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Uniform Civil Code

Posted on March 30, 2021 by admin1  1155

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The Chief Justice of India (CJI) S A Bobde has lauded Goa’s Uniform Civil Code, and encouraged “intellectuals” indulging in “academic talk” to visit the state to learn more about it.

Background

  • Earlier in September 2019, the Supreme Court had described Goa as a “shining example” with a Uniform Civil Code (UCC).
    • Goa has a common family law, thus being the only Indian state to have a uniform civil code and 1954 Special Marriage Act allows any citizen to marry outside the realm of any special religious personal law.
  • The Court observed that the founders of the Constitution had “hoped and expected” a Uniform Civil Code for India but there has been no attempt at framing one.
  • The founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy (DPSP) had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India.
    • The DPSP are some basic principles or guidelines for the government while formulating laws/policies of the country and executing them.
  • But, till date no action has been taken in this regard.

Uniform Civil Code (UCC)

  • The Uniform Civil Code (UCC) calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption.

Constitutional Provisions

    • Article 44: The “State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.”
    • Article 37: The Directive Principles of State Policies (DPSP) are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
    • Article 37: The “state shall endeavour by suitable legislation”, while the phrase “by suitable legislation” is absent in Article 44.

Inclusion in DPSP

    • The Uniform Civil Code (UCC) was included in the Directive Principles not in the Fundamental Right which are enforceable by the Court of Law due to following reasons:
      • Muslims members opposed it in the Constituent Assembly (CA).
      • Pain of partition on the religious ground was still not diminished.
    • The stand taken by B.R. Ambedkar in the Constituent Assembly was that a UCC is desirable but for the moment should remain voluntary.

Need for UCC

  • Equal Status For All: Personal laws are gender biased, the UCC will end discrimination in religions as it will replace individual personal customs and practices of marriage, divorce, adoption and successions with a common code. For Example:  Triple Talaq.
  • Uniform code in civil matters: Indian laws do follow a uniform code in most civil matters — Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act, etc.
  • Article 44 itself: The Article itself states the onus on the state to provide for its citizens a uniform civil code (UCC) throughout the territory of India.
  • National integration: It will impart the value of National integration among the citizens. After UCC, the gender, caste, creed, etc. will not be a matter.
  • Global practice of UCC: Almost all muslims nations like Morocco, Pakistan etc. have been following the UCC.
  • Constitutional laws are supreme to the religious laws: Secularism is the objective enshrined in the Preamble, a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
  • Remove vote bank politics: Opting the UCC will remove the religious nexus of Political system in which votes are divided on the basis of religion, caste etc.
  • Gender issues will be eliminated: Uniform Civil Code will make remove the Gender discrimination on the religious lines or on the basis of orthodox rules of the society. 

Hindrances in implementation of UCC

  • Lack of Political Will: The UCC is a sensitive issue, there is hard to get political consensus on this part. The multiparty system and democratic setup the majority decision matters.
    • The minorities are always treated as vote banks by political parties and become a hurdle in implementing the Uniform Civil Code.
  • Society is Multireligious: Due to diversity in India, it is somewhere tough to come up with a common and uniform set of rules.
  • Orthodox Muslims: Muslims belonging to the school of Orthodox perceive the Uniform Civil Code as an encroachment on their rights to religious freedom.
    • Communal leaders get support from unaware masses by mending the reality of Uniform Civil Code. For example, Muslim Leaders says Uniform Civil Code is a threat on their religious freedom
  • Against Article 25 & 26 of the Indian Constitution: Article 25 states Freedom of conscience and free profession, practice, and propagation of religion. So, the UCC cannot be forcefully imposed on the people.
  • Hindu Bill Code controversy: The codification of personal laws have historically generated protests. The Hindu Code Bill, one of the foremost pieces of social legislation, had triggered enormous opposition.

Judicial Pronouncements in this regards

  • Sarla Mudgal Vs Union of India (1995): The court held that the Hindu marriage solemnized under Hindu law can only be dissolved on any of the grounds specified under the Hindu Marriage Act 1955.
    • Conversion to Islam and marrying again, would not by itself dissolve the Hindu marriage under the act and thus, a second marriage solemnized after converting to Islam would be an offence under section 494 of the Indian Penal Code(IPC).
  • John Vallamathon Vs Union of India (2013): Secure for the citizens a uniform civil code throughout the territory of India.
  • SC refused to direct (2015): Cannot direct Parliament to enact Uniform Civil Code. It is Parliament to take a call on this.  
  • Shah Bano Case (2017): SC declared the practise of Triple Talaq (talaq-e-bidat) as unconstitutional and made it a criminal offence.  
  • Law Commission (2018): Uniform Civil Code which is neither necessary nor desirable at this stage.

                                                            Pic Source: TH

Conclusion

  • Social transformation shall be gradual one.
  • Secularism without encroachment of Fundamental Rights.
  • Codification of all personal laws as suggested by the Law commission.
    • By codification of different personal laws, one can arrive at certain universal principles that prioritize equity rather than the imposition of a Uniform Civil Code

Fundamental Rights & DPSP

  • The Supreme Court held in Minerva Mills (1980) that “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles)”.
  • Article 31C inserted by the 42nd Amendment in 1976 lays down that if a law is made to implement any Directive Principle, it cannot be challenged on the ground of being violative of the Fundamental Rights under Articles 14 and 19.
  • Article 25 lays down an individual’s fundamental Right to Religion.
  • Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
  • Article 29 defines the right to conserve distinctive culture.
  • An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights.

Source: IE

 
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