Introduction:
India, a nation steeped in history and diversity, stands as a living testament to the harmonious coexistence of multiple cultures, religions, and traditions. With its inception as an independent nation in 1947, India’s founding fathers envisaged a secular state that would celebrate its multicultural fabric.
This vision led to the establishment of the Indian Union and the adoption of secularism as a cornerstone of Indian democracy. As the nation’s journey unfolds, the concept of a Uniform Civil Code (UCC) emerges as a thought-provoking discourse, aiming to forge a single legal framework for a diverse populace while preserving individual freedoms and cultural identities.
In this article, the embark on an exploration of the multifaceted theme of the Uniform Civil Code in India. Tracing its historical origins, the author delve into the essence of secularism that underpins this concept. As we navigate through the complexities of unity and diversity, we examine the challenges and possibilities that the UCC poses in a nation as intricate as India.
From navigating the dynamics between majority and minority communities to addressing the nuances of its implementation, the author strive to offer a comprehensive view of how the principle of “One Country, One Rule” resonates in India’s social and legal landscape.
One Country, One Rule? Unity in diversity : Uniform Civil Code in India
– By Dr. Navpreet Kaur (Lawyer| Co-founder@TheLaxmiFoundation -for acid attack survivors I Social Entrepreneur I Author I POSH Trainer I Diversity & Inclusion Expert) Explore more about author at https://journals-times.com/2023/03/16/how-to-deal-with-narcissistic-abuse-steps-to-rebuild-your-life/
Secularism in India: A Vision of Unity and Equality
When India gained its independence from Britain in 1947, its founding fathers envisioned the newly free nation as a secular multicultural state. Thus the union of states of India came into being and secularism became the watchword of Indian democracy.
‘Secularism’ is a term, which was introduced in the year 1976 of the 42nd Amendment of the constitution, means separating government from religion which simply means that the government of India should not follow or favour any particular religion rather every religion should be favoured equally.
Thus the spirit and the message of the inclusion the word secularism was that Indian progressing any religion is a citizen of India and equal before law.
Unity in Diversity in India
Jawaharlal Nehru in his book “The Discovery of India” wrote “Some kind of a dream of unity has occupied the mind of India since the dawn of civilization. That unity was not conceived as something imposed from outside, standardization of externs or even of beliefs. It was something deeper and, within its fold, the widest tolerance of belief and custom was practised and every variety acknowledged and even encouraged.”
India is renowned for its ability to maintain its unity despite its diversity. Due to a continuous period of migration, initiation, and transfer, we witnessed different cultural, religious, linguistic and functional groups in the country. This is a source of pride for every citizen of India.
Unity and integrity have been maintained in India despite sharp economic and social inequalities. This fusion has made India a unique entity of culture which represent multicultural situations within the framework of a single integrated cultural whole. This is sense of Indian-ness which withstood with many on slots of time.
But one important question arises here is about the diversity of applicable law– that has become a controversial issue since the first petition, filed by BJP leader and lawyer Ashwini Kumar Upadhyay in 2019 to seek the establishment of a Uniform Civil Code. The petition aims to advance national integration and gender justice, equality, and the dignity of women.
Secularism: Majority and minorities
One Country, One Rule- Call for oneness or canny ploy to divide rather than unite?
With the change in political dynamics since the rise of the current government, there has been a noticeable shift in the discourse around secularism in Indian politics. Observations indicate a renewed emphasis on addressing concerns related to the well-being of both majority and minority communities, aiming to foster equality and harmony. However, recent media coverage raises questions about the sense of security felt by minority groups in the country.
Instances of harassment and sexual violence against women and girls from specific communities have been a concerning issue, with recent incidents like the Kuki women assault in Manipur serving as tragic examples.
Critics from opposition parties claim that issues related to harassment within certain communities sometimes do not receive adequate attention from the ruling party, and concerns are raised about the perceived alignment with minorities primarily during election periods.
The 2019 Citizenship Amendment Act (CAA) fast-tracks citizenship for Hindu, Sikh, Buddhist, Jain, Parsi and Christian immigrants from Afghanistan, Pakistan and Bangladesh who arrived in India before 2015.Critics mention that CAA excludes fast-tracking rights for Muslims. In 2020, protests against the CAA led to violent riots in Muslim-majority neighborhoods in Delhi.
Recent directions in some states regarding ban on the headscarf, or hijab, in schools and colleges has sparked tension and protest in southern India between majorities and minorities. Many times the news highlights about the claims for religious building by majorities and minorities.
Concept of Uniform civil code
A uniform act is one that seeks to establish the same law on a subject among the various jurisdictions. Uniform Civil Code (UCC) means one law for all sections of the society irrespective of their religion. This covers laws relating to Marriage, divorce, maintenance, inheritance, adoption and succession of the property.
The Law Commission of India recently initiated a request for views and proposals from the public regarding the Uniform Civil Code because the topic has been a subject of intense debate and political controversy in India.
Uniform Civil Code in Indian History
The origins of UCC date back to the 19th century, when the country’s leaders emphasized the necessity for uniformity in the codification of Indian law with regard to crimes, evidence, and contracts but particularly advised against codifying the personal laws of Hindus and Muslims. India’s colonial era also tried to implement a uniform civil code.
The British government submitted a report in 1835 calling for the codification of Indian laws in a standard manner to facilitate the administration of justice. The Lex Loci Report of October 1840 stressed the importance and necessity of uniformity in the codification of Indian laws relating to criminal and Civil.
But due to opposition regarding codification of laws relating to civil laws vide The Queen’s 1859 Proclamation, It was promised absolute non-interference in religious matters.
Therefore, only Criminal law was codified and personal laws continue to be governed by separate codes for different communities.
The demand for the implementation of the UCC was raised especially during the hearing of the Shah Bano case in 1985. The Hon’ble Supreme Court ruled in this case that a Muslim woman, Shah Bano, who was divorced by her husband, would be given financial help. There was a reaction to this because it was against the Muslim Personal Law.
However, this was overturned as in 1986, the then ruling government brought Muslim Women (Protection of Right on Divorce) Act instead of bringing the UCC. This was mainly done to nullify the impact of the Shah Bano because the government did not want to anger religious conservatives.
Constitutional Status of Uniform Civil Code in India:
India being the largest democracy, living and breathing in the air of sovereignty has been gifted with the lengthiest Constitution in this world comprising 448 Articles in 25 Parts and 12 Schedules. The makers of the Constitution sought to transform India into a vibrant democracy. The Preamble states that India will be a sovereign, socialist, secular, democratic republic
During the framing of Indian Constitution Shrimati Purnima Banerji pointed out that secularism in a true sense could only be achieved if citizens of the nation are united among themselves. Leaders like Jawaharlal Nehru and Dr B.R Ambedkar also pressed for a uniform civil code.
However, UCC was included in the Directive Principles of State Policy as Article 44 mainly due to opposition from religious fundamentalists and a lack of awareness among the masses during the time.
Uniform Civil Code in India: Balancing Directive Principles and State Policies
Article 44 Directive Principles of State Policy states that State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India. This principle of Uniform Civil Code in the Indian Constitution serves as a guiding principle for the state’s policy-making, although it is not legally enforceable.
All the states and Union Territories in India follows different personal laws based on religious or community affiliations except the State of Goa that has implemented a UCC. Goa has retained its common family law known as the Goa Civil Code, which has been in place since its liberation from Portuguese rule in 1961.
Implementation of Uniform: Sensitive and tough task
India is need of Uniform Civil Code that is fair unbiased and wholesome acceptable. But in the present scenario when the minorities, poor and downtrodden devoid of equality do not feel safe and secure, then it is a tough task to implement the same.
Societies evolve gradually and reform should take place accordingly. Acceptance of UCC should come from varied social and ethnic groups not from the State through some order or Act which should smack of coercion.
Promoting Sensitivity and Awareness in Implementing Uniform Civil Code
India is yet not ready for the positive knot of UCC in its totality. Persuasion and motivation of those social religious and ethnic groups who have lagged behind and all round development accompanied by the implementation of equality laws is the need of the hour. It is also a psychological issue.
Experts should take note of education, economic and various other fields which free the human mind from dogmatism and stale traditions and make the mind ready for the acceptance the changes with the passing of times. Indians should be mentally prepared for the upwards change.
It is practically difficult to make uniform and uniform rules for personal issues like marriage in India due to tremendous cultural diversity in different religions, sects, castes, states etc. Various communities consider the Uniform Civil Code as a direct encroachment on their rights. For religious freedom because they fear that a common code would ignore their traditions and impose rules that would be determined and influenced primarily by the majority religious community.
Such a code, in its true spirit, could be brought by borrowing freely from different personal laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality, and adopting expansive interpretations on marriage, maintenance, adoption, and succession by acknowledging the benefits that one community secures from the others.
The government needs to look more sensitive and unbiased at each step while dealing with the majority and minority communities. Otherwise, these efforts towards common idea will be counterproductive leaving minority class feel more insecure and vulnerable to get attracted towards fundamentalist and extremist ideologies.
Significance should be given to educating and creation of awareness among the people that Uniform Civil Code is to serve equality and fair laws to the citizens of the country and not to corner any particular religion or section of the society for the sake of political or communal consideration.
Reforming Personal Laws for Equality and Human Rights: The Role of Uniform Civil Code
India is a birth place of so many religions and the various forms of religions followed in the country include Hinduism, Sikhism, Christianise, Buddhism etc., so there are various practises and laws being followed. Additionally, there are certain practises and laws that are derogatory, discriminatory and against the social justice that are significant to be removed. These need to come under reforms.
Article-15(1) of the Indian Constitution indicates that “state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”, contrary to the same there are certain practises which are being followed. So, it is important to remove the laws which are contrary, derogatory to spirit of the Fundamental Rights and are in violation of Human Rights.
Therefore, there should be a thorough analysis and reform of personal laws. This encompasses issues including marriage disputes, property rights, adoption, and inheritance. The UCC can only offer a just and reasonable framework for all citizens by harmonising current personal laws with the ideals of equality and fairness.
How to deal with the question of bigamy is very important in the context of present happenings- same is with the Child marriage?
Of course there is dire need to reform it, keeping in view of the detrimental effects of these social practices and sensitivity of the issues involved in the UCC, there is need to consider the reform regarding bigamy and child marriage etc. current laws can only be amended with the consent of the stakeholders which the society at large should accept. Of course medieval traditions are restricting all world rise of human consciousness, yet change should be in tune with the change of mind in any given society. The Act should not smack of majoritarian interest but it should exhibit sense of togetherness and Indian-ness.
Everyone should be bound by a uniform minimum age for marriage, despite their place, caste, and religion. Therefore, there exists an opportunity to amend current laws and create new ones with fewer discrepancies and faults.
UCC shall enact provisions that give men, women, and third genders of all religions rights and obligations to cherish equality. The phrase “everyone is treated equally” is one we all use and preach, and the same should be adhered to scrupulously. The ratio of male to female inheritance still varies in several religious practises. The same has to be modified.
To avert any discriminatory practises, aspects including marriage, divorce, inheritance, and maintenance should be reviewed. Equal rights and obligations for all genders should be emphasised by the UCC, reflecting the values of justice and morality.
For the formation of the UCC, it is imperative to assemble a committee of legal experts, academics, and representatives from religious and cultural institutions. To learn their opinions and concerns, this committee should organise meetings with stakeholders from various communities. A sophisticated awareness of various religious practises ought to promote the committee’s suggestions for making sure that no community feels marginalised or threatened by the suggested code.
The law should establish a framework that safeguards youngsters against all forms of exploitation, abuse, and prejudice, regardless of their religious or cultural backgrounds. Protecting children’s rights and wellbeing should be a priority for the UCC. To guarantee that children’s best interests are preserved, concerns about child marriage, child custody, and guardianship should be addressed.
The UCC should be implemented gradually to account for the diverse range of delicate religious practises performed in India. States that have progressive views and are prepared to accept a unified code may be the initial focus of implementation. With this approach, it is possible to create a process that is inclusive and allows communities enough time to prepare for the changes. It is advised that UCC should be thought of as a process that is constantly changing and open to adaptation and adjustment based on lessons learned as well as criticisms expressed during implementation. Law should not be static to evolving situations.
References
- Constitution of India
- Constituent Assembly Debates (Proceedings)
- Hindu Marriage Act, 1955
- Hindu Succession Act, 1956
- Hindu Minority and Guardianship Act, 1956
- Hindu Adoptions and Maintenance Act, 1956
- Hindu Disposition of Property Act, 1916
- Muslim Women (Protection of Right on Divorce) Act, 1986
- Nehru, Jawaharlal. Discovery of India. India, Penguin Random House India Private Limited, 2008.
- Dr. B.R. Ambedkar, The Annihilation of Cast: The Annotated Edition, 11 (Navayana Publication, New Delhi, 2014).
- Ratnaparkhi, M. S.. Uniform Civil Code: An Ignored Constitutional Imperative. India, Atlantic Publishers and Distributors, 1997.
- Secularism in India. N.p., Domenic Marbaniang.
- Dhagamwar, Vasudha. Towards the Uniform Civil Code. India, N.M. Tripathi, 1989.
- Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945,
- Ms. Jorden Diengdeh v. S.S. Chopra, (1985) 2 SCC 556
- Sarla Mudgal v. Union of India, (1995)3SCC635.
- https://indianexpress.com/article/explained/explained-politics/uniform-civil-code-bjp-rss-position-since-independence-8850998/
- https://www.thehindu.com/news/national/kerala/india-needs-uniform-civil-code-but-it-should-be-a-secular-code-that-does-not-favour-any-group/article67076400.ece
- https://www.livelaw.in/articles/not-uniform-civil-code-indias-plural-legal-system-may-enlighten-the-world-232857
- https://www.deccanherald.com/india/month-alimony-how-1985-shah-bano-case-paved-way-for-ucc-debate-1232459.html
Note:
Please note that the views expressed in the article belong solely to the author and do not necessarily reflect our own stance. We believe in fostering open dialogue and the exchange of ideas, and we encourage you to approach the article with an open mind.
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