Has the time come for a Uniform Civil Code in India?

December 7th, 20106:18 pm @    


Introduction:

India’s history is testimony to the fact that it’s been a country of personal laws. Till the early twentieth century, different sets of rules were followed by Muslims in India. It was till the year 1935 that different sects of Muslims like the Khoja Muslims and the Kutchi Memons had their own rules of practice. The latter worshipped the Hindu Gods and Ali as their tenth avatar instead of Kalki. Their inheritance and also the matrimonial laws were as per the Hindus. The enactment of the Muslim personal law, many such minority creeds of Muslims had to accept those laws even if they differed in practice from their customary ones. This was not the case only among the Muslims. The Hindus too had various personal laws prevailing in different parts of the country. But, these have undergone a drastic change due to the geographical unification of India as well as the reforms brought about by the British regime viz. ban on the practices of child marriage, sati and human sacrifice, encouraging widow-remarriage, introducing divorce and amending inheritance laws in India.

History and the Uniform Civil Code

The issue of introduction of the Uniform Civil Code in India has been debated upon since the time India attained independence with the Indian Parliament debating on it in as early as 1948. It witnessed some strong opposition from the Muslim fundamentalists like Poker Saheb and members from other religions. Though it did get support from the Chairman of the Draft Committee and father of our Constitution Dr. B.R. Ambedkar along with some prominent journalists like G.S. Iyengar, K.M. Munshiji and Alladi Krishnaswamy Iyer amongst others to name a few. Though the Congress had promised it would allow Muslims to practice Islamic laws, there was a fear, among Muslims, of a possible interference with the Muslim personal laws and they contended that India would not be the same again if UCC was to be introduced. As a compromise, the architects of the Constitution included the Uniform Civil Code under the head of Directive Principles of State Policy in Article 44. Some distinguished members did show their dissent stating that the path towards nationhood was being hampered by the very existence of religion-based personal laws. Earlier it was favoured to guarantee the Uniform Civil Code to the Indians within five to ten years. Sixty-three years have passed and we’re still pondering over such a possibility.

The Discussions on Uniform Civil Code

There have been many debates, articles, discussions, contradictions but neither our political leaders, nor individuals have concentrated their efforts towards realisation of the Uniform Civil Code in India. The common knowledge about this system includes a common law understanding of the concept of marriage, succession or property and everyone’s guessing what exactly these laws will be. Article 44 of the Constitution of India states that “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”. Thus, we can safely say that even the Constitution says that establishing the UCC is the only way to achieve national integration. However these are just “Directive Principles” and are not enforceable in any court of law under Article 37 of the Constitution. Though these can be regarded as the fundamentals of governance, the Constitution itself is unclear of its stand about the implementation of UCC which it does not make mandatory. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde.

Supreme Court of India and the Uniform Civil Code

The apex court, on several instances has directed the government to realise the directive principle enshrined in the Constitution with regard to the UCC. The Supreme Court was hearing a case which was to be an open-and-shut case but only because the Hon’ble Court bemoaned the absence of a Uniform Civil Code in India, the Muslims took to the streets and persons like Z A Ansari and Syed Shahabuddin came forth to establish Muslim orthodoxy. The case was the famous Shah Bano case. Similar was the stance of the apex court in a 2003 case to strike down Section 118 of the Indian Succession Act which prevented Christians from willing property for charitable and religious purposes and so citing the inability of the Government to enact UCC, the SC declared the Section unconstitutional. Will religious orthodoxy and the lumen once again join hands to scuttle what is a progressive and essential measure, after painting it as an attack on established religion?

The Time for a Uniform Civil Code has come now!

The need of the Uniform Civil Code has been suffered for about a century. What a pity that the world’s longest and most elaborately written Constitution in the history of mankind is itself responsible for such erosion. Does India need the Uniform Civil Code? Of course, she does. It is high time that India had a uniform law dealing with marriage, divorce, succession, inheritance and maintenance. Even the Western countries like Italy and France have enforced it. But, the scenario in India is a lot more complex. We have a strong and long history of personal laws and it cannot be given up easily. A broad consensus must be drawn among different communities to facilitate such a landmark step in India’s religious, social, political and most importantly judicial history. India is secular but only on papers; in reality, it’s yet to achieve that secularity.

Conclusion

If Muslim countries can reform Muslim laws and if Western countries have fully secular systems, then what is the rationale behind the Indian Muslims being governed under the laws passed in the 1930s? The debates in India have gone the way of the secularists and recent rulings of the Supreme Court calling for Uniform Civil Code has not witnessed the protests and alarms that took place following the Shah Bano case in 1985. It is quite possible that different orthodox communities see a Uniform code as a fait accompli after more than 60 years of India’s independence. The matter is far more political than legal. Every time the issue has come up, there have been angry words from both sides of the debate.

Religious fundamentalism must go, social and economic justice must be made available to the so-called minority and oppressed groups and their dignity should be ensured to achieve this dream of one India, one society and one Law.

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He is pursuing UG Degree in Law from Rajiv Gandhi National University of Law, Punjab.

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