Thursday, 1 June 2017

Shradha Arora

Does India need a Uniform Civil Code?


When we talk about India it’s one of the most diverse nations in the world. The country accommodates in itself people of several language, culture and script. Even with such diverse individuals living in the country, the laws treat all the individuals equally irrespective of the fact whether they belong to one particular religion or caste.  The set of Criminal Laws in India inclusive of the Indian Penal Code and Criminal Procedure Code are applicable to all individuals. However, the same is not the case with respect to marriage, divorce, succession. Even today these matters are dealt by the personal laws of the particular religion. These personal laws are varied in their sources, philosophy and application. Thus, a major constraint arises while bringing people governed by different religions under one roof.
Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” A Uniform Civil Code essentially means a common set of laws governing personal matters for all citizens of the country, irrespective of religion.

*When we look at the debate that whether India should have a Uniform Civil Code or not, the following are the basic considerations. Firstly, “secular” character of India, which has been identified as part of the basic structure of the Constitution. India was declared a secular nation by the 42nd Constitutional Amendment in 1976. Secondly, Article 25, which guarantees the freedom to practise, profess and propagate any religion. As a result of this, and the understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws. There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations  and not tacitly support them by following a practice of non-interference, no matter what. Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice” therefore, it was argued that, Article 25 is no bar to having a Uniform Civil Code.
In today’s era of growing education, modernisation, globalistaion, economic and social mobility, unknown and earlier socially prohibited relationships (eg, inter-caste, inter-regional, inter-community marriages and divorce and the acquisition and disposal of self-acquired property by women) have become very common circumstances. The problem that the country is now facing is that the  traditional personal codes do not accommodate emerging multicultural realities and aspirations. On the other hand, suppressing them could engender violence or deviant behaviour, undermining public order. Moreover, these personal laws have been challenged in the Supreme Court various times in the Supreme Court on the ground that they abridge the fundamental right of Equality guaranteed to the people of the country under Article 14 of the Constitution of India.
The Supreme Court of India has various times, in various cases felt the need for a Uniform Civil Code and asked the legislature to prepare the same.  In the case of Md. Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case. , a Muslim women claimed for maintenance form her husband under S.125 of Cr.P.C. after she was given triple talaq pronouncements by her husband. The Supreme Court held that Muslim Women have a right to get maintenance from her husband under s.125 and commented that Art.44(3) of the Constitution of India has remained in the dead light. However, the then Rajiv Gandhi led government has overturned the Shah Bano case decision by Muslim Women (Right to Protection on Divorce) Act, 1890 which curtailed the right to maintenance of a Muslim Woman.
The Second instance was in the case of Sarla Mudgal v. Union of India, where the question of whether a Hindu husband by embracing Islam can solemnise a second marriage. The court held that this would amount to nothing but merely abusing the personal laws. It was held that a Hindu marriage can be dissolved under the Hindu Marriage Act, 1955 only and by converting into Islam and marrying again does not dissolve the marriage under Hindu Marriage Law and thus, it would be an offence under S.494(5) of The Indian Penal Code, 1860. The judge in this case opined that it is high time that a uniform civil code be introduced and that Art.44 be taken out of cold-storage.
He commented that, “Where more than 80% of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘uniform civil code’ for all the citizens in the territory of India.”
Another landmark judgement called for the implementation of Uniform Civil Code. In this case, a priest from Kerala, challenged the Constitutional validity of S.118 of the Indian Succession Act, which is applicable for non-Hindus on India. Mr. John Vallamatton, contended that S.118 of the said act was discriminatory against the 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.  It called for the parliament to take concrete steps to enact a Uniform Civil Code. It was stated that a common civil code will help the cause of national integration by removing the contradictions based on ideologies.

The above case laws make it clear that India needs a Uniform Civil Code to avoid such problems.