Uniform Civil Code resonates with one country one rule, to be applied to all religious communities. The term, ‘Uniform Civil Code’ is explicitly mentioned in Part IV of the Indian Constitution i.e. Directive Principles of State Policy under Article 44. It states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
A Uniform Civil Code generally refers, all sections of the society irrespective of their religion shall be treated equally according to a uniform civil code, which shall be applicable to all uniformly.
The common areas that stand covered by a civil code include:
Rights related to:
1. Acquisition and administration of property,
5. Succession, etc.
OBJECTIVE OF UNIFORM CIVIL CODE
The objective of Article 44 of the Directive Principles in the Indian Constitution was to address the discrimination against vulnerable groups and harmonise diverse cultural groups across the country.
Dr. B R Ambedkar, while formulating the Constitution had said that a UCC is desirable but for the moment it should remain voluntary, and thus the Article 35 of the draft Constitution was added as a part of the Directive Principles of the State Policy in Part IV of the Constitution of India as Article 44.
UNIFORM CIVIL LAWS IN INDIA
There are presently few civil laws in India, which are applicable to every citizen irrespective of his/ her religion or sect.
1. Indian Succession Act, 1925
2. The Guardians and Wards Act, 1890
3. Special Marriage Act 1954, etc.
Thus, it is not completely true that India lacks 'uniformity' of civil law.
The Indian Courts have at various instances, mentioned about the need of a uniform civil code. These instances include:
In the case of Mohd. Ahmed Khan vs Shah Bano Begum 1985 AIR 945 a 73-year-old woman called Shah Bano was divorced by her husband using triple talaq (saying “I divorce thee” three times) and was denied maintenance. She approached the courts and the District Court and the High Court ruled in her favour. This led to her husband appealing to the Supreme Court saying that he had fulfilled all his obligations under Islamic law.
The Supreme Court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. Further, It recommended that a uniform civil code be set up.
In the case of Daniel Latifi vs Union of India AIR 2001 SC 3262, the Muslim Women’s Act (MWA) was challenged on the grounds that it violated the right to equality under Articles 14 & 15 as well as the right to life under Article 21.
The Supreme Court while holding the law as constitutional, harmonised it with Section 125 of Code of Criminal Procedure, 1973 and held that the amount received by a wife during iddat period should be large enough to maintain her during iddat as well as provide for her future. Thus, under the law of the land, a divorced Muslim woman is entitled to the provision of maintenance for a lifetime or until she is remarried.
In the case of Sarla Mudgal vs Union Of India (1995) 3 SCC 635 the question was whether a Hindu husband married under the Hindu law, by embracing Islam, can solemnise a second marriage.
In the case of John Vallamattom vs Union of India AIR 2003 SC 2902, a priest from Kerala, John Vallamattom challenged the Constitutional validity of Section 118 of the Indian Succession Act, which is applicable for non-Hindus in India. Mr Vallamatton contended that Section 118 of the act was discriminatory against Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purposes by will. The bench struck down the section as unconstitutional.
The first step taken towards Uniform Civil Code was compulsorily registration of marriage. In Seema vs Ashwani Kumar AIR 2006 SC 1158, Supreme Court held that all marriages, irrespective of their religion are compulsorily registered.
The benefits of this ruling are as follows:
1. prevent child marriage;
2. check bigamy and polygamy;
3. help women to exercise their rights under marriage-maintenance-custody of children;
4. enable widows to claim maintenance; and
5. deter husbands from deserting their wives.
POSITIVE SECULARISM and UCC
In India, there exists a concept of “positive secularism”. The onus lies with the state to ensure that religion is not an impediment to the overall progress of the nation.
Articles 25 and 26 which are Fundamental Rights under Part III of the Indian Constitution, uphold the rights of people to practice, profess and propagate the religion. The common confusion is, does Article 44 clashes with Article 25 and 26, as the former demands a uniform civil law, while latter grants right to religion and religious affairs. At this juncture it needs to be understood that "right to religion" does not actually governs the "relation between people". 'Law' is to govern the relations between people. If A marries B, the age of parties, their free consent, the process of registration of marriage are all governed by law. If A dies, his property is inherited by his son through the process of law, though it may carry some ingredients of religion.
Therefore, activities which establish relationship between people are governed by law and not religion. Hence, Articles 25 and 26 are confined to religions practices otherthan which establish relation between parties.
Thus, the UCC is not opposed to secularism and will not violate Article 25, 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society.
Marriage, succession and like matters are of secular nature and, therefore, the law can regulate them.
COMMON CIVIL CODE VS UNIFORM CIVIL CODE
It can be said that there exists a Uniform Criminal Law in India, for example Indian Penal Code, 1860, Code of Criminal Procedure, 1973, etc. But Entry 1 of List III (Concurrent List), VII Schedule, Indian Constitution reads:
1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.
The States by virtue of Entry 1, List III, are empowered to make Criminal Laws for themselves. The States are also empowered to make amendments in the criminal laws made by the Union Parliament. States have therefore used this power at many instances to make penal laws for their respective territories including UPCOCA for Uttar Pradesh, MCOCA for Maharashtra etc. They have also made many State amendments to Union made Law i.e. Code of Criminal Procedure, 1973 according to their needs and requirements like the allowing of Anticipatory bail at few States, while disallowing in some other States.
Also, there are several parts of the northeast and in the tribal belts where the IPC (Indian Penal Code) and CrPC (Code of Criminal Procedure) does not apply.
Thus, in true sense, the fact that there is Uniform Criminal law in India is not completely correct.
Similarly, if there was to be "One" Uniform Civil Code for the whole Country, the subjects relating to the Civil relations, must have been a part of Union List i.e. List I, VII Schedule, Indian Constitution, but on the contrary the subjects are again a part of the Concurrent List.
Entry 5, List III (Concurrent List), VII Schedule, Indian Constitution reads:
5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.
Therefore, some legal experts are of the opinion that there must exist a common civil code considering each religion or its sect as a class in itself.
Thus, a law must be made for each class which would not be violative of Article 14 of the Constitution and would accomplish the Constitutional mandate of uniformity of law and would also embrace the Indian diversity.
LAW COMMISSION: UCC "neither necessary nor desirable"
The Law Commission of India headed by Justice B.S. Chauhan has opined that a Uniform Civil Code (UCC) is not required to reconcile conflicts in personal/family laws with the Indian Constitution.
In the end it needs to be understood that Directive Principles though not enforceable are nonetheless fundamental in the governance of the nation. Implementation of the Directives is a Constitutional mandate, but on the other hand Directive Principles being social and economic rights in the Constitutional structure requires social and economic conditions for their fulfilment. Also, there are many civil statutes of secular nature already existing like the INDIAN SUCCESSION ACT 1925, Guardians and Wards Act, 1890, Child Marriage Restraint Act, 1929 and many more which highlight the uniformity in civil laws. Thus, the broader perspective of a welfare state must be looked at while implementing the Directive Principles.