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UNIFORM CIVIL CODE: COLORED IN CONTROVERSY

Introduction

Our “religion” once promoted practices like Sati, Child marriage, and Nikah Halala. And there were times when these heinous crimes were passionately defended by the heads of the religion as necessary practices to place us closer to God. Religion never expressly mandated any social or cultural evils. Religion was not made for people to turn people against each other. A moral code of conduct was formulated to unite all, irrespective of their differences in their beliefs and practices. It was the followers, who bruised the entire religious system.

A Shia Muslim girl attains the age of majority at 9 years of age[1], which is unsound with the provisions of the Indian Majority Act, 1875. According to the Hindu Marriage Act, 1955 and the Prohibition of Child Marriage, 2006, the marriage of a girl below the age of 18 years would constitute a child marriage. This disparity of religious and legal sanctions differentiates people and leads to unorganised governance in terms of personal laws.

Article 44 of the Constitution of India

Since its inception, the Indian Constitution has been at odds with itself, specifically Article 44 of the Constitution[2], under Directive Principles Of State Policy which provides a suggestive provision that could facilitate the state’s establishment of a uniform civil code for all citizens. As a secular country, India promotes unity in diversity, but what goes hand in hand is confusion and complexities due to the interrelationships of the religions and their mechanisms within varied arenas of jurisdiction. The first petition was filed in 2019[3] to seek gender equality, justice, and the dignity of women marking the beginning of this contentious issue. According to Article 44[4], “The State shall endeavour to ensure for its citizens a uniform civil code throughout the territory of India.” Eliminating differences based on religion and gender would be the prime focus of its implementation because it would govern the citizens based on a uniform law and not institute prejudice on individual religious or customary laws.

The Uniform Civil Code promotes equality as its core value, treating each person under a uniform law to safeguard their Fundamental Rights as well as Constitutional Rights. Directive Principles of State Policy originally contained guiding principles for the state to enact efficient and comprehensive legislation, although a citizen would not be able to compel the State to obey them. Some individual thinkers and groups think that the implementation of this Article would prohibit the exercise of secular freedom, guaranteed to each citizen under Article 25[5] of the Constitution, or that India could no longer call itself “secular” if the UCC becomes a reality.

India and UCC in the light of patriarchy

No religion, may it be the Quran, the Gita, or the Bible preaches discrimination between men and women. Religion, contrary to popular belief, is not a barrier to the implementation of the Uniform Civil Code. People’s self-formed beliefs and incorrect perceptions are to blame. India is a patriarchal and misogynist country where men have unjustly ruled every social setting for years for this very reason. The policies to ensure women’s representation in an equitable fashion is ever-evolving. If the Uniform Civil Code gets implemented, the status of women will rise per areas of conflict, like succession and inheritance, which were originally dominated by men. To shift from a developing country to a developed country, a nation should neither be a female-centric society, nor a male-centric one. The establishment of UCC will restore societal balance and eliminate discrimination based on individual customs.

Selective and Actual Secularism

Despite being a secular country, we practice selective secularism. The Fundamental Right to marriage was invalidated and its relevance was questioned with the introduction of the Special Marriage Act, 1954 to facilitate inter-caste marriages. Special Marriage Act 1954, consequently fails in achieving its objectives because of the increasing number of conversions for marriage[6]. With the implementation of UCC, these issues would have never cropped up. Modern classification of laws and religion are two distinct concepts, and intertwining them will only result in social disruption and inequality. If everyone is subjected to religious autonomy and freedom while also being treated equally and governed under the same law that would be the state of authentic secularism, and that is what we need.

Jurisdictions

There are conflicts among individuals because of resentment toward each other’s religious governance and the way each religion conducts jurisdiction over civil matters like marriage, succession, adoption, divorce, inheritance, etc. with preferential treatment to some. The increased practice of polygamy[7], is observed in the hoax of religion, and people are increasingly, voluntarily converting to Islam to attain and exercise this right. UCC would be able to check this situation, leading to safeguarding the structure, and sanctity of the institution of marriage, in a way uniform for all other religions. These disparities differentiate between individuals and the way they conduct themselves despite being governed by Article 14 of the Indian Constitution[8]. These could be dealt with better if two individuals could be treated uniformly, regardless of their cultural differences. This will lead to the unification of the people under a single civil code of conduct because homogenous laws would bring uniformity and put an end to the overlapping of provisions. This would reduce confusion, and ensure justice in contemporary society.

Politicisation of religion

With the advent of UCC, the politicization of religion and its“issues of discrimination, concessions, or special privileges enjoyed by a community” because then the individual religious personal laws will have to go away. This will increase the credibility of the political parties and reduce the vulnerability of the voters.

A better tomorrow

55 percent of our population under the age of 25 years in India[9] is emerging as a youth, and moulding them in an equitable environment is essential for the country. The aim is to shape their social attitudes and goals according to the globally established principles of equality, humanism, and modernism. Implementation of the Uniform Civil Code will allow children to better understand the rules and respect the principle of equality. The Uniform Civil Code is now considered the hallmark of the legal structure of a modern, progressive nation[10]. It demonstrates the nation’s transition from caste and religion-based politics towards becoming a developed nation in its true meaning. As a country, we have degraded socially and culturally to the point where we are neither modern nor traditional. A Uniform Civil Code will aid in the uniform advancement of society.

Conclusion

Citizens of various religions and denominations follow different property and matrimonial laws, which is not only an affront to the nation’s unity but also raises the question of whether we are, in practice, a sovereign, secular, republic, as our Constitution declares, or a loosely aligned federal state where citizens live on the whimsical fancies of their religious gurus. The differences between the religions could have been saved with a Uniform Civil Code, by creating a safe and secure environment for people belonging to all religions and genders.

The Supreme Court has, through its judgments, tried to persuade the Parliament to implement the Uniform Civil Code, as in case of Mohd. Ahmed Khan vs Shah Bano Begum[11], where a divorced Muslim woman petitioned for maintenance from her former husband, the Hon’ble Court on deciding the precedence of the Code Of Criminal Procedure, 1973 to the Muslim personal law, called for the implementation of the UCC[12]. Justice from the law is far superior to justice in an individual case. This is why the importance of the implementation of UCC needs to be given the attention it requires before the consequences on the nation of religion and its flaws, are irreversible. 

Author(s) Name: Kasturi Bhowmick (University of Calcutta)

References:

[1] Nawab Sadiq Ali Khan v Jai Kishori (1928) 30 Bom. LR 134

[2] Constitution of India 1950, art 44

[3]‘Uniform Civil Code: Fresh PIL filed seeking creation of panel for drafting UCC; Delhi HC to hear petitions on 4 Nov’ (Firstpost, 27 August, 2019) <https://www.firstpost.com/india/uniform-civil-code-fresh-pil-filed-seeking-creation-of-panel-for-drafting-ucc-delhi-hc-to-hear-petitions-on-4-nov-7236241.html> accessed 20 December 2022

[4] Constitution of India 1950, art 44

[5] Shikha Goyal, ‘What is Uniform Civil Code?’ (Jagran Josh,  19 November 2022) <https://www.jagranjosh.com/general-knowledge/why-uniform-civil-code-is-necessary-for-india-1477037384-1> accessed 20 December 2022

[6] Rajesh Kumar Pandey, ‘Religious conversion just for sake marriage is unacceptable: HC’ (The Times of India, 31 October, 2020) <https://timesofindia.indiatimes.com/india/religious-conversion-just-for-sake-of-marriage-is-unacceptable-hc/articleshow/78961515.cms> accessed 20 December 2022

[7] Hanibal Goitom, ‘FALQs: The Controversy Over Marriage and Anti-Conversion Laws in India’ (Library of Congress FALQs, 25 March 2021) <https://blogs.loc.gov/law/2021/03/falqs-the-controversy-over-marriage-and-anti-conversion-laws-in-india/> accessed 20 December 2022

[8] AVijayalakshmi, ‘Constitutional perspective of uniform civil code’ (Legal Services India) <http://www.legalservicesindia.com/article/2367/Constitutional-perspective-of-uniform-civil-code.html> accessed 20 December 2022

[9]  Nikhil Rampal, ‘India is young, its leaders aren’t’ (India Today, 30 May 2019)

< https://www.indiatoday.in/diu/story/india-young-voters-old-mps-lok-sabha-1538175-2019-05-30> accessed 20 December 2022

[10]  Omkar Dattatray, ‘The Need and Necessity of UCC’ (Brighter Kashmir, 17 November, 2022)

<https://www.brighterkashmir.com/the-need-and-necessity-of-ucc> accessed 20 December 2022

[11] Mohd. Ahmed Khan v Shah Bano Begum (1985) (1) (3) SCR 844

[12] Diksha Munjal. ‘Explained, The Uniform Civil Code’ (The Hindu, 06 November 2022) <https://www.thehindu.com/news/national/explained-the-uniform-civil-code/article66105351.ece > accessed 20 December 2022