PERSONAL LAWS AND UCC: SCOPE FOR HARMONY
By Sourodip Nandy
Uniform Civil Code advocates uniform or equal application of personal laws irrespective of religious differences. The equal application would ensure lesser inconsistencies in decisions and prevent differences arising out of different religious codes for different religions. It would streamline the process of decision making by the courts and ensure proper judgments as the religious differences would be eliminated. The concept of civil codes has been applied in India since the colonial times by the different European powers that ruled several parts of the country. The Portuguese Civil Code of 1867 was continued in Goa after its liberation, and it should be the model for other states. The progressive law provides for equal division of income and property regardless of gender between husband and wife and between children. It is also applicable in the Union Territories of Dadra and Nagar Haveli and Daman and Diu. In Article 44, our Constitution clearly specifies the UCC in the following words: “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. The Constitution is quite clear about the fact that unless a UCC is followed, integration cannot be achieved. Under the Preamble to the Constitution, the people of India having solemnly resolved to secure to its citizens social, economic and political justice, equality of status and opportunity and to promote fraternity, assuring the dignity of the individual and unity and integrity of the nation.
Article 14 guarantees equality before the law and the equal protection of the law.
Article 15 provides that the State shall not discriminate against any citizen on grounds of religion, caste, sex, etc.
The fact that even after 72 years of independence, we are still struggling to fight for gender discrimination, is indeed disheartening. Implementing uniform civil code across the nation will enable to abolish gender discrimination from the nation. For example, according to various religions, inheritance, marriages are male-dominated. Supreme Court in different judgments has stated that Muslim women were subjected to gender discrimination because of arbitrary divorces and second marriages.
There have been cases where Muslim men have come to such a stage of harassment that they were giving divorce to their wife’s through WhatsApp messages by sending three times ‘talak talak talak…’. Fortunately, in Saira Banu v. Union of India, Supreme court has declared instant talaq to be unconstitutional, which has given some relief to Muslim women.
Constituent Assembly Debates
The Constituent Assembly debates clearly indicate that some of the members like K.M Munshi, Alladi Krishnaswamy Aiyer and the Father of the Indian Constitution, B.R Ambedkar strongly advocated for the implementation of the Uniform Civil Code. K.M Munshi believed the force of secularism should supersede individualism. He states:
“It is not therefore correct to say that such an act is the tyranny of the majority. If you will look at the countries in Europe which have a Civil Code, everyone who goes there from any part of the world and every minority has to submit to the Civil Code. It is not felt to be tyrannical to the minority. The point, however, is this, whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular. We want to divorce religion from personal law, from what may be called social relations or from the rights of parties about inheritance or succession. What have these things got to do with religion I really fail to understand. ” Thus, K.M Munshi was in favor of encroaching upon diversity and the freedom afforded to the personal laws in order to ensure long term reform of society and equity among citizens of different sects in the society.
Alladi Krishnaswamy Aiyer was of the view that communities are not bound by watertight restrictions and do not remain aloof of each other. In fact, personal laws are heavily influenced by each other and there is an interaction between different communities even between different religions. If we were to have different personal laws driven by diverse religious beliefs having multiple interpretations, it would limit the scope for reform. To have some older implemented laws to keep up with the changing times, it is necessary to bring reforms to keep it in sync with modern times. For example, the move to ban beef in Uttar Pradesh was met with relatively moderate opposition as it was an important part of Muslim custom to consume beef. However, the same move was met with severe opposition in Kerala where the majority Christian population opposed the move as it was an integral part of their custom. However, some personal laws had become archaic and there is no scope for reforming them as such reform would invariably be faced with opposition. Such a problem would not arise with the implementation of UCC as everyone would have to abide by the provisions of the legislation. Hence, India should adopt UCC to help in smoother reforms and ensure equality of treatment to people belonging to different faiths.
B.R Ambedkar was a staunch supporter of the Uniform Civil Code. He was in favor of using western legislations and modifying them to suit the Indian setup. Ambedkar did not approve of the opinion that UCC could not be applied to the whole of India as its vastness and diversity would simply render such an exercise impossible and futile. He believed that if various regional laws existing in different parts of the country could be brought into harmony by creating umbrella legislation, it would ensure uniform application of laws on all people in the same manner. He also said: “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequities, discriminations and other things which conflict with our fundamental rights.” These practical words are of great significance to the Indian society today.
Shah Bano Case
In the famous Shah Bano case, the Court ruled in favor of the plaintiff who sought maintenance after her husband divorced her under Muslim law. She claimed relief under Section 125 of the Code of Criminal Procedure. The then Chief Justice, Y.V. Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. The Court directed Parliament to frame a Uniform Civil Code.
Sarla Mudgal Case
In the Sarla Mudgal v. Union of India (1995) case, a Hindu husband married under Hindu law embraced Islam and solemnized the second marriage. He tried to use religion as an alternative to counter laws and to escape the consequences of bigamy. Acts like this are clearly a mockery of religion and instigate hatred between people of two different religion against their laws. The Supreme Court had observed: “Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said, ‘I do not think that at the present moment the time is ripe in India for me to try to push it through’. It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80 percent 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 Uniform Civil Code for all citizens.”
John Vallamattom case
In John Vallamattom v. Union of India case in 2003, Chief Justice V.N. Khare had observed: “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country.”
In Public Interest Litigation, the Supreme Court was invited to declare certain aspects of Muslim Personal Law as void, e.g., polygamy, etc., as being void under Article 14 and 15. But the court refused to do so saying that the issue raised were fit to be dealt with by the legislatures and not the Courts.
Even though our country has diverse culture, the formation of a Uniform Civil Code will certainly boost the national integrity. A unified personal law irrespective of gender, caste, and creed will create a feeling of unity among citizens.
Cornerstone of Secularism
The idea and principle of having a uniform civil code, governing personal laws are to treat every person equally and so that just, fair and predictable laws protect everyone. Moreover, a uniform civil code would put in place a set of laws that would govern personal matters of all citizens irrespective of religion, which is the cornerstone of secularism.
It will help in putting an end to gender discrimination, strengthen the secularism in India and will promote unity among citizens. From Shah Bano to Shayara Bano who recently filed a PIL in the Supreme Court the emphasis has always been on gender friendly reforms of personal laws.
The proposed method to enact UCC
The Supreme Court has emphasized that steps be initiated to enact a uniform civil code as envisaged by Article 44. In Ms. Jorden Diengdeh v. S.S. Chopra, “… the law relating to judicial separation, divorce and nullity are far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste… we suggest that the time has come for the intervention of legislature in these matters to provide for a uniform code of marriage and divorce …”
In another important case, Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court has ruled that a Muslim husband is liable to pay maintenance to the divorced wife beyond the iddat period. The court has regretted that Article 44 has remained a “dead letter” as there is “no evidence of any official activity for framing a common civil court for the country”. The court has emphasized: “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”.
Article 44 is based on the concept that there is no relation between religion and Personal laws in a civilized society. The common civil code will help the cause of national integration by removing the contradictions based on the ideologies.
The suggestion given by the Former Supreme Court Judge P.B Samant appears viable in this regard.
He said: “The pro-Hindu Rashtra group is pressing for a uniform civil code mainly to scrap the four-wife entitlement of a Muslim man, as they believe it increases the population. They’re not even talking about the oral talaq, which also should be abolished.” When asked, “Can other states have a Uniform Civil Code?” He said: All religions must sit together and pick the best elements from each of their personal laws to form a Uniform Civil Code.
The Constituent Assembly Debates on Article 44 indicate that concerns were raised on behalf of the representatives of the Muslim community among other minorities that any attempt to create a Uniform Civil Code would end up enforcing a Hindu Code on the entire population. Responding to these concerns, Dr. B.R. Ambedkar, clarified that Article 44 should not be taken to suggest that a Uniform Civil Code would be made enforceable immediately and that any attempt to create such a code would be contingent on the views of the minorities. Article 44 in its present form was adopted solely on the basis of this promise.
The court in Narasu Appa Mali reasoned, there is no obligation on the State under Article 44 to carry out reforms at one go. It is well accepted that reforms in the sphere of personal law have to be carried out in accordance with the sentiments of the community and also keeping in mind how receptive each community is likely to be, to such reforms. This demands that the pace and spread-out of reforms itself be treated as a matter of State policy. The State should hence be given leeway to decide how and when to carry out the reforms along the lines of the grand dream embodied in Article 44.