By Kanishka Mishra, University of Delhi.
When Uniform Civil Code will get its flesh and blood, it will be a unified legislation combining personal laws of various communities of India and forming a singular law which would include provisions for marriage, divorce, inheritance, adoption, maintenance, property, succession and so on. As of now, Hindus and Muslims are governed by their respective personal laws, which though have transformed a lot after independence like abrogation of various social evils like sati, child marriage, widow re-marriage and amendment of various regressive provisions including inheritance law, but one can clearly see the backwardness and gender bias intrinsically imbibed in these and justified on the basis of religion. Today in the modern emerging economy, that India is, there is absolutely no place for these.
Since Independence, the question regarding the implementation of Uniform Civil Code has been raised from time to time through a number of debates and discussions; there however, has been no outcome. When the British decided to codify various laws, they were particularly careful to keep the personal laws untouched so as to avoid hurting the sentiments of Hindus, Muslims and other religions.
After India attained Independence, the makers of the Constitution also incorporated Uniform Civil Code under Article 44 which states that, the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Article 44 being a Directive Principle, is not enforceable and acts merely as a guideline for the State to try and implement it when the time and resources permit. In order to achieve the paramount objective of unity and integrity of India, it is necessary to transform the directive principle provided under Article 44 into an enforceable Uniform Civil Code.
Considering the backdrop of Indian independence, the partition brought about a massive agony and insecurity among the members of the two majority communities of India and so the Constitution makers thought that it was essential to let personal laws prevail till India matures as a country.
Dr BR Ambedkar opined during the Constitutional debate-
“We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law to Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are Negotiable Instruments Act : and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it. I think they have read rather too much into Article 35, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary. Parliament may feel the ground by some such method”.
The decision in Ahmed Mohammad Khan v Shah Bano Begum by the Supreme Court was a landmark case for the protection of the women’s right of maintenance also invoked the need for enactment of Uniform Civil Code. In this case, a Muslim woman sought for maintenance under Section 125 of CrPC after the husband dissolved marriage by pronouncing triple Talaq. Justice YV Chandrachud, the then Chief Justice of India, emphasized: “A common Civil Code for the country will help the cause of national integration by removing disparate loyalties to law which has conflicting ideologies ”.
The same view was reflected in Sarla Mudgal v UOI. The whole case can be summarised in the following questions that whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage qua the first wife who continue to be Hindu? Whether the apostate husband would be guilty of the offence under Section 494 of the Indian Penal Code? While deciding the case, the question of freedom of religion under Article 25 was also raised. Justice Kuldip Singh stated that “ Article 44 is based on the concept that there is no necessary relation between religion and personal law in a civilized society. Article 25 guarantees religious freedom, whereas Art. 44 seeks to divest religion from social relations and personal law. Marriage, succession, and like matters of secular character, cannot be brought within the guarantees enshrined under Articles 25, 26 and 27. In this view of the matter, no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throughout the territory of India.” “But in Lily Thomas v. Union of India, Supreme Court of India clarified that any direction for the enforcement of Art. 44 of the Constitution of India could not have been issued by only one of the Judges in Sarla Mudgal’s case.
Secularism is the principle imbibed in the Preamble of the Constitution of India which means that the State holds no religion; also an essential feature of our secularism is that it is positively distanced from each religion and therefore the presence of Personal laws stand in contrast to this basic, and perhaps very essential, feature of the Indian Democracy.
In order to achieve the paramount objective, of unity and integrity, of India, it is necessary to transform the directive principle provided under Article 44 into an enforceable Uniform Civil Code. It is therefore important for us as a country to move ahead with times and give ourselves a uniform, singular law that is alike for all citizens and not just for Hindus or Muslims or Christians.