number to make people ready for introducing UCC as a compulsion to
be followed, not an obligation to be ignored.
Individual laws in India
The Individual laws in India deal with civil matters like marriage,
succession, divorce, adoption and guardianship etc. The Hindu individual laws
have now been arranged, systematized and codified. The codification took place
in the year 1956 when the Hindu Code Bill was introduced in the parliament. The
Hindu Code Bill was divided into 4 parts or sections in the beginning that
dealt with marriage, succession, divorce, adoption and guardianship etc. Now
the individual laws have grown broader, they include laws like:
The Indian
Divorce Act,1869
The Converts’
Marriage Dissolution Act,1866
The Indian
Christian Marriage Act,1872
The Kaazis
Act,1880
The Muslim
Women (Protection of Rights on Divorce) Act, 1986.
The Paarsi
Marriage and Divorce Act,1936
The Dissolution
of Muslim Marriage Act,1939
The Anand
Marriage Act,1909
The Special
Marriage Act,1954
The Hindu
Marriage Act, 1955
The Child
Marriage Restraint Act,1929
The Foreign
Marriage Act,1969
The Indian
Succession Act,1925
The Muslim Religion still remains uncodified and unsystematic. The
individual matters of Muslims are dealt with the individual laws and the state
can’t interfere in that. The matters are solved by the sayings of their holy
book Quran. Similarly, the Jews and Christians in India are governed by their
own individual laws.
Need for a Uniform Civil code
Equality in the society
The Uniform Civil code if implemented will lead to equality in the
society. The individual laws that currently govern the civil matters of the
Indian citizens encourage inequality in the society by providing different laws
for the people of different religious communities. UCC will tend to wipe out
the inequalities in the laws of various religious communities and establish the
concept of equal laws irrespective of religion, gender and caste etc. Such
common code will lead to equality and promote the principle of national
integration.
Discrimination in Indian Society is majorly done on these two basis:
1. Religion
2. Gender
Implementation of UCC in India will finish such discrimination.
Consistency in laws
Uniform Civil Code will lead to establishment of stable and consistent
laws in the country. The existence of different individual laws for every
religious community creates confusion in the minds of people. UCC will aim to
provide simplified, stable and consistent laws, wiping out the existing confusion.
Enacting the principles of Secularism and
socialism
The preamble of India comprises it of a Sovereign, Socialist, Secular, Democratic
and Republic. The Uniform Civil Code will disconnect the civil laws from and
religion for establishing the true meaning of a Secular and Socialist state.
The civil matters in the country will be governed uniformly by the UCC.
Religion and Gender Equity
Enactment of UCC in India will promote justice by wiping out
discrimination done on the basis of religion and gender. UCC will finish the
gender equalities prevailing in the society like; Muslim men are allowed to
practice polygamy while Muslim women are forbidden to do so. If a Hindu widow
dies without leaving behind any heir, her property is transferred to the husband’s
family. The Sabrimala case is an
important case portraying oppression of women in the Indian Society
Indian Young Lawyers’ Association v. State of
Kerala[1]
(PETITION 1)
Kantaru Rajeevaru v. Indian Young Lawyers’
Association (PETITION 2)
A 4:1 greater part of the Supreme Court on 28 sept 2018 held that the
uniquely followed inside the Sabarimala Temple of not permitting ladies to
enter the fundamental region of the sanctuary is unlawful. The exceptionally
blocked women between the ages of 10 and 50 years old from entering the primary
territory of the sanctuary. The judgment held that the uniquely abused the
ladies' entitlement to opportunity of religion of female admirers of god under
Article 25 of the Constitution.
More than 50 petitions were along these lines recorded by various
individuals and affiliations including Kantaru Rajeevaru, the National Ayyappa
Devotees (Women's) Association, the Nair Service Society, and the All Kerala
Brahmin's Association. On 13 November 2018, the Court began the conference on
the petitions. As The Chief Justice Deepak Mishra had surrendered, Chief
Justice Ranjan Gogoi superseded him on the Bench. Various adjudicators on the
Bench proceeded as in the past: Justices Ajay Manikrao Khanwilkar, Rohinton
Nariman, D.Y. Chandrachud and Indu Malhotra.
Following one year, on 14 November 2019, the Bench passed on a judgment
keeping the review petitions pending and suggesting certain general ensured
requests to a greater Bench. These general issues identify with ladies'
entrance to open strict associations. By a limited 3:2 prevailing part, the
Bench guessed that other chance of religion cases may scrutinize the
speculation in the 2018 Sabarimala judgment and solicitation a referral. Judges
Nariman and Chandrachud deviated, holding that this hypothesis went past the
restricted degree of a survey appeal.
On 13 January 2020, another Bench containing the going with adjudicators
will begin hearing the general referral questions: Chief Justice S.A. Bobde and
Justices, R. Banumathi, Ashok Bhushan, Nageswara Rao, Mohan M. Shantanagoudar,
S. Abdul Nazeer, R. Subhash Reddy, B.R. Gavai and Surya Kant.
Before clear conflicts began the referral questions, the issue rose
concerning whether a Bench hearing a review advance could make a referral
regardless. The understanding negating the 14 November 2019 referral battled
that the Court's review region is too limited to even think about evening
consider taking into account a referral. Nevertheless, on 10 February, the
nine-judge Bench kept up the referral demand gave in the 14 November judgment.
It held that the Court can imply a point in law to a greater seat in a review
demand, in any case it didn't offer any reasons behind this finding. It has
marked three other pending cases - these cases identify with Muslim ladies'
privilege to enter mosques, Parsi ladies' qualification to enter a Fire Temple
in the wake of having hitched a non-Parsi, and the demonstration of female
genital mutilation (FGM) among the Dawoodi Bohra social order.
Another case that led to empowerment of Muslim women in the Indian
society was the Triple talaq case with the official name, Shayara bano vs Union of India[2].
In the triple talaq case the appellant Shayara bano was married to
Rizwan Ahmed, a renowned lawyer. Rizwan Ahmad divorced her wife Shayara bano by
Talaaq-e-biddat or triple talaq which grants divorce to Muslims by uttering the
word TALAQ thrice. Shayara bano filed a petition in the court for holding 3
practices:
1. Nikaah halaala
2. Polygamy
3. Talaaq-e- biddat(Triple Talaq)
The petition of Shayara bano was accepted and the Supreme Court formed a
bench of 5 judges. The apex court held that the practice of Talaaq-e-biddat is
unfair and declared it as an unconstitutional practice.
Difficulties related with Uniform Civil Code
Constitutional difficulties
If UCC is
implemented the right to freedom of religion and right to equality will come in
a conflict with each other.
§ Fundamental right to freedom of religion is
given to every citizen of the country under Article 25.
§ The privilege to "manage its own affairs
in matters of religion", on every religious community is granted to the
citizens by Article 26(b).
§ The right to conserve distinctive culture is
provided under Article 29.
§ The above mentioned rights get into conflict
with the right to equality before law provided under Article 14 and 15 of the Indian Constitution, if UCC is implemented
in India.
A person's
Right to freedom of religion under, provided under Article 25 is subject to
"public order, health, and morality".
A report by the Law Commission of India in the
year 2018 expressed that the UCC is "neither vital nor alluring at this
stage" in the nation. The Report further said that secularism can't negate
the pluralism predominant in the nation.
Social-political difficulties
The
minorities of India think that if UCC is implemented, the culture of majority
will be forced over them.
India is a
country with diverse cultures hence bringing uniformity among every person will
be a huge challenge.
Legal developments
The Supreme Court in Mohammad Ahmed Khan v. Shah Bano Begum[1] guided the Parliament to
sanction a UCC without precedent for history of India, in the year 1985. The
Supreme Court said that it is remorseful for the nation that Article 44 of The
Indian Constitution has stayed insusceptible for so long. A Uniform Civil Code
will prompt national solidarity by clearing different adherences to laws which
have conflicting ways of thinking. This was accentuated in Jorden Diengdeh v.
S.S. Chopra[2] in which the Court concluded
that a legitimate intervention was defended in order to oblige a uniform code
of marriage and separation. In Sarla Mudgal v. union of India[3], The Supreme Court requested
for a Uniform Civil Code and held that Fundamental rights related with religion
of people from any religion would not be impacted as such. In Sarla Mudgal v.
Union of India, The Supreme Court requested for a Uniform Civil Code and held
that Fundamental rights identified with religion of people from any religion
would not be impacted as such. The court in like manner clarified that the appraisal
of the court in Sarla Mudgal's case isn't definitive and is only a proposition.
After the judgment on Sarla Mudgal's case there came an adjustment in
the legitimate example of the nation. The court in Pannalal Bansilal v. State
of Andhra[4] Pradesh said that
authorization of a uniform law, which is exceptionally charming, may influence
the solidarity and trustworthiness of the country. India is a popularity based
nation administered by the standard of law so the current individual laws must
be made uniform gradually in an efficient way. The Government should concede
the obligation to the Law Commission which in meeting with Minorities
Commission ought to analyze the issue and draw out a thorough enactment. In
John Vallamattom v. Union of India, The Supreme Court again said again
requested that a uniform basic code will prompt national solidarity by emptying
the coherent irregularities reliant on convictions framework.
As of late the courts through lawful activism have advanced endeavors to
discard sexual orientation one-sided and other out of line rehearses which are
wearing veil of strict practices. On 23rd September 2015, The Gujarat High
Court in Yunusbhai Usmanbhai Shaikh v. State of Gujarat mentioned an evaluation
of practices like polygamy and triple talaq in Muslim Personal law and
broadcasted them "egregiously the male centric" . Following one month
in October, the Supreme Court in Prakash
v. Phulavati ordered an examination of practices like polygamy and triple
talaq in Muslim Personal law and declared them “harmful to public ethics”. The
court saw that there is "absolute disarray" because of individual
laws administering distinctive religious practices and obligated the Center to
execute Uniform Civil Code in the country.
Conclusion
Enactment of Uniform Civil Code will be a big step of India towards
achieving heights in future. Uniform Civil code will finish the discrimination,
inequality, division of people and lead the country towards national
integration. People need to be made aware regarding the implementation of
uniform laws, so that the fear in the minds of minority religions regarding the
laws of majority being forced over them finishes. Adapting such change in laws
will not be easy for the people hence it should be done slowly and gradually.
The administration can use the following ways for implement ting Uniform
Civil Code in the country.
Ways of implementing UCC in India
The social change from different systematized and uncodified laws to a
UCC will be time taking strategy and can't occur in a day. From this time
forward, the administration must receive a "Piecemeal" approach.
Government could bring separate viewpoints, for example, marriage,
appropriation, progression and support into a UCC in stages.
Government
must learn and adopt provisions from Goan practice of a typical common code,
which has been the law since 1867, when the state was under the Portuguese
pilgrim rule.
Besides,
when constitution maintains the explanation behind UCC in Article 44, it
shouldn't be puzzled to be a "point of reference based law".
Uniform
here implies that all religions must be administered by similar standards of
sex and human justice.
It will mean
modernization and refinement of every Individual law.
It would mean, not a
customary law, but extraordinary individual laws dependent on standards of
equality, freedom and justice.
Government
needs to make strides towards extending the care among everyone, especially
minorities, about the noteworthiness of having a Uniform Civil Code.
The Uniform Civil Code must cut a harmony between the security of basic
rights and strict creeds of people. It ought to be a code, which is simple and
legitimate as per a man of customary reasonability, with no predisposition
concerning strict and political contemplations. In the words of Leila Seth (The first woman CJI of High Court), "On
the off chance that we can't give them all the rights in one go, let us progress
gradually, however let us not be stale. Let us move towards sexual orientation
just laws and a uniform common code."
Bibliography:
1.
https://shodhganga.inflibnet.ac.in/bitstream/10603/197162/8/08_chapter%201.pdf
2.
https://www.scobserver.in/search?search_keyword=sabrimala+case&search_type=all&sort_by=Relevance
4.
https://www.scobserver.in/court-case/sabarimala-review
5.
https://www.lawyersclubindia.com/articles/research-paper-on-uniform-civil-code-8717.asp
7.
http://www.legalserviceindia.com/legal/article-773-uniform-civil-code.html
9.
http://ijlljs.in/wp-content/uploads/2016/02/22.pdf
10. https://en.wikipedia.org/wiki/Uniform_civil_code
11. Prof. MP Jain, Indian Constitutional Law (8th
edn, Lexis Nexis ) 1510
12. The Constitution of India
[1] Mohmad ahmed khan vs shah bano
begum1985 2Scc 556
[2] Jorden diengdeh vs ss chopra 1983
3SCC
[3] Sarla mudgil vs union of india 1985
[4] Pannalal banisalal vs state of
Andhra Pradesh 1994 1 supp Scc 713
[1] Indian
Young Lawyers’ Association v. State of Kerala & others (2018) SCC Online SC
1690
[2] Shayara bano V/S Union of India SCC (C) No. 118 of 2016
[1]
E-book available at https://books.google.co.in/books/about/Uniform_Civil_Code.html?id=6NCQQn0ixZUC&source=kp_book_description&redir_esc=y
[2]
Article available at- https://www.thehindu.com/opinion/lead/Why-not-a-Common-Civil-Code-for-all/article14491018.ece
[3] E-book available at- https://books.google.co.in/books/about/The_Politics_of_Personal_Law_in_South_As.html?id=YwvaaHI8sjEC&source=kp_book_description&redir_esc=y
[1] Mahendra
Pal Singh (ed.) V.N. Shukla’s constitutional
law of India(Eastern Book Company, Lucknow, 12th edition)
[2]
The Preamble, Constitution of India
[3]
The constitution of India (Bare Act) Universal publications
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