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"Any attempt to have a uniform civil code must ensure that it is women centric while not being disadvantageous to other genders.”
- Justice Nagarathna, Judge Supreme Court of India
Over 70 years ago, we the people of India, gave ourselves a wonderful constitution - envisioning a sovereign, democratic republic where there would be justice, liberty, equality and fraternity. We secured for ourselves the fundamental rights, constitutional remedies. Other aspirations that could not be achieved immediately because of paucity of resources were placed in Directive Principles of State Policy under Article 44 of the Constitution of India. These were the directions to the Indian States for implementation over a period of time. It stated, “The State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India.”
What is Uniform Civil Code?
It simply means one law for the citizens of whole of India in the matters related to marriage, divorce, adoption, maintenance etc. Simply put, it means that citizens of different religion shall not be guided by their personal laws anymore which are more often than not inspired by their respective religious scripture. In India, we already have Uniform Criminal Code, like Indian Penal Code, Code of Criminal Procedure, Juvenile Justice Act, POCSO to name a few. We also have uniform law on certain civil matters like the Contract Act, Transfer of Property Act, Civil Procedure Code etc. Thus, the debate around implementation of Uniform Civil Code is about implementation of Uniform Family Laws, sometimes called as Personal Laws.
Historical traces and Constituent Assembly Conflicts
The UCC can be divided into three eras- the British colonial era, the Nehruvian/Congress era and the current era. While India was under British rule, serious consideration was never paid to the Uniform Civil Code because the British were predominantly concerned with two main subjects, “Crime” and “Revenue”. Their intention was to maximize revenue and to have uniform criminal laws to control the population and effectively govern India. In Nehruvian era, the need to have UCC was felt. Our first Prime Minister believed that the strict noninterference policy of the British Judiciary in the Hindu personal laws had arrested the evolutionary growth of the Hindu Law and that pre independence Hindu laws were predominantly biased towards men and women were rather “shackled and unfree”. Thus, he believed that there was a need to have uniformity in the legal practices through codification. In furtherance of that, a special committee, called the Hindu Code Committee, was set up in 1941 under the chairmanship of Sir B. N. Rau, a former judge of the Calcutta High Court to suggest measures with comprehensive legislation. The committed in its report suggested that instead to having separate legislations it is better to have a comprehensive code that could retain the distinctive character of Hindu Law while introducing particular changes. The Rau’s committee was vested with the responsibility of preparing a draft code on Succession, Maintenance, Marriage and Divorce, Minority and Guardianship and Adoption. This code was called Hindu Code Bill. This bill was presented, extensively discussed and finally lapsed in the constituent assembly.
The debates and contradictions started within the Constituent Assembly. In constituent Assembly, it was moved from the Fundamental Rights chapter to that of the Directive Principles of the State policy of the Constitution of India, a political compromise that made it only recommendatory for the state to enact law on it. It is to be noted that during the constituent assembly debates, most of the Muslim members who voiced their opinion on the Uniform Civil Code were all men and except for one, all others wanted to exclude it. On the other hand, a parsi (Minoo Masani), a Christian (Rajkumari Amrit Kaur) and a Hindu (Hansa Mehta) wanted to make it a fundamental right. Jawaharlal Nehru wanted to bring Hindu Code in effect as soon as possible as he thought that it would not only bring uniformity in the country but also free Hindu women from age-old superstitions, complexes, patriarchal feelings and deep-rooted prejudices running along caste, class, religious and region. But unfortunately he did not hold the same opinion for Muslim women. No steps were taken by his government to codify laws for the Muslim and over looked the concept of having a common code all together. In fact, Nehru believed that bringing UCC immediately after partition will leave the Muslims who stayed back in India ‘insecure’ and that they were not ready for the change.
The current era, however, is witnessing efforts to make UCC a reality. In BJP’s manifesto of 2019 Loksabha election, Uniform Civil Code was a key promise. The debate to have a uniform code has been invigorated in this era. From increasing the age of consent of a married girl u/s 375 of IPC from 15yrs to 18 yrs to having a law that criminalizes triple talaq, there is a natural tilt towards having a uniform code that could bring equality.
Need to have UCC:
In one of its recent ruling, The Karnataka High Court has quashed the POCSO case registered against a Muslim man for impregnating his minor wife. The matter was put to rest after a settlement between the accused and the victim, who was married to him as per the Mohammedan Law. The order was passed two days before another single bench of the High Court declared that POCSO Act overrides personal law and thus, the age for involving in sexual activities is 18 years. The question as whether POCSO, being a secular law, has an overriding effect on personal law is in abyss. In this entire battle of secular law versus personal law, the one who suffers the most is the Muslim woman. In a situation like this where a minor girl is pregnant, the pain she undergoes is unfathomable. On one hand she is being subject to mental harassment because the legitimacy of her child is in question and on the other hand she has the responsibility of bearing a child at such an early and immature stage of her life.
There have been umpteen incidences wherein muslim women suffered because of their archaic personal laws. In 1985, In Mohd Ahmad Khan v. Shah Bano, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh who had granted her irrevocable talaq. When she was denied maintenance under Muslim personal law, section 125 CrPC (a secular law) came to her rescue. In 2017, In Shayra Bano v. U.O.I (Triple Talaq Case), even though the practice of triple talaq was held unconstitutional, the ordeal of muslim women did not end. Post this judgment, The Muslim Women (Protection of Rights on Marriage) Act, 2019 came into force that criminally prosecuted the husband who practiced triple talaq. In such cases, it is the women who suffer vagrancy and destitution. These archaic practices that are inextricable part of Sharia Law has been continued since Nehru times and its effect can be traced today when today we stand in the court pleading for justice for the women of our country. The judiciary rather than disposing of crores of pending cases, is interpreting these laws of the archaic times.
It must be understood that a Uniform Civil Code is not a demand for Hindus, Muslims, Christians or Parsis. It is rather for giving all women their human rights. It is time we depoliticize the question of UCC. For at the heart of the desire for a Uniform Civil Code is the determination to do away with discrimination. It is time we bring all personal laws within the constitutional principle of equality. After all, how can a country be secular if its laws are not?
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