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Upon the announcement of the special five-day session of the Parliament commencing on September 18, speculations were rife if it could be about the Uniform Civil Code (UCC). Our Prime Minister has also emphasized the need to move away from a dual legal system based on “separate laws for separate communities” and said that the country cannot run on it.
A demand for UCC stems from its mention in the Constitution’s Directive Principle and this demand has been gaining some momentum in the last few years.
Framers of the Constitution, being unable to resolve the conundrum UCC poses, included it in the Directive Principles of State Policy (DPSP) rather than the Fundamental Rights. This conundrum remains unresolved as supporters of the UCC argue that it fosters national integration and gender equality concerns, and those against it argue that its enforcement may infringe upon the rights and distinct practices of communities.
Lawbeat reached out to Lawyers from Uttar Pradesh for their views on the "Implementation of Uniform Civil Code (UCC) in India". Here are their insights:
Advocate Siddharth Khare, while discussing the limitations on the right to freedom of religion in India, explored the possibility of implementing a Uniform Civil Code through comprehensive consultations on personal laws for various communities. He said,
"Right to freedom of religion as guaranteed by Art 25 is subject to public order, morality and health and all other provisions of Part III. It is not an absolute right. Article 44 of the Constitution provides that the Indian state shall endeavor to secure to all citizens a Uniform Civil Code. In my opinion, it can be enacted provided wide consultations are held on all issues around personal laws as applicable to different communities as on date."
Advocate Abhinav Bhattacharya highlighted the distinction between Article 25's guarantee of religious freedom and Article 44's aim to separate religion from civil law while emphasizing the need for a common civil code to promote national unity and integration. He opined,
"Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character should not be ideally brought within the guarantee enshrined under Articles 25, 26 and 27. The personal laws of all religions, such as those relating to marriage, succession, and the like have all a sacramental origin, however it is imperative that the citizens of our country belonging to different religions should forsake their sentiments in the cause of the national unity and integration as the Constitution enjoins the establishment of a 'common civil code' for the whole of India."
Advocate Pushpila Bisht emphasized the dynamic nature of Indian society and the importance of implementing a UCC to promote equality, particularly in areas like adoption, marriage, and inheritance, while acknowledging the challenges of acceptance and potential impact on religious autonomy. Adv Bisht said,
"India is a growing economy and is dynamic in its nature, therefore, the society is growing not only economically but also socially, legally, religiously and is in fact diversifying in all aspects. In the present scenario Uniform Civil Code or as we call it 'UCC' has been surrounded by debates and discussions regarding its implementation and its importance in Bharat. When one talks about Uniform Civil Code, we directly associate ourselves to the term ‘Uniform’ which can have a literal interpretation to mean the same in all cases or at all times therefore in a layman's language it can be construed as ‘equality’. The Directive Principle of State Policy are fundamental guideline to be followed by the State for proper functioning and governance and Article 44 of the Constitution of India provides for a Uniform Civil Code. It in fact states that the State shall endeavor to secure a Uniform Civil Code for its citizens.
In my opinion, the intention behind the implementation of UCC is to bring about equality and to provide equal rights as well as opportunities to males and females with respect to various civil issues like adoption, marriage, inheritance, succession which are a part of humans' everyday lives. Bharat, which is a secular country, is known to be rich in its culture and customs, and in Bharat, it is the personal laws or to say 'customary practices' that govern matters relating to marriage, adoption, inheritance etc.
Bharat’s major religious communities have their own set of religious or customary practices and distinct personal laws and in my opinion, the Uniforms Civil Code is an attempt to give equal rights and opportunities to all and in fact equal protection to all. However, the implementation of a Uniform Civil Code would face major challenges as it would be a hard task to change the thinking of people who have been ardent followers of their personal laws which they have followed since time immemorial, and to pierce it in minds of the people would be a hurdle. The difficulty that UCC would face is the acceptance by people and the implementation of UCC is far-fetched as major communities fear that their religious autonomy would be severely affected. There are many challenges that UCC would face and in my opinion, the implementation of UCC is a progressive step toward achieving social harmony and in fact, is a great step for gender equality, and fairness. The implementation of UCC would Infact be a reflection of Unity in Diversity."
Advocate Kunal Shah delved into the origins and significance of the UCC in India, highlighting its potential to promote national integration, secularism, gender justice, and equality while acknowledging the complexities of implementing it in a culturally diverse society. He said,
"The Uniform Civil Code is a term originating from the concept of a civil law code. It envisions the use of the same set of civil rules to govern individuals regardless of their religion, gender or caste. This subsumes the citizens’ right to be governed by their personal law in matters relating to personal status; marriage, divorce, adoption, inheritance etc. Article 44 of the Constitution of India lays down the administration of a Uniform Civil Code for its citizens as a Directive Principle. India’s colonial era saw adoption of a homogeneous set of laws regulating different aspects of life. Under the Colonial regime, India witnessed codification and universal application of criminal laws. However, the personal laws still continued to govern matters relating to marriage, divorce, children, guardianship, adoption, succession, and property ownership. During the Constituent Assembly debates, Dr. BR Ambedkar, the Constitution's founding father, advocated that UCC be included in Article 35 of the Constitution. Community leaders and Muslim representatives emphasized the need to preserve personal religious laws, citing them as the foundations of religious practices and traditions. Consequently, the concept of UCC came to be embodied in Part IV of the Constitution dealing with Directive Principles of State Policy. The development of a UCC in India has been a source of political contention for more than a century, and the political party in power is currently prioritizing the UCC. Legislative codifications are a good way to describe the foundation and kind of the civilized legal system. The UCC would promote National Integration and Secularism. It would ensure gender justice and equality. It would also lead to simplification and rationalization of personal laws while obliterating the regressive practices. Minorities are concerned that in the name of homogeneity, the majority culture will be imposed on them. Given India's immense cultural diversity, bringing all of these people together will be incredibly challenging."
Moreover, Adv Shah highlighted that similar apprehensions were also flagged during Constituent Assembly debates. He pointed out that Dr. Ambedkar expressed his surprise at such concerns as he said,
“………..We have a uniform civil code of law for almost every aspect of human relationships. We have the Penal Code, 1860 and Criminal Procedure Code. We have the transfer of property which deals with property relations and which is operative throughout the country then we have the Instruments Act: and I can cite innumerable enactments that would prove that this country has practically a civil code, uniform in its content and applicable to the whole country. The only province that has been untouched 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 misplaced for the simple reason that we have, as a matter of fact, covered the 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 of whether we could do it. As I say, we have already done it.”
In Advocate Shan's opinion, in a secular India, a Uniform Civil Code is essential to protect and promote national unity and solidarity among its residents. "It's time to put in some serious work. Inspiration needs to be drawn from a few steadfast laws like the Guardians and Wards Act of 1890, the Indian Succession Act of 1925, and the Child Marriage Restraint Act of 1929 which were promulgated during the British regime in India. Accommodating personal laws of all religions under such a code may be a difficult and time-consuming task, but the legislature must eventually execute this onerous duty of constructing the code," he said.
Advocate Siddharth Shukla underscored the importance of a UCC in ensuring equal status for all citizens citing its potential to reduce discrimination and benefit women's rights, while mentioning the historical perspectives of Dr. BR Ambedkar and judicial endorsements of the UCC. He said,
"A Uniform Civil Code (UCC) will provide equal status to all citizens irrespective of the religion, class, caste, or gender to which they belong. In present day’s contemporary world, equality in the form of UCC has to be given serious consideration. Our Constituent Assembly envisioned the formulation of a UCC but by a 5:4 majority, it was included as a directive principle. It is to be noted that Dr. BR Ambedkar had more of an ambivalent stand on the UCC and was of the opinion that it should be purely voluntary. A uniform code can be framed by collating the best practices of various religions, as this will lead to lesser politicization of issues stemming from discrimination. This will go on to majorly help all women who are aggrieved by patriarchal orthodox views of society. We must remit to the Supreme Court’s views in the landmark Shah Bano Begum judgment of 1985, wherein it had called for the implementation of UCC, and also recently in 2019 in Paulo Coutinho vs. Maria Luiza Valentina Pereira."
This is an ongoing series reflecting on the UCC through the views of persons from the legal industry.
Read Delhi Bar Speaks on UCC here.
Read Delhi Senior Lawyers and Academia Speaks on UCC here
Read Bombay Bar Speaks on UCC here
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