Introduction

India is a diverse country with many religions and social customs prevailing within its borders. It is a secular country that provides "freedom of religion" to all individuals articulated under article 25 of the constitution. The diversity in religions have led to the enactment of many religion-based personal laws to govern every matter relating to the religious ideals. [1]
The Uniform Civil Code is one of the Directive Principles of State Policy defined under Article 44 of Part IV of the Indian Constitution as, “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” It resonates with one country, one rule where the Uniform Civil Code manifestly aims to interchange the system of different personal laws. It governs inter-personal relationships and other matters within different religious communities to bring every matter pertaining to personal laws into one umbrella unit.

Before the independence in 1945, the Sapru Committee suggested two categories of individual rights. One justiciable and the other non-justiciable rights clearly emphasising the difference between Fundamental Rights and Directive Principles of State Policy or DPSP. Article 44 is in clear violation of Freedom of Religion as enshrined under Article 25 as it is a Fundamental Right.

Impact on personal laws

In India there are five major religions viz. Hindu, Muslim, Christians, Parsis and Jews. Each religious community has different laws of its own. Nevertheless, among each of these communities there are more laws vary based on gender, sect, domicile, and forms of marriage undergone. Apart from these, there are still a large number of custom practices prevailing in different communities. Before independence, Hindus were governed by the law of Mitakshara and Dayabhaga and these laws were not applied equally the result was that four separate sub-schools came into existence. This way, separate personal laws were applicable to Hindus. Similarly, the Muslims were divided into two sects i.e., Sunni and Shia. [2] Hindu personal laws have been secularized and modernized by different statutory enactments. On the other hand, Muslim Personal Laws are still largely conventional in their content. The Shariat Law of 1937 governs the personal affairs of all Muslims in India. It clearly states that in matters of personal disputes, the state shall not interfere and the religious authority shall pass a declaration based on the interpretation of the Quran and Hadith.

With the implementation of the UCC in India, it will have a major impact on the customs and practices that are followed only by Muslims under their law. Separate personal laws are one of the ways in which people can exercise their right to practice their religion, which has been particularly important for minorities. The UCC can become a tool for eradicating this right, suppressing minorities and homogenizing culture. [3] It is quite evident that the UCC applies only to criminal cases save for civil matters. Personal laws were never much interpreted in order to save foundational pillar of the constitution. It is also evident that personal laws of Hindus have been modernised to some extent but Muslim laws had mostly been static since independence.

The practice of Iddat by divorced or widow wife for 3 months and 1 year in case of pregnancy before second marriage, the practice of Nikah Halala which means in case the woman wants to go back to their first husband, she has to consummate a second marriage. In case of Adoption except Hindu law no other personal laws allow the couples for adoption. In the case of Shayara Bano v. Union of India [4], it was observed that Muslim couple cannot legally claim the adoption of a legitimate child. The UCC will have a considerable impact on inheritance and succession of a Muslim man’s property for instance under Sunni law an illegitimate child will have the share in the mother’s property while under Shia law there is no such consideration [5]. It can be seen that by the implementation of Special Marriage Act,1954 Muslims can have inter-faith marriages which is clearly prohibited under Muslim law and by the implementation of UCC it will become a usual practice which will impair the very structure of Islamic culture.

Reforms necessary before the implementation of UCC

The framers of the constitution had inserted personal laws in the concurrent list which manifestly means States and the Union will have concurrent powers to oversee them. This also means the Union does not have the required power to solely amend or repeal the same without any aid from the State. The Law Commission recently delivered a contrasting view on the implementation of UCC as it said, Uniform Civil Code is neither necessary nor desirable at this stage [6].

The need to bring Uniform Civil Code in the mainstream was efforted in the case of Mohd. Ahmed Khan v. Shah Bano Begum (1985) [7], where the Apex Court while hearing a plea on maintenance directed that the Muslim women would be entitled to get maintenance as provided under section 125 of the Cr.PC. Also, in the case of Sarla Mudgal v. Union of India [8], the Apex court directed the Ministry of Law and Justice to check the steps and efforts taken by the Government of India in effecting the UCC.

In a recent case of Satprakash Meena v. Alka Meena (2021), Justice Pratibha M. Singh has observed that, there is a need of Uniform Civil Code as people are becoming homogeneous. But it can be seen that there is more polarisation in the era of RSS-Hindutva ideologies. Honor killings are prevalent in the BJP led government which soared 800 percent as the data on honor killings shows 251 cases reported in 2015 while only 28 cases reported in 2014 [9]. Caste based killings are also prevalent in this country [10].

From the overall scenario it clearly seems that the government should first fill these voids before implementing UCC. In a recent scenario, the CJI lauded Goa as a State which the constitutional framers envisaged for. Although, Goa has implemented UCC and it runs on Portuguese Civil Code, 1867 but under Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880 it provides that, “a Hindu husband can take a second wife if the wife has attained 25 years of age and also if she has attained the age of 30 without having a son” [11]. This code prohibits polygamy for Muslim men but allowed bigamy for Hindu men. It is clearly a code with different meanings and practices which debars the actual meaning and use of the UCC.

Conclusion/Way Forward

Thus, India being a democratic country with diverse cultures has its own importance. The implementation of Uniform Civil Code is the need of the majority but also it restricts the freedom and conscience of the minorities. The implementation of the UCC will bear fruit but only if it is at snail’s pace. There could be manifold reforms to look for before solely implementing the UCC. There are other Directive Principles which needs some concrete consideration, article 39 of the Constitution mandates the State to provide proper livelihood, article 47 directs the State to raise nutrition level, standard of living and improve public health but India ranks 94th in the Global Hunger Index [12]. Article 48A says about protection of environment and to safeguard the wildlife but India has 9 out of 10 most polluted cities in the world [13].

References

[1]

Anusha C Gudagur, Impact of Uniform Civil Code on Muslim personal law, INDIAN LAW PORTAL (Jul. 11, 2020, 3:15 PM), https://indianlawportal.co.in/impact-of-uniform-civil-code-on-muslim-personal-law/.

[2]

D. C. Manooja, Uniform Civil Code: A Suggestion, 42 Journal of the Indian Law Institute 448, 450-451 (2000).

[3]

Viraj Gaur, Uniform Civil Code: What It Is & Why It Matters, THE QUINT (Nov. 23, 2019, 11:08 AM), https://www.thequint.com/explainers/uniform-civil-code-explained-what-it-is-and-why-it-matters#read-more.

[4]

Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).

[5]

Supra note 1.

[6]

Krishnadas Rajagopal, Uniform civil code neither necessary nor desirable at this stage, says Law Commission, THE HINDU (Aug. 31, 2018), https://www.thehindu.com/news/national/uniform-civil-code-neither-desirable-nor-necessary-at-this-stage-says-law-commis.

[7]

Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 945 (India).

[8]

Sarla Mudgal v. Union of India, 1995 AIR 1531 (India).

[9]

Aimee Brannen, Honor killings in India soar by nearly 800 per cent as leading activists call for more action, DAILY MAIL (Dec. 7, 2016, 23:47 GMT), https://www.dailymail.co.uk/indiahome/indianews/article-4010700/Honour-killings-India-soar-nearly-800-cent-.

[10]

Jahnavi Reddy, 60 stories that tell how caste-based violence continued unabated amid pandemic, THE NEWS MINUTE (Mar. 8, 2021, 8:02), https://www.thenewsminute.com/article/60-stories-tell-how-caste-based-violence-continued-unabated-amid-pandemic-144801."

[11]

Faizan Mustafa, Explained: Why Goa’s Civil Code is not as uniform as it is made out to be, INDIAN EXPRESS (Apr. 20, 2021, 7:41 AM), https://indianexpress.com/article/explained/why-goas-civil-code-is-not-as-uniform-as-it-is-made-out-to-be-7279365/#:~:text=".

[12]

PTI, India ranks 94 in Global Hunger Index 2020, placed in ‘serious’ category, THE PRINT (Oct. 17, 2021, 4:35 PM), https://theprint.in/india/india-ranks-94-in-global-hunger-index-2020-placed-in-serious-category/525558/.

[13]

Tanvi Deshpande, India Has 9 Of World's 10 Most-Polluted Cities, But Few Air Quality Monitors, INDIA SPEND (Dec. 15, 2021), https://www.indiaspend.com/pollution/india-has-9-of-worlds-10-most-polluted-cities-but-few-air-quality-monitors-792521#:~:text=Indi.

 About the Author: This post is prepared by Mohammed Zaid, Law Student from Jamia Milia Islamia. They can be reached at zaidviley@gmail.com

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