India is an ancient civilization governed by customs and traditions. Sometimes, it is called the museum of various religions, castes, cultures and ethnic groups. If we go down the ancient period we find that India was governed only geographically and not politically. Religion played an important role in the political life of the nation and it also acted as a guide for the ruler and the ruled. Hence the law enacted at that time formed part and parcel of the religion. However, with the advent of the British rule, our nation entered the phase of modern history. The British brought new thoughts like, western education, idea of secularism, a constitution containing the rules and regulations for the people and the government, political institutions like parliament and the political thoughts like Democracy; Supremacy of the Constitution, Liberty, Equality, Justice Rule of law, etc. They formulated Indian Penal Code, i.e., codifying criminal laws in 1860. Thus, it was the first attempt to cover all the citizens of India under one law. But the civil sphere of life of all the people was left untouched. As a result of these developments a wave of nationalism arose in the minds of the people of India and with the enactment of various legislation like Government of India Act, 1935, India for the first time became a nation politically. With freedom in 1947 and enactment of the Constitution in 1950, India was born as a nation and the Constitution, the supreme law, occupied a supreme position in the political life of this nation.
Based on the ideals like Equality, Rule of law, Justice, Liberty, etc., our Constitution made enough provisions to uphold these ideals. It is the duty of the government to enact legislation based on these principles. By keeping this in mind criminal law is made applicable to all citizens of India irrespective of race, religion, caste or sex. But considering the vast diversities in India and the ambiguous condition prevailing at the time of Independence and the communal tension rife in our country, no Uniform Civil Code for all the citizens was made.
Uniform Civil Code
Article 44, makes it an obligation on the State to promote a uniform civil code to all citizens throughout the territory of India. Uniform civil code is a set of law proposal which will replace all the laws—personal laws governing institutions like marriage, divorce, inheritance of property, etc., based on religious faith.
M.C. Chagla former Chief Justice of Bombay High Court observed that, “Article 44 is a mandatory provision binding on the government. The Constitution was enacted for the whole country, it is binding on the whole country and every section and community must accept its provisions and directives.”
The Supreme Court suggested in favour of Uniform Civil Code through many judicial precedence. Some of them are:
Mohammad Ahmed Khan v. Shah Bano Begum mainly known as Shah Bano Case. In this case in 1985, Shah Bano moved to Supreme Court for seeking maintenance under section 125 of the Code of Criminal Procedure when her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance. The Supreme Court gave verdict in favour of Shah Bano by applying section 125 of Indian Criminal Code and it is applied to all citizens irrespective of religion. Then Chief Justice, Y.V Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. And so, the court directed Parliament to frame a UCC.
The second instance in which the Supreme Court again directed the government under Article 44 was Sarla Mudgal case. In this case Sarla Mudgal v Union of India, the question was whether a Hindu husband, married under the Hindu law, by embracing Islam can solemnize second marriage. The Supreme Court held that adopting Islam for a second marriage is an abuse of Personal laws. Further said that Hindu marriage can be dissolved under Hindu Marriage Act, 1955 i.e. mere by converting itself in to Islam and marry again does not dissolve the marriage under Hindu Marriage Law and thus will be an offence under Section 494 of the Indian Penal Code.
In John Vallamattom v. Union of India, the Priest from Kerala, John Vallamatton filed a writ petition in the year 1997 stating that Section 118 of the Indian Succession Act was discriminatory against the Christians as it imposes unreasonable restrictions on their donation of property for religious or charitable purpose by will. The bench comprising of Chief Justice of India V.V Khare, Justice S.B Sinha and Justice A.R. Lakshamanan struck down the Section declaring it to be unconstitutional. Further Khare stated that;
“Article 44 provides that the State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India. It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies”.
Need for a Uniform Civil Code
The need for a uniform civil code is promoted on the following reasons mentioned below:
- Firstly, India being a secular republic needs to progressive and must have a common law for all citizens. To have different rules based on religion is against the principle of equality. In fact, the fundamental rights have sought to reform many religious practices that were found to against the progress of the nation.
- Secondly, a uniform civil code helps to check the caste and religion-based politics. India has shown remarkable progress in the economic front but the social progress is hampered by the anachronistic religion-based traditions and personal laws. In the social-cultural respect, Indian society remains at a midpoint—neither a modern nor a traditional society.
- Thirdly, the existence of the personal laws keeps the nation divided in many respects and retards the nation-building activity.
- Fourthly, the promotion of gender justice demands a uniform civil code. Indian society is primarily a patriarchal society ridden by age-old traditions that promotes unfair unequal treatment of women. The constitution declares the resolve of the people to guarantee equal rights to women, which accelerates the need for a uniform civil code.
- Fifthly, the existence of various personal laws has been a loophole which is effectively exploited by the dominant and elite social class. For instance, the alternate judicial systems in rural India and the practices like honour killings are supported by the absence of the uniform civil code.
- Sixth, vote bank politics can be reduced by a uniform civil code. When all religions are brought under a single set of laws, the opportunity to offer benefits to certain religious denominations, especially the minorities, for garnering their vote will be reduced.
On the above grounds, there have been demands to make uniform civil code and implement in the past. At present, Goa is the only State in India to have a common civil code, also known as the Goa Family Law. The demand had always resulted in heated arguments for and against having the code. This had been a most debated provision even in the constituent assembly. However, the founding fathers have deliberately provided it as an unenforceable directive.
Uniform Civil Code: Why an Unenforceable Directive?
Uniform civil code aims at securing ‘harmony through uniformity’ is an undeniable truth. But making it a compulsory provision would result in a sort of regimentation of the civil code which will result in ‘discontent or dissatisfaction’.
Similarly, the Supreme Court has also ruled that although uniform civil code for all persons may be desirable, its enactment in one go may be counterproductive to the unity and integrity of the nation. Progressive changes must be brought gradually because social change is a slow process. The legislature must make or amend the existing law where there is an acute necessity.
To make all laws to be uniformly applicable to all people in one go would be inexpedient and incorrect.
India being a pluralist society, people have different faiths and the tenets propounded by their religious faiths are multifarious. It is indeed a challenge to achieve unity among the people professing different religious faiths, born in different castes, creeds or sub-sections in the society, speaking different languages and dialects in different regions and provided a secular constitution. Supreme Court, in Pannalal Bansilal versus state of Andhra Pradesh, observed that,
“The directive principles of the constitution themselves visualize diversity and attempt to foster uniformity among people of different faiths.”
The orthodox section among the minorities such as Muslims feels that the Uniform civil code will adversely affect their identity. The issue has been sensationalized by the media which brought the debate from the need for uniform civil code to the divinity of personal law. Consequently, the demand for Uniform Civil Code is regarded as identity politics and viewed negatively.