Roll no- R154216040

Abstract

Topic:- Uniform Civil Code: Possibilities and challenges

Uniform civil code (UCC) is a debated topic which says that there should be one uniform
civil law for every citizen of India irrespective of their religion, as of now personal laws have
taken place and are enforced. India is a country where issue of religious intolerance is
propagated. A country where faith supersedes law or law is moulded by faith accordingly.
The idea of not implementing UCC by some political parties is propagation of secularism and
some political parties propagates their agenda of religious polarisation by supporting
implementation of UCC. Today UCC is not seen as a idea of social welfare but this is used as
agenda for religious politics. As India is a country where faith of people have more moral
importance than laws and accordingly UCC is seen as attack on the religious beliefs and
faiths. It is also believed that making UCC as propaganda and essence of religious intolerance
is the cause for negative reaction by the religious communities.

Coming to the constitutional provision Article 44 of constitution of India states ‘The state
shall endeavour to secure for the citizens a uniform civil code throughout the territory of
India.’ So it is very much clear constitution is in the favour of implementing UCC. There are
many biased laws because of having personal laws which defeats the idea of equality. It is to
be seen whether the support of UCC will be propagated only for the polarization of votes and
opposed for propagation of secular politics or it will be implemented by political parties by a
uniform support for sake of country and equality and what are the real challenges and
possibilities in implementation of Uniform Civil Code.

keywords:- Uniform civil code, UCC, Article 44 , Religious intolerance , Personal laws
Research methodology: For this research work both doctrinal and non-doctrinal sources are
exhausted. Books, articles, Laws etc were referred as secondary sources of data collection
and question were asked and observations were drawn from the same.

Introduction:- Article 44 of constitution of India states that ‘The state shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India’1. The article
requires the state to take steps for establishing a uniform civil code throughout the territory of
India. Two objections were put forward in the constituent assemble against the making of a
uniform civil code applying throughout India: firstly, it would infringe the fundamental right
to freedom of religion mentioned in article 25 and secondly it would be a tyranny to the
minority.2

India is the country of various religions. Every religion has its own customs and usages in
which they have faith. At present there is no unified code or civil law which is governing
people of different religions. But we have different personalized laws for different religions
and some of them are not codified too. There are different personal laws for different
religious people such as for the Hindus Hindu marriage act, Hindu succession act, Hindu
adoption and maintenance act, and also the Hindu guardianship act, for the different purposes
such as the marriage, adoption, succession, guardianship etc. Muslims and Christians are
governed by their separate personal laws and the reason why we have separate personal laws
is that every religious group has different beliefs, customs and practices and it is possible that
the practices and beliefs of one religion may contradict with the other one and so for the
peaceful running of the society, we have different personal laws. It can be seen often that the
personal laws often face difficulty when the question of succession, marriage, divorce,
inheritance, adoption, maintenance, guardianship etc. The difficult portion of them arises
because different kind of judgement should be given in different situations and there is
difficulty in the distribution of justice. The part of the distribution of justice does not remain
uniform in its application and faces a lot of difficulty and so to solve these decisive steps
were taken towards the national consolidation in form of idea of uniform civil code which
was for the first time mooted seriously in the Constituent Assembly in the year 1947. As
India has no official religion and is well recognized as a secular nation. Being a secular
nation the laws in India should not be biased to any one particular religion. In India religions
are considered as regulating laws in itself. And followers of a particular religion bound

1
Article 44 of The constitution of India Universal law publishing ed. 2017
2
V.N shukala (2017) Constitution of India, 13 edn., Lucknow: Eastern book company EBC.
themselves with the laws and customs of that religion with the bond of faith. So it is not easy
to compel them all to follow one single law as it may prove harmful as they can see these
laws as an attack on their religion and this can disturb the harmony of different religions. But
not making and implementing uniform civil code is seen as a secular agenda of political
parties. Partially giving relief to follow laws of their religion and governed by the single code
on essential matters can be considered as good way to implement uniform civil code without
disturbing communal harmony.

Uniform Civil Code And The Personal Laws: Under this part of the paper, we will be
focussing more on the relationship between the personal laws and the Uniform Civil Code
and how the personal laws will be affected by the Uniform Civil Code. In this part of the
paper we will also be discussing about the various provisions in the personal laws that pose a
serious threat against equality and are discriminatory in nature and that they give us a string
reason for us to have a Uniform Civil Code. When we conduct a study of the personal laws,
we come to know that the women have always been considered inferior to the position of
men and that India is a patriarchal society since the ancient times. The women are considered
inferior in most of the personal matters as compared to men, especially when it comes to the
discussion of the topic of the matrimony or the succession, adoption or even the inheritance.
There have been various instances which petrify my opinion. Even though the Hindu law has
been codified, certain discriminatory provisions still exist even today. Thus it is oblivion to
the fact that the codification of personal laws of Hindus has not succeeded completely in
eradicating the gender inequality.

When it comes to discussing about the Muslim Law, in the Pre Islamic Arabia, the women
enjoyed a secondary status because since then it has been a patriarchy since then. The women
since then were considered secondary to men. The advent of Islam has contributed much
when it comes to the deterioration of the Muslim women and the escalation of their problems.

The Holy Quran gives equal rights to men and women and places women in a respectable
position. However, there are certain aspects in Islam that render the position of Muslim
women especially the wives insecure and inferior. In Islam, a man is allowed to marry four
times whereas the women cannot and if they do they are treated as unchaste and impure.
Women are not even given the right to divorce their husbands, when particulary the method
of divorcing the wife by the husband by pronouncing triple Talak is highly discriminatory.
This is inspite of the message given in the Holy Quran. This has been held void and unlawful
,recently in the Allahabad High court judgement. Even in the matter of succession, a Muslim
woman is discriminated against the assertion of certain Muslim scholars that the Islam in this
regard is more progressive and liberal. The legal position is that when two scholars or
residuary of opposite sex but of the same degree inherit the property of the deceased, the
Muslim male gets twice the share of the female. Even in the matter of maintenance, the
muslim wife is not required to be maintained beyond the Iddat period. The Criminal
Procedure Code which imposes an obligation on the husband to maintain his wife including
divorced wife until she maintains herself is a secular law and is applicable to all, however
there is a controversy regarding the Muslim men following this provision.

In the famous case of Mohd Ahmed Khan v. Shah Bano Begum, Thee SC speaking through
Y.V. Chandrachud, the then Chief Justice held that the Section 125 of the CrPC is applicable
also to the Muslims and that even a muslim husband is also liable to maintain his divorced
wife beyond the iddat period. The controversy began and the parliament has passed the
Muslim Women (Protection of Rights on Divorce) Act,1986 to overrule the judgement in the
Shah Bano Case. The effect of this act is that a Muslim husband is not liable to maintain his
divorced wife beyond the iddat period unless both the spouses submit to the court at the
appropriate time that they would like to be governed by the CrPC. This is like having the
provision but not using it for the sake of protection of the Personal law space and not giving
enough justice to the woman who is suffering so much.

Secularism And The Uniform Civil Code : The Preamble of the Indian Constitution states
that India is a Secular, Democratic, Republic. This means that there is no State religion. A
secular state shall not discriminate against anyone on the ground of religion. A religion is
only concerned with relation of man with God. It means that religion should not be
interfering with the mundane life of an individual. The process of secularisation is intimately
connected with the goal of uniform Civil Code like a cause and effect. In the case of S.R.
Bomai v. Union of India, as per the Justice Jeevan Reddy, it was held that religion is the
matter of individual faith and cannot be mixed with secular activities and can be regulated by
the State by enacting a law.

In India, there exists a concept of positive secularisms as distinguished from the doctrine of
secularism accepted by the United States and the European States i.e. there is a wall of
separation between the religion and the state. In India, positive secularism separates
spiritualism with individual faith. the reason is that America and the European States went
through the stages of renaissance, reformation and enlightenment and thus they can enact a
law stating that State shall not interfere with the religion. On the contrary, India has not
undergone any kind of renaissance or reformation and thus the responsibility lies on the state
to interfere in the matters of religion so as to remove the impediments in the governance of
the state.

The reason why a country like India cannot undergo a renaissance is very clear. We have
discussed above how there is prevalence of not only different religions in the country but also
their own personal legislative laws. This is why chances are, that the conflicts, instead of
decreasing may go on increasing and showing reverse effects on the laws that are made. For
instance, a practice or a tradition in one's personal law may be acceptable but on the other
hand, it may not be acceptable to the people of other personal laws. So, when the traditions
will be in practice, the nature of the conflict will transform itself from general differences to
hardcore enemosity.

People find it difficult to accept or adapt to certain changes and when it comes to a society
like India where religion defines the way of life, people connect themselves with their
religion instead of understanding that it is the religion which is made by human beings and
that human beings are not made by the religion. This thought finds itself in the graveyard
because some people still believe in burning. There needs to be a uniform law which governs
and regulate the behaviour of people of all the religions and not any particular section of the
society.

The Preamble of the Indian Constitution resolves to constitute a "Secular" Democratic

Republic. This means that there is no state religion or in other words the state does not
operate on any one particular religion and shall not discriminate on the ground of religion.
Article 25 and 26 of the Constitution of India as enforceable fundamental rights guarantee
freedom of religion and freedom to manage religious affairs.

At the same time Article 44 which is not enforceable in a court of Law states that the state
shall endeavour to secure a uniform civil code in India. Uniform civil Code is the uniform
method or the uniform law that governs the people as a uniform law and does not
discriminate on the basis of any religion or faith. As a new principle evolves and comes into
the knowledge of the people several questions arise and criticisms pave their way. In
unification of the personal laws, an important question that arose was what will be the
ingredients of the Uniform civil code.
Since, the personal laws of each religion contain separate provisions, their unification will
bring not only resentment, but also enemity in the public towards one another, therefore the
Uniform Civil Code will need to bring in such laws that strike a balance between the
protection of the fundamental rights and the religious principles of the different communities
that exist in the country. Issues such as marriage, divorce, maintenance etc. can be matters of
secular nature and law can regulate them.

The spine of controversy revolving around UCC has been secularism and the freedom of
religion enumerated in the Constitution of India. The Preamble of the Constitution states that
India is a "secular democratic republic"This means that there is no State religion. A secular
State shall not discriminate against anyone on the ground of religion. A State is only
concerned with the relation between man and man. It is not concerned with the relation of
man with God. It does not mean allowing all religions to be practiced. It means that religion
should not interfere with the mundane life of an individual.

In S.R. Bommai v. Union of India , as per Justice Jeevan Reddy, it was held that "religion is
the matter of individual faith and cannot be mixed with secular activities, Secular activities
can be regulated by the State by enacting a law"

Article 25 and 26 guarantee right to freedom of religion, Article 25 guarantees to every

person the freedom of conscience and the right to profess, practice and propagate religion.
But this right is subject to public order, morality and health and to the other provisions of Part
iii the Constitution, Article 25 also empowers the State to regulate or restrict any economic,
financial, political or other secular activity, which may be associated with religious practice
and also to provide for social welfare and reforms. The protection of Articles 25 and 26 is not
limited to matters of doctrine of belief. It extends to acts done in pursuance of religion and,
therefore, contains a guarantee for ritual and observations, ceremonies and modes of worship,
which are the integral parts of religion.

UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is base on
the concept that there is no necessary connection between religion and personal aw in a
civilized society. Marriage, succession and like matters are of secular nature and, therefore,
law can regulate them. No religion permits deliberate distortion. The UCC will not and shall
not result in interference of one's religious beliefs relating, mainly to maintenance, succession
and inheritance. This means that under the UCC a Hindu will not be compelled to perform a
nikah or a Muslim be forced to carry out saptapadi. But in matters of inheritance, right to
property, maintenance and succession, there will be a common law.

Uniform Civil Code And The Gender Justice : As we have already discussed how the
personal laws violate the rights of the women and do not consider them as equal to men and
consider them secondary, we wish to convey that the Indian society is trapped in the vicious
circle of the patriarchy dogma that they are not even able to see and respect the human rights
of the women. There is a lot off controversy regarding the gender justice and the uniform
civil code in being. There is a lot to consider before opting for a uniform civil code, we need
to think whether or whether not to bring in the concept and a common civil law to everyone
in the country, with so much of diversity and the legal pluralism existing in the country.

Women empowerment has always been the talk of the town since decades now and not much
has been done when the question of the personal laws and the women arises. women
empowerment in the core areas like the social status, gender bias, health, security and the
main core empowerment are of exigent needs. The Indian state has infact encouraged
codifying the tribal communities laws but there are problems with it, that they are ever
evolving and keep on changing from time to time.

Article 44 of the Indian Constitution expects from the State to secure a Uniform Civil Code
for all the citizens of India. There is no Uniform Civil Code in India but a Uniform Civil
Code exists. There exists a uniformity in the law when it comes to the legal criminal
procedures but when it comes to the personal law there is no uniformity and there cannot be
any uniformity because of the prevalence of the diversity in the country. The laws relating to
every religion, be it Hindu, Christian, Parsi and Muslims are different and vary from one
religion to another.

Some people and researchers say that Uniform Civil Code should be implemented and
brought in the Indian Constitution in practicality, however we argue against it and say that it
is not only the problem of the gender justice, there are many other problems that wwill arise
with the upcoming of the Uniform Civil Code in the country.

There are different personal laws for different purposes like the marriage, adoption,
succession, inheritance, succession and guardianship and all of them differ with each other
when it comes to different religious groups in the country. Therefore, an upcoming of the
Uniform Civil Code, is not possible in a country like India for the various different reasons.
It is a known fact that in the personal laws of all the communities, gender justice is inbuilt
and it is a result of the socio economic conditions under which they are evolved. That is why
there is a need to reform the personal laws. When it comes to the personal laws women
undergo many difficulties and experiences in their lives like the severe trauma in matters
relating to the marriage, divorce and inheritance. Polygamy, desertion and triple talaq are just
a few examples to show the possibilities of the harassment against women. Indian women are
formally granted equality in political rights through Indian Constitution but due to the
different personal laws, women experience inequality, deprivation and violence. Within the
family their position is pitiable.

When it comes to the real sense of equality the Supreme Court in certain cases has opined a
need for the legislation for a common civil code or a uniform civil code envisaged by article
44 of India's Constitution should be enacted. It said in Shah Bano's Case in 1985, in Sarla
Mudgal Case in 1995 and in Vallamattam case in 2003. A critical look at the constitutional
debate, legislative enactments and judicial decisions very clearly indicate the lack of
seriousness in ensuring justice to women. Gender issues need to be addressed very seriously
and therefore the personal laws can be amended and need to be amended rather than bringing
up a whole new uniform civil code.

Also observations were done with regarding uniform civil code. Questions were asked from
20 students studying law regarding the uniform civil code. The observations can be given as
follows. :-

1. Do you believe that religious unity can be achieved in a diverse country like
India?
The main aim for this questions was to draw a background for Uniform civil code so
that the students can be comfortable to give answers comfortably and with more ease.

Out of 20 peoples 12 said that it is possible to achieve religious unity in India but the
other 8 said that it is difficult to achieve religious unity in country like India as there
are many religions here and somehow conflicts arose.
2. Are you aware of the existence of different religious (personal) laws in India?
The main aim of asking this question was to know how much they know about
personal laws prevailing in India and to know the background of their answer.
All the 20 people knew about the personal laws prevailing in India.
The question reflects that the awareness of religious laws is high. This is a very
positive and encouraging sign. It means that a large number of people have an interest
in the way our legal system functions. It also shows that the respondents can
formulate an opinion of the UCC which is backed by a thorough understanding of the
matter. In the case of the respondents who aren’t aware the reason could be lack of
solid exposure to legal knowledge.
3. Do you believe that in a country as religiously diverse as India a common law can
govern all religions?
The main aim of asking this question was to know the generalised opinion that, can a
common law govern all religions in this diversified country or not.
Out of 20 people majority of 13 said that there is no need of Uniform civil code in
India. And it will not be suitable to govern all the religion with one common law.
Most of them was with the opinion that enforcement of Common law could be seen as
an attack on the religious beliefs of the communities.
4. Do you think that current scenario of personal laws regarding matters of
marriage, divorce etc. is beneficial?
Out of 20 people 15 said that current scenario of personal laws regarding matters of
matters divorce etc is not that beneficial.
We can infer that people understand that somewhere personal laws are hampering
equality in society but as they were against implementing common law for all the
religions they also rationalise this inequality through religious beliefs and faiths.
5. Do you believe that a Uniform Civil Code will help increase the efficiency of the
judicial system?
17 out of 20 people said that yes implementation of uniform civil code will help
efficiency of judicial system.
But at the same time some of them were of the opinion that it may lead to chaos in the
society and the faith could be lifted up of the people from the judicial system as the
law me be seen as an attack on their communities.
6. For which of the following subject matters is there a dire need for a Uniform
Civil Code? (You can check more than one option)
  Marriage
 Divorce
 Maintenance
 Adoption
 Surrogacy

Out of 20 people 16 people ticked on the option of divorce. 2 of the 20 people

ticked no option as they believed that no law should be changed. And the left 2
were of no opinion of on this question.

Recommendations and conclusion

With the research conducted from all the secondary and primary sources we can
say that Uniform civil code is the need of hour but it seems to be a difficult task as
the citizens will not accept this common law that easy. They can see this law as an
attack on their religion and communities which can lead to another social and
religious disturbance in the nation.

So recommendation of the researcher is that the uniform law should be made but it
should not cover all the topics of personal laws but only the areas where major
inequalities are showing up. For example the area of divorce is very much debated
area and is majorly seen by people as a matter of concern. So uniform code should
be made only for the Divorce and other areas of personal laws should be left
alone.

By this way it can be possible that the communities would not see laws as attack
on their faiths and beliefs and also government will find it easy to rationalise their
steps.

References

1. Sarkar, Sumit; Sarkar, Tanika (2008). Women and Social Reform in Modern India: A Reader.
Indiana University Press.ISBN 978-0-253-22049-3.
2. Chavan, Nandini; Kidwai, QutubJehan (2006). Personal Law Reforms and Gender
Empowerment: A Debate on Uniform Civil Code. Hope India Publications.ISBN 978-81-7871-
079-2.
3. Lawrence, Bruce B; Karim, Aisha (2007). On Violence: A Reader. Duke University Press. ISBN
0-8223-9016-7 PragatiGhosh, Uniform Civil Code in India.
4. www.manupatra.com
5. www.legalserviceindia.com
6. http://www.cili.in/article/viewFile/1769/1153
7. Jain M.P, “Indian Constitutional Law” (6th Edition 2010)
8. Pandey J.N., “Constitutional Law of India” (43rd Edition 2006)