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The Uniform Civil Code has been a contentious issue for India for ever since the Constitution was being framed and Constituent Assembly debates were being facilitated.
The 22nd Law Commission of India solicited views and ideas of the general public and recognised religious organisations about the Uniform Civil Code [UCC] in a recent public notice. In August 2018, the 21st Law Commission released a Consultation Paper on Reform of Family Law. It stated that "the issue of uniform civil code is vast, and its potential repercussions untested, in India" based on research and expert consultation.
Lawbeat reached out to a cross-section of Lawyers and Law Professors from Delhi for their views on the "Implementation of Uniform Civil Code (UCC) in India". (Senior Lawyers and those from the academia in Delhi have spoken for the segment here).
Advocate Ashwini Kumar Upadhyay has pointed out that the day a draft of the ‘Indian Civil Code’ is created and made public, and the general public, especially sisters and daughters, become aware of its benefits, no one will oppose it.
"In any secular country, there are no separate laws based on religious grounds. However, in our country, the Hindu Marriage Act, Parsi Marriage Act, and Christian Marriage Act are still in effect. Until the Indian Civil Code is implemented, it is an insult to call India a secular country. If a ‘Uniform Civil Code’ can be implemented for all citizens of Goa, then why can’t a ‘Indian Civil Code’ be implemented for all citizens of the country?," said Upadhyay
Upadhyay said that, "The concept of the Uniform Civil Code entails that the minimum age for marriage should be the same for both sons and daughters, rules regarding marriage and divorce should be uniform for everyone, all daughters should have the right to maintenance and alimony, the right to adoption and guardianship should be the same for everyone, and inheritance rights and property rights should be equal for all daughters".
On the minimum age for marriage, grounds for divorce, maintenance allowance, adoption rules, inheritance laws, and property rights, Upadhyay said that they are all related to civil rights and have no connection to religion or religious practices.
"However, even after 74 years of independence, there is still discrimination between men and women based on religion or religious practices. The framers of our constitution envisioned the concept of a 'Uniform Civil Code' through Article 44 so that everyone could have equal rights and equal opportunities, and the unity and integrity of the country would be strengthened," Upadhyay said, adding that "Article 37 clearly states that it is the fundamental duty of the government to implement policy directives. Just as it is the fundamental duty of all citizens to follow the Constitution, it is also the fundamental duty of the government to fully implement the Constitution".
Advocate Mujeeb-ur-Rehman said that India is a multi cultural and multi religious society where people adhere to their religion and traditions and they want to be recognised as they are.
"Indian communities don't want to loose their identity and one yardstick policy for all will definitely ruin the diversity. If I exaggerate, the suppressed communities may emerge as a danger to the national integration. And the other very strong opinion is that there is no need for a common civil code as state can't interfere in personal matters of an individual and doing so is an attack on his liberty and personal choice," he pointed out.
Advocate Deepak Shankhdhar said that the Uniform civil code is a dream come true for the Indian Constitution. "It embodies Equality for all in the Preamble. UCC will bring harmony, prosperity and integrity among people. It will bring a good environment among citizens. UCC will also promote the Gandhi socialism," he said.
Advocate on-record, Dr. Charu Mathur
"UCC is an egalitarian concept and much needed reform. However, the idea should be reform and not mere codification. Assuming that all opposition to UCC is met, yet Constitutional Challenge to implement Uniform Civil Code uniformly all over the country will be a challenge. Family Law is a List III item. Thus, within the power of both State Legislatures and Parliament. Co-operative Federalism demands that the will of State is to be taken into consideration and not merely dominance of Union. India is a diverse State. The Sixth Schedule and Article 244(2) gives constitutional guarantee to protect customary laws of North-Eastern States. Article 244(1) and the Fifth Schedule protects customary rights of tribal communities. Add Article 371 to this which grants special status to various North-Eastern States. Art 371 gives special protection is awarded to customary laws and the tribal councils, which are autonomous bodies empowered to administer civil and criminal laws, as per the customs of the tribe.
The law is uniformly applied to all citizens of India in civil and criminal matters. Progressive statues like DV Act,2005 which applies to all citizens is the need of the hour. Judiciary is to play pro-active role, the recent handbook by the Supreme Court on combating gender stereotype is a welcome step. This shows evolving judicary, a far cry from adverse comment by Justice Katju on second wife in D Velusamy. We need to look at reforms and not mere rhetoric- outlawing polygamy by enacting a UCC. We need to have something that will give equal access to all women. Need of hour is equal laws not necessarily uniform laws"
Advocate Amit Pai
"I don’t think there can be two views on the desirability of a Uniform Civil Code. And that is why it found placed in Part IV of the Constitution. However, if a status quo of several decades is to be altered, it’s quintessential to have a proper dialogue with stake holders, and something as momentous must not be in a hurried manner. Things must not be done for the sake of doing them - and must be done in a well considered manner, after taking the implications on society at large. Otherwise, the already burdened Courts, will further be burdened with legal challenges not envisaged by Parliament or the Government".
Advocate Sandeep Lamba
"It would ensure equality before the law for all Indians, as promised in Article 14 of the Constitution. It eliminates discrimination. It renders gender justice, which is generally denied to them in marriage, divorce, inheritance and adoption laws. It reduces complexities, contradictions and legal ambiguities".
Advocate Ashish Dixit
"The Constitution makes UCC desirable but not mandatory, unlike the other fundamental rights. Article 44 casts onus on State to take steps to implement UCC. In country as diverse as India, it is expedient that exhaustive consultation is undertaken before implementing the directive of UCC. The UCC cannot be straight jacket formula, the Parliament may have to accommodate certain tribes and indigenous group of people owing to Constitutional protection accorded to them".
Advocate Kumar Utkarsh
"UCC is need of the hour and refers to same set of civil laws applicable to all citizens of India in their personal matters such as marriage, divorce, custody, adoption and inheritance. Gender equality: Personal laws, because they derive from tradition and custom, also tend to give undue advantage to men. Law Commission (2018) observes that various aspect of prevailing personal laws disprivilege women.e.g polygamy. There is no consistency in law for issues like marriage, succession etc for different communities. It will promote secularism as a secular country each religion & sect must have equal laws. It will help in simplifying the laws and It would also reduce the burden on the lower judiciary. One third of total nearly 2.50 crore cases pending in the lower courts belongs to such cases of personal laws. It will promote national unity by transcending religious and community division".
Advocate Ravi Singh Chhikara
Uniform Civil Code advocates for uniformity in the personal laws of all religions in India. Although, this idea has come up to bring equality among all citizens, however, it does not carry with itself the very idea on which all religions are based i.e., faith. A religion is in existence only because of the faith that people have in the teachings and commands of their Gods. Just because of that faith only, they follow the norms/rituals/customs/commands mandated by that religion. If these norms/rituals/customs/commands are disturbed, the very sanctity of that thing for which those norms/rituals/customs/commands are being followed will demolish. For example, in Hindus, generally in north India, every wedding includes the wearing of manglasutra, sindoor, circumambulation of sacred fire etc. Therefore, Hindus abstain from taking divorce only because of the reason that they believe that after doing these rituals, their marriage becomes sacred and they get the blessings of their God. However, it is believed that will be cursed if they take divorce. If these norms are disturbed and regulated by government rules, the very sanctity of marriage will get distorted in the minds of Hindus.
So, I propose some factors which should guide the authorities to determine whether any norm/ritual/custom should be regulated or not. The norm/ritual/custom which justifies the following conditions must not be touched at all:
(a) Norm/ritual/custom is integral to the religion
(b) It is not harmful to anyone in any manner
(c) It is necessary to be followed for keeping the integrity and sanctity of the thing for which it is being followed.
For example, the ritual of circumambulating the sacred fire in Hindus is integral for keeping the integrity and sanctity of marriage and is not harmful to anyone in any manner.
Therefore, only those norms/ritual/customs should be regulated which are not integral to religion and which are harmful in the manner that they are taking away some rights from the followers. For example, the norm of not giving inheritance rights to daughters was not integral to Hinduism and was also harmful to females.
Therefore, I believe that Uniform Civil Code should not be brought blindly to all aspects of religions. The personal laws which are in existence to protect the norms/rituals/customs which satisfy the above-mentioned conditions should not be interfered with and the remaining ones should be made uniform.
Advocate Gautam Mishra
The UCC (Uniform Civil Code) debate in Indian politics following the Shah Bano, Daniel Latifi, and Sarla Mudgal cases revolved around the idea of a uniform set of personal laws applicable to all citizens, irrespective of their religious affiliations.
The judgments, namely the Shah Bano case, Daniel Latifi case, and Sarla Mudgal case, all revolve around the Uniform Civil Code (UCC) debate in India. These cases dealt with issues related to personal laws governing marriage, divorce, and inheritance for different religious communities. The common thread among these cases is the tension between religious personal laws and the idea of a uniform civil code that would apply uniformly to all citizens regardless of their religion, providing a common legal framework for personal matters. The debates centered on questions of gender equality, minority rights, and the balance between religious freedom and a uniform legal system.
In the Shah Bano case (1985), the debate centered around the maintenance rights of a Muslim woman after divorce under the Muslim personal law. The case raised questions about gender equality and the application of different rules for different religious communities.
The Daniel Latifi case dealt with the issue of maintenance for a divorced Muslim woman and the interpretation of the term "reside" for the purpose of granting maintenance. The debate here also revolved around the rights of Muslim women and the applicability of Muslim personal laws.
The Sarla Mudgal case focused on the question of whether a Hindu husband, after converting to Islam, can marry again without legally dissolving his first marriage. The case highlighted the complexities and potential conflicts between personal laws of different religions and the need for a uniform legal framework.
Overall, these cases ignited debates about gender justice, the need for a Uniform Civil Code, and the balance between religious freedom and a common legal framework in India.
The common thread in these cases was the question of gender equality and justice in matters related to marriage, divorce, and inheritance. The judgments dealt with issues such as maintenance, alimony, and inheritance rights for women across different religious communities, sparking discussions about the need for a uniform code to ensure equal rights and treatment for all citizens.
Whereas, the Constitution aims to strike a balance between ensuring fundamental rights, including religious freedom, and the broader principles of equality and social justice. However, the debate around a Uniform Civil Code continues to be a complex and evolving issue in Indian politics and society.
This is an ongoing series reflecting on the UCC through views of persons from the legal industry.
Read Delhi Senior Lawyers and Academia Speaks on UCC here
Read Bombay Bar Speaks on UCC here
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