ABSTRACT
“This study focuses on the idea of the Uniform Civil Code and its legal implications. The Uniform Civil Code's core provisions, meaning, and related legal theories and concepts are all examined in this study.
The introduction to the Uniform Civil Code, which explores its history and outlines the idea behind it, is the first section of this article. This part also looks at whether the Uniform Civil Code is necessary or desirable, if it should be accepted, and its benefits and drawbacks. The Uniform Civil Code and constitutional protections are then discussed in more detail. This investigation comes to a finish with a number of recommendations and findings. The relationship between the Uniform Civil Code and secularism, as well as how the adoption of the Uniform Civil Code may cause the nation to become fragmented and the collapse of peace and harmony among the people, are all examined in this piece as we get closer to the research study's main subject”
Keywords: Uniform Civil Code, Personal Laws, Secularism, Constitution, Judiciary
INTRODUCTION
“A contentious issue is India's quest for a unified set of norms to replace personal laws based on the teachings and customs of each significant religious group there.
In India, an unified set of laws governing all citizens is intended to take the role of individual laws based on the scriptures and customs of each major religious community. This adage is extremely important in India because it's important to remember that religious conflicts led to the division of India and Pakistan. Political institutions have historically used religion as a weapon and as a source of conflict. The Israeli-Palestinian conflict involves religion. In India, several personal laws apply to various religions. For instance, in terms of marriage, divorce, and child support, the Hindu Marriage Act of 1956 applies to Hindus, Sikhs, Jains, and Buddhists.
In contrast to Muslims, who are subject to Islamic law, Christians are governed by Christian laws. There are three main schools of personal law in India: Hindu, Christian, and Islamic. According to the Unified Civil Code (UCC), all religious groups in India should be subject to a single body of legislation that governs matters like marriage, divorce, inheritance, and adoption. Article 44 of the Constitution serves as the foundation for the law, which mandates that the government make every effort to guarantee that everyone in India has access to a uniform civil code.”
RESEARCH METHODOLOGY
The research approach used for this project is doctrinal. It requires gathering information from several authoritative writers' publications on the subject.
This approach allows for the collection, evaluation, and comparison of recent literature. To begin with the inquiry, fundamental research and in-depth knowledge were required for the issue. The most important components of your proposal are strengthened with the help of the doctrinal research approach, further simplifying the goal.
In this study, secondary materials were used to further learning and comprehension of the issue, including publications, research papers, travel, and media stories.
LIMITATIONS OF THE RESEARCH
Because the data utilised was secondary, there was uncertainty, which made it more challenging to make a decision.
Pandemic: Finding the required study resources became challenging due to the peculiar conditions.
BACKGROUND OF UNIFORM CIVIL CODE AND ORIGIN
“The Directive Principles of the Indian Constitution's Article 44 were passed to end discrimination against weaker individuals and to unite various cultural communities throughout the nation.
Despite the fact that a UCC is desirable, Dr. B R Ambedkar, who drafted the Constitution, believes that it should be optional for the time being. As a result, Article 35 of the draft Constitution became Article 44 of Part IV of the Directive Principles of State Policy in the Indian Constitution. It was included in the Constitution as a prerequisite that would be satisfied if the nation was prepared to accept it and the UCC attained widespread acceptance. "No one need be frightened that if the State has the authority, the State would promptly proceed to execute...that power in a manner that may be deemed undesirable by the Muslims, Christians, or any other community," Ambedkar asserted in his speech to the Constituent Assembly. “If it did, I believe it would be a lunatic government.
The UCC has its origins in colonial India, when the British administration released a report in 1835 emphasising the necessity for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, and expressly recommended that personal laws of Hindus and Muslims be excluded”. Following the end of British control, the government created the B N Rau Committee in 1941 to codify Hindu law in response to a rise in legislation addressing personal issues. The duty of determining whether common Hindu laws were necessary fell to the Hindu Law Committee. The group promoted a formalised Hindu government that would defend women's rights in accordance with the Vedas.”
OBJECTIVES
1. To be aware of the practical challenges involved in adopting a uniform civil code.
2. To examine if the uniform civil code violates Article 25 of the Indian Constitution.
RESEARCH QUESTIONS
1. Is the idea that UCC can achieve gender equality a kind of illusion?
“It was commonly believed that all women, regardless of social standing, network, or class, would be affected by the rape and dowry issues that were the emphasis of the women's development movement. Many female activists believed that in the face of a male-dominated culture and state, sexual orientation problems could be stated plainly and forcefully. Legislation pertaining to assault and settlement was enacted and amended without much consideration for a person's status, network, or class. Due to the fact that women of all ranks, networks, and classes are susceptible to assault and sharing to varied degrees, some of the worries about attack and endowment are essentially sexual orientation issues.”
“Finally, there is a connection between the maltreatment and abuse based on sexual orientation in terms of station, network, and class. The discussion around the Indian Uniform Civil Code has brought this interconnectivity to light more clearly. The dispute over the concept of a UCC in India has included discussions of women's equality under the specific rules of many stringent networks in addition to the mainstream state versus strict patriotism. Questions regarding the fairness of sexual orientation have regularly come up in the discussion of the UCC. In this regard, it is challenging to approach the issue of gender equity in India without considering the UCC controversy. Any documentation of the discussion regarding the UCC without taking into account the issue of sexual orientation disparity is also included in those remaining parts”.
2. "Goa is the only Indian state with a Uniform Civil Code since it has a common family law." Do you believe it is hostile to ancient Indian civilization and culture?
“Since India's family laws mainly rely on strict and customary law, a standard civil code should not be enforced. Everyone holds that whatever is stated in their religion and in particular laws should be followed in their region. Some people also hold that their laws, customs, and conventions are accurate, while others may hold the opposing view. It is a breach of their basic right to "the possibility of silent, little voice, practise engendering of religion," as protected by Article 25 of the Indian Constitution, for individuals who feel that a convention or custom is unfair. Because everyone in India believes their traditions are ideal and should not be changed, the mixing of religious practices presents problems for the government and for society.
It is wrong to sanction one group's traditions on another, and the vast majority of the network—whether Hindu, Christian, or Muslim—are reluctant to support civil laws that separate religious traditions. As a result, I believe that India should not implement a single civil code since doing so will spark uprisings and violate many people's basic rights. The development of a unified civil code for the entirety of India is viewed as crucial since it promotes national cohesion, reliability, and abides by the tenet of "one resident, one law." In any case, this continued to be an issue because we live in a majority-rule nation where several social classes formerly lived and had their own laws. We risk violating all Indian inhabitants' fundamental rights if we impose one set of laws on them all. The privilege of that person will be violated since some people may think the law is right while others may think it is wrong.”
LITERATURE REVIEW
“The link between law and religion prevents the Indian government from changing religious personal restrictions, denying Indian women legal equality.
Secularism has long been a component of India's democracy, notwithstanding ongoing debates over its benefits and downsides. The future uncertainties of secularism have been carefully examined. The "uniform civil code of India '' refers to the idea of an uniform Civil Law Code in India. The question is whether the UCC surpasses people' right to be controlled by distinct personal laws based on their religion or ethnicity if it controls everyone regardless of faith. India's parliament has a measure that will create a unified civil code.” “But owing to resistance, it was never made into law. Islam does not recognise adoption, thus it would be against Article 25 of the Constitution, which guarantees the right to practise and profess any religion, according to the reasoning. Only the behaviours that are essential and basic to any faith are protected by Art. 25. In Arabia before the advent of Islam, adoption was a common practise.
Article 38 (2) states that the state shall endeavour to eliminate all forms of inequality . A Uniform Law will therefore only aim to do away with the status disparity between Hindu and non-Hindu adopted children. This book examines the connections between legal, cultural, and religious concerns in light of numerous intra- and inter community challenges. International Journal of Pure and Applied Mathematics Special Issue. There have also been a lot of suggestions and things to think about made. There have also been a lot of suggestions and things to think about made. The author claims that India has suffered because the Uniform Civil Code has been disregarded for a very long period. The necessity of it is thus discussed in this essay. This book's author believes that an unified civil code is an underappreciated subject that merits further consideration.”
CONSTITUTION OF INDIA ON UNIFORM CIVIL CODE
“The main problem is that, if the authors of the Constitution meant for a uniform Civil Code to be applied throughout India, they should not have included it as a part of the Directive Principles of state policy under Article 44 of the Constitution.
Directive Principles of State Policy, or simply instructions to the government, are included in Part IV (Articles 36 to 51). They are not enforceable in court and are not needed to be followed. They are only constructive duties on the part of the government that will support efficient leadership. Unambiguously stated in the Preamble is India's status as a democratic, secular republic. This demonstrates that there is no recognised religion. Anyone should be protected from discrimination in a secular state regardless of their religious affiliation. A religion solely cares about the interaction between people and God. It implies that one's daily life should not be impacted by their faith. The goal of an unified Civil Code is causally and tangentially related to the secularisation process.
In the case of S.R. Bommai v. Union of India, Justice Jeevan Reddy argued that religion is a matter of personal belief that cannot be mixed with secular pursuits and can be regulated by the state by passing legislation. The lack of an official religion, or, to put it another way, the fact that the state does not discriminate against people based on their faith, suggests that there is no official religion. The Indian Constitution's Articles 25 and 26 safeguard freedom of religion and the ability to establish religious law as enforceable basic rights. Similar to Article 43, Article 44 mandates that the state should make all reasonable efforts to ensure that India has a uniform civil code but is not enforceable in a court of law. The legislation that governs the populace is known as the uniform civil code, and it does not discriminate against anyone based on their faith.
A number of worries and criticisms surface as a fresh idea matures and gains popularity. What would make up the Uniform Civil Code was a major question that arose with the consolidation of personal laws. Because the personal rules of each religion differ from one another, their merger will not only arouse public discontent but also hostility. As a result, rules that strike a balance between the defence of fundamental rights and the religious beliefs of the diverse groups that exist in the nation will need to be included in the Uniform Civil Code. Legislation can be used to control certain secular concerns, including marriage, divorce, and child support.”
LANDMARK CASES
Mohd. Ahmed Khan v. Shah Bano Begum CASE
“The Supreme Court addressed the question of maintenance under Section 125 of the Code of Criminal Procedure when Shah Bano's husband proclaimed talaq against her. In his judgement, Chief Justice YV Chandrachud stated that the Parliament should specify the conditions for Uniform civil code since it is a tool that promotes national unity and equality under the law. Regardless, the government overlooked the issue, passing the Muslim Women's Protection of Rights on Divorce Act in 1986.”
Sarla Mudgal v. UOI
“The Supreme Court, in the case of Sarla Mudgal, President, Kalyani, and others against Union of India and others, advised the government to acquire a Uniform Civil Code based on the Hindu paradigm in order to protect the abused and create national cohesion.
Both Lily Thomas vs. Union of India and ABC v. State of Delhi was treated similarly.
The Supreme Court emphasised the importance of UCC in terms of succession in the former
case, while the Supreme Court determined that, despite the fact that the Guardian and Wards Act of 1890 did not recognise Christian single mothers' rights, a single Christian mother was clearly eligible to petition for sole guardianship of her child without the permission of the natural father in the latter case. The lack of a single civil law in this case created difficulties, according to the court.
PROS AND CONS OF UNIFORM CIVIL CODE
ADVANTAGES:
”Gender Equality: By establishing a uniform civil code throughout the nation, gender discrimination will be eradicated. In many faiths, males, for instance, control inheritance, marriage, and other aspects of life.
Seven decades after gaining their freedom, women are still working for equality.”
“National Integrity: The founding of UCC will aid in the unification of the nation. A single personal law that applies to everyone without distinction based on gender, caste, religion, or any other aspect will build national unity despite the variety of our country's cultural values.
The preamble of our constitution makes it quite clear that India is a sovereign, socialist, and secular nation. This is the cornerstone of secularism. However, it is past due to determine whether Indian citizens would experience real secularism without the UCC. Even now, after many years of freedom, many religions still maintain their own set of personal laws.”
Social reforms: Following the UCC's nationwide implementation, India will see yet another social transformation in the twenty-first century. For instance, Muslim women in India lack access to personal laws controlling marriage, divorce, and other issues. However, women in Muslim countries like Pakistan, Bangladesh, Turkey, and Morocco have personal laws that are codified. When the UCC is enacted, Indian women [particularly Muslims, Christians, and others] will be able to use a codified personal law. It thus serves as a catalyst for further social development throughout the nation.
DISADVANTAGES:
Community cohesion at risk: Many religions, especially minorities, expressed concerns about misunderstandings over the Uniform Civil Code. Numerous religions consider the UCC to be antagonistic against their religious practices and beliefs. Before adopting UCC, authorities must earn the trust of minorities. The collective tranquility of the country would be lost otherwise.
Personal freedom restrictions by the government: Many individuals think that restricting people's personal freedoms involves the government engaging in some dubious behaviour. The Uniform Civil Code's aim is to uphold and protect everyone's rights, nonetheless.
The Muslim community opposes the adoption of the Uniform Civil Code, arguing that the timing is not yet suitable for implementation. They contend that the issue should be seen in the context of other contemporary issues, such as the government's silence over the saffronisation of schools, meat issues, etc., as well as the dominance of the majority over minorities.
challenges brought on by India's diversity: The Uniform Civil Code must be implemented, which is a challenging task given the diversity of our nation. State-by-state and community-by-community cultural variation is another barrier to a single personal law.
NEED FOR UNIFORM CIVIL CODE
A uniform civil code has been desired for more than a century. India has already suffered a great deal as a result of the lack of a uniform civil code.
Sex, factions, and religion have all contributed to the demise of civilization. Different laws continue to control different cultures' rights in personal concerns including marriage, divorce, maintenance, adoption, and inheritance in India. Hindu regulations on divorce and inheritance differ significantly from those that apply to Muslims, Christians, and other religions. The majority of family law in India is founded on the parties' religious convictions. Muslims and Christians have their own laws, but Hindus, Sikhs, Jains, and Buddhists are all subject to Hindu law. The requirement for a single set of secular rules that will be applicable to all Indians, regardless of their religious affiliation, basically implies incorporating all of these personal norms.
Although the exact details of such a single code have not yet been established, it is predicted that it would combine the most contemporary and forward-thinking elements of all current personal laws while eliminating the outdated ones. Adopting a uniform civil code is becoming more and more desirable given India's stated intention to become a secular nation. Such a code will eliminate disparities in marital rules, streamline the Indian legal system, and strengthen social cohesion in India. The requirement for an uniform civil code effectively entails combining all of these
personal values into a single set of secular rules that will apply to all Indians, regardless of
religion affiliation.
UPCOMING CHALLENGES FOR UCC IN INDIA
1. India features a unique combination and fusion of codified personal laws of Hindus,
Christians, Parsis, and, to a degree, Muslim laws.
However, there is no one legislation of
legislature that has a consistent family law that is acknowledged by all religious groups
and communities in India. A single system of personal laws would not be acceptable to
all groups and cultures. Different philosophies are at the root of different religious groups'
foundations and origins.
2. In India, personal laws discriminate against women in all groups. While the Shah Bano
controversy centred on Muslim personal law, Hindu women have faced a variety of issues
under Hindu personal law, as well as in other legal systems. For example, Muslim law
recognises paternity and consequently the validity of the child, but other cultures do not.
Divorce, marriage, property partition, and remarriage are all areas where there are
inconsistencies. Many feminists in India have focused on the need to change personal law
because of the inequalities that it both enacts and perpetuates. Legislatively, however,
very little progress has been made. The present proposals for a Uniform Civil Code10, as
well as their substance, appear to be an attack on a certain group other than using it as a
tool for gender justice.
3.In the absence of clarity on what all ideas and laws should be made standard, it is likely
that if approved, others will be converted to the dominant religion. A civil war might
erupt throughout the country due to a muddled Uniform Civil Code and
misunderstandings about a secular state. There is a fear of dictatorship on the part of the
majority group toward the minorities.
CONCLUSION
“A country's civil code should be consistent not only in terms of justice, but also in terms of how it accommodates its varied people. You have the same freedom to practise your religion in India as you do to exercise any other right, such as equality or non-discrimination.
India has opted to allow these diverse groups of people to practise their religious traditions under personal law rules in order to accommodate them, yet this has resulted in injustice. Do we, on the other hand, have a more effective negotiation strategy? One possibility, as indicated in the study article, is to adopt the Western secularism paradigm, in which the state does not meddle with religion and there are no personal rules. We must recognise, however, that the realities in India and the majority of Western nations are not comparable, and hence it cannot be implemented since, while Western countries pretend to be secular, they are biased toward Christianity, whereas Middle Eastern countries are not. A global civil law might force individuals into positions they don't want to be in, generating a schism.”
The Indian constitution permits people to practise their religion, and this will continue even after the uniform civil code is enacted, as the uniform civil code will not take away anyone's right to practise or profess their faith. It is past time for Indians to see law and religion as separate ideas, and having a consistent civil code will ensure that all individuals are empowered equally.”
REFERENCES
1. CHALLENGES FACED BY ENDEAVOURS TO ACHIEVE UNIFORM CIVIL CODE
https://www.legalserviceindia.com/legal/article-91-challenges-faced-by-endeavours-to-ac
hieve-uniform-civil-code.html
2. UNIFORM CIVIL CODE IN INDIA https://www.crpc.in/images/uniform-civil-code.pdf
3. IMPLEMENTATION OF UNIFORM CIVIL CODE IN INDIA
https://www.legalserviceindia.com/legal/article-4743-implementation-of-uniform-civil-co
de-in-india.html
4. https://www.business-standard.com/about/what-is-uniform-civil-code
WHAT IS UNIFORM CIVIL CODE?
5. A CONTEMPORARY STUDY ON THE UNIFORM CIVIL CODE
https://acadpubl.eu/hub/2018-120-5/4/383.pdf
6. UNIFORM CIVIL CODE IN INDIA: AN ANALYSIS
https://jcil.lsyndicate.com/wp-content/uploads/2016/11/Tanushree.pdf
This article is written by Riddhima Singh of Indian Institute Of Management, Rohtak.