Uniform Civil Code – A Conundrum

This Research Paper is written by Dipali Jagannath Nikam, a Fourth Year BLS. LL.B (Hons.) Student at Rizvi Law College, Mumbai University.

Abstract

Uniform Civil Code has been an ongoing debate in India for almost two centuries now. From the imposition of Lex Loci Act of 1850 ⁽¹⁾ by Lord William Bentinck, an introduction to the early UCC to India against the consensus of its citizens to being a part of the party manifesto of the current government who have been trying to implement it for some time now, the UCC progress chart is the mirror image of our ECG report.

Article 44 of The Constitution of India 1949 states that “The state shall endeavor to secure for all citizens a Uniform Civil Code throughout the territory of India” but alas in the last 71 years, the only endeavor ever happened is the alarming rates of the amendment ⁽²⁾ made to the constitution for every problem rather than implementing it and make it uniform for all its citizen. The previous few governments went a step ahead to make amendments to even nullify the Supreme Court judgments which left UCC to be a mere blank board in a school with students to scribble at and erase in the name of Personal Laws.

From many notable cases getting justified then nullified and re-justified, UCC has seen its share of pulling and prickling in various stages of its existence. But now this school is getting a makeover and a time may come soon when the law will be equal to all, irrespective of caste, creed, or religion. Yet such comforting thoughts bring forth questions associated with it which made the previous governments hesitant to implement it completely. In a country so diverse in religion and faith can one law bring justice towards all? Can such law become a torchbearer to its citizens or will it remain a thorn for some to trample with and others to be in pain?

History and Introduction of the law

Prior to the glorious for some and bitter for others – British Rule, the East India Company ruled India in the name of trade and then in the name of progress for more than a hundred years. There have been numerous skirmishes around the country during the period but it was the revolt of 1857 that led to the end of company rule and the beginning of British Raj in India. If one looks up at the articles on the rebellion ⁽³⁾ they may find that apart from political, economic, and military issues one another factor that led to the revolt was social and religious. And the central core of social and religious issues was the introduction of the Uniform Civil Code in India. But before we go in detail let us see how this law originated.

The origin of the idea can be dated back to 1835 when a report was submitted by the British Government which stated a need for uniformity in Indian Law ⁽⁴⁾. Though the report suggested that the personal laws of Hindus and Muslims are kept outside of the formation but certain factors interfered with the religious practice as the company tried to bring reform to the social and religious customs.⁽¹⁾Though these reforms benefited the society as a whole certain elite section of the people felt an encroachment of foreign laws to their sacred faith and customs and it became one of the reasons for the revolt.

The British Raj knowing very well their previous mistake was very careful during their rule and though the rule decreed uniformity they never tried to step in to clear the muddle of religious norms or practices and maintained a distance in the edifices of personal laws and beliefs. To make their work easier they made two divisions to the law. The public laws got governed by the British and Anglo-Indian law which included Crime, Laws of Contract, Evidence, and Land Relations, which applied to all the citizens equally, and irrespective of their religion and Personal Laws involved inheritance, marriage, succession, and religious ceremonies. ⁽¹⁾

UCC’s Fate in Pre-Independence and Post-Independence

Pre-Independence

A country that is so diverse in language, faith, religion, and its practice, it was not just difficult but an inhuman task in that era to implement a singular law for everyone. And to make it worse, the British Raj which had seen unity in the revolt of 1857 put more effort into divide and rule tactics rather than uniting everyone under one law and rule. But everything wasn’t bad as it seemed, it was during the company rule we got the Bengal Sati Regulation of 1829, which made the Sati practice illegal and Hindu Widow Remarriage Act, 1856 which allowed the widows to remarry. Later during the British Raj, we got the Married Women’s Property Act of 1923 which gave the Hindu women the right to property, and the Hindu Inheritance(Removal of Disabilities) Act 1928 ⁽¹⁾.

During the Vedic Times (ancient age) women had equal rights as men in our country and used to study in school and had the right to choose their own husband or even govern a kingdom but it slowly started shifting and by the beginning of medieval age discrimination creped in.⁽⁵⁾ Women in this age were considered weaker gender and a lot of restrictions were placed in their religious practices. By the end of the medieval period and the Mughal Period, the only thing that remained common in our country is the cruelty and inequality towards women. The society itself became patriarchal and women were only looked as property and the custom that governed them was also molded according to the patriarchal need. It was the British Rule that brought a new age to the country where women were evaluated to better standards and were given if not an equal but a stand of existence itself in a patriarchal society.

Though it was not just the British who have been forefront in bringing out such regulations or acts; it was also a collective effort of many Social Reformers like Raja Ram Mohan Roy, Ishwar Chandra Vidyasagar, B. R. Ambedkar, Manockjee Cursetjee, Jyotirao Govindrao Phule, Behramji Malabari ⁽⁶⁾ and others who stood against these customs and had been vocal against child marriage, Sati Pratha, female infanticide and women rights. Apart from them, there were many women reformers and unsung heroes like Savitribai Jyotirao Phule, Tarabai Shinde, Pandita Ramabai, Kadambini Ganguly, Bhikhaji Rustom Cama, Kamini Roy, Cornelia Sorabji, Kasturba Mohandas Gandhi, Sarla Devi Chaudhurani ⁽⁷⁾ who educated the society and fought against the atrocities on women.

One of the major reforms of that age was the Hindu Women’s Right to Property Act of 1937, famously known as Deshmukh Bill. It not only gave Hindu women the right to the property of their parents but it also led to the creation of the B.N Rau Committee which was tasked with forming common Hindu Laws for unification.

The codifying was difficult as the interpretation was based on ancient texts or Dharmshastra named Manusmriti which was a theoretical reflection upon practical law but not the law itself ⁽⁸⁾. The other difficulty was that the ancient text was related to Hindus but the unification included Hindu, Buddhist, Jains, Sikhs, and Parsees. The committee concluded after much deliberation that there is a need for a Uniform Civil Code to give equal rights to the women and also set up a Hindu Law in accordance with the scriptures. They also reviewed the 1937 act and recommended a civil code for marriage as till then Hindus used to marry under the personal law or under the Special Marriage Act 1923. A uniformity in law began to take place slowly and the idea of UCC wasn’t looked upon as foreign as it felt initially among Hindus.

The only law that remained mostly unchanged during pre-colonial and colonial times was Muslim Law or Sharia. British India in the late 18^th century under Warren Hastings commissioned a translation of Al Hidayah (Hanafi Fiqh) and started passing verdicts in the name of Islamic Law based on Sharia and common law doctrines. This helped in elimination and a need to rely on the local ulema whom they did not trust ⁽⁹⁾.

By the late 19^th century the British formed Anglo-Muhammad Law which prohibited Child Marriage and Capital Punishment and also the abolition of Slavery. The sharia rules were retained in family laws and property disputes or transactions but the criminal laws and other aspects of the legal system were governed by British Law.

The Muslim Personal law was not enforced as strictly as the Hindu Law and its application at lower courts were severely restricted. Due to the constant pressure from the Muslim Elites, the Shariat Law of 1937 was passed which intoned that the Islamic Law of Marriage, Divorce, Maintenance, Inheritance, Adoption, and Succession will be applicable to all Indian Muslims ⁽¹⁾.

Post-Independence

The British left India in 1947 in two divisions – India and Pakistan, but the divisions were not just between regions but also between the people living in the region. The Hindus living on the other side of the border became citizens of Pakistan and were considered Minority and similarly the Muslims living in our country became a Minority. The only difference between them was that one was reduced to be a stone to trample under the foot and the other was evaluated and celebrated and became part of the country and its people.

The dominion of India came to be known as the Republic of India and we got a constitution in the year 1950, which became the supreme law of India. Pandit Jawahar Lal Nehru became the first Prime Minister and served in the position for seventeen long years. He tried to bring back the Hindu Code Bill which was pending for a long time but was not supported by the President and other members who felt that instead of a separate Hindu Law, India should focus on Uniform law for all its citizens. Nehru fearing the backlash from the Minority committee didn’t support the bill due to which a lesser version of the Hindu bill was passed in 1956 in four separate acts form, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act, and Adoptions and Maintenance Act. It was also decided during this time to add a phrase of UCC in Article 44 specifying “The State shall endeavor to secure its citizen a uniform civil code throughout the territory of India”.

The Hindu bill could not control the gender discrimination in the country because the initiation of these was left to Men. Also as it applied only to Hindus women, other communities remained helpless. Though Nehru wanted the Uniform Civil Code to be applied to the country as a whole but did not want it to be forced upon any and each government after he followed his footsteps until this current age.

The Special Marriage Act of 1954 remained the only law to be passed for everyone in this period and it showed how further we were looking at the UCC. On the other hand, fearing backlash from minority there were no reforms done to the Muslim personal law till 1985.

The case of Shah Bano in 1985 became the cornerstone of the debate of having a Uniform Civil Code in the country irrespective of the religion. Shah Bano, a seventy-three old woman was divorced by Muhammad Ahmad Khan, her husband after forty years of marriage by triple talaq – Just by saying I divorce you three times. The local court gave a verdict on her behalf which was challenged by Khan, a lawyer himself who took the case further to the Supreme Court saying that he has fulfilled all obligations under Islamic Law. The Supreme Court ruled in favor of Shah Bano under section 125 of the All India Criminal Code which applied to all citizens irrespective of religion. ⁽¹⁾

The Supreme Court of India further recommended setting up a Uniform Civil Code to avoid such incidents occurring under the name of personal law. The case became a much-debated debated issue of the year with the minorities feeling that under such pretext Hindu values will be imposed on every Indian which included them. The All India Muslim Board defended the application and supported the Sharia Law and accused the government of siding with and promoting Hindu dominance on all citizens.

The government who had supported the Supreme Court decision reversed their stand and passed a bill – The Muslim Women (Protection of Rights on Divorce) Act 1986 which concluded that till the period of Iddah (a period Muslim women must observe after the death of the husband or after a divorce) the women are entitled to get the maintenance from the husband and the same will be accordance to the Sharia ⁽¹⁾. The politicization of the issue led to the argument between two parties, the congress and Muslim conservatives versus Hindus, Sikhs, Jains, Buddhists, Parsis, and the Left.

After this incident, there have been numerous issues that led to the assertion from the Supreme Court in India in 2015 that the country needs a uniform civil code badly otherwise every religion will say it has a right to decide various issues in the name of personal law. ⁽¹⁾

The Sangh Parivar and Bharatiya Janata Party, the current government in their election manifesto had declared on the imposition of the Uniform Civil Code and we await the day for its inception

Goa Civil Code

The Goa Civil Code or Goa Family Law is a set of civil laws that is similar to the Uniform Civil Code and is the only state in India to be given an exception for that rule. It is the only state to have one law irrespective of religion, ethnicity, and language and can be used as a model to implement the UCC. ⁽¹⁰⁾

Pros and Cons of Uniform Civil Code

Pros

The implementation of the uniform civil code will provide equal status to all its citizens irrespective of religion, caste, gender, etc. Most of the personal laws are discriminatory towards women and are patriarchal in origin. The initiation of UCC will give equality to everyone. Most of the youths today are educated and are the cornerstone of society and would take the country forward among other nations. A law that dates back centuries and is discriminated against based on religion will only affect their progress and the progress of the nation. A single law will help in getting proper justice and may not be called biased on the basis of personal law. There will also be no scope of politicization in the name of religion and its law and no special privileges will be given to a single community and all will be equal before the law. A cultural harmony could be established if a single law prevailed. There would not be a need to make reforms after reforms if a uniform law is applied in the country. ⁽¹¹⁾

Cons

The most difficult part is the implementation of the law without hurting religious sentiments and practice. India being a diverse nation each region, religion, and caste has separate faith and practices, and to include the best and remove the worst out of it and make one law is practically very difficult to achieve. Most of the community will perceive the implementation as an encroachment in their personal faith and religious freedom. The law should borrow aspects from different religions and its imposition should be gradual, making changes in one law after another and not all of it together. The government should take care of all its citizens and should be unbiased and sensitive at its approach and should include forums and laws of both communities. The current situation is not suitable with the minority already believing the current government to be sided with the majority, any new implementation will be looked upon as encroachment and will leave the minority insecure and vulnerable. ⁽¹¹⁾

Conclusion

Implementation of the Uniform Civil Code is not an easy task and care must be given to preserving the rich heritage of the country which includes personal faith and religion. Before the implementation of this law, each community must present and reform their current personal law which will help in incorporating those in the UCC. The current institutions must look forward to the singular law and be ready to accept the changes and hurdles it brings in their daily life. Once it becomes a part of you then it would not remain a hurdle for you. Efforts should be taken towards women empowerment in all religions irrespective of being in majority or minority. The codification may not be equal to all in every aspect but it should be made such a way that it will be better for all. And above all, the implementation should not be rushed otherwise it may turn out to be disastrous and may lead to communal violence. Such a thing should be avoided at any cost else UCC will remain just in the pages of the constitution and a conundrum in the heart of its citizens. ⁽¹¹⁾

References