UNIFORM CIVIL CODE: PAST, PRESENT AND FUTURE (PART 1)

  

"I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights."

                                                                                                                     -Dr. B.R. AMBEDKAR

INTRODUCTION: In recent days you must have heard about terms like ONE NATION

ONE ELECTION, ONE NATION ONE RATION CARD, ONE NATION ONE MARKET.

Similarly, Uniform Civil Code can also be termed as ONE NATION ONE LAW.

 Now let’s understand what does this UCC^[1] means. HINDU CODE BILLS , MUSLIM PERSONAL LAW, The Indian Christian Marriage Act etc. laws are nothing but only religious laws of particular religion to deal with civil matters of  that religion. Now UCC is the code which will deal with the civil matters of all religions. This means that every religion comes under the purview of UCC. Now there must be a question in your mind that why only Civil matters, why not Criminal matters? Well you will get your answer in the background section.

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BACKGROUND: In this section we will basically analyze the Legal development in India, from the ancient judicial system to the modern judicial system of India.

ANCIENT SYSTEM: In Ancient times VEDAS, SUTRAS and SMRITIS were local laws. Some examples are MANUSMRITI, YAJNAVALKYA, NARADA SMRITI, BRIHASPATI SMRITI, etc. 

MEDIEVAL SYSTEM: In Medieval times India was ruled by Sultans, Mughals and other Muslim rulers. In this time Indian Muslim Shariat laws were applied.

MODERN SYSTEM: In 1765 EIC^[2] got Diwani rights. After getting Diwani rights, Robert Clive created a rule of DUAL ADMINISTRATION in which NIZAMAT rights were given to Nizaam. In 1772, WARREN HASTINGS introduced JUDICIAL PLAN in which it was mentioned that Indian criminal judicial system will be governed by Muslim criminal law and there was no interference with civil law. This judicial plan was introduced to make some major changes in Adalat System. After few years from 1781, britishers started regulating Muslim criminal law and tried to make these laws similar to that of Britain at that time and there was no major changes related to civil law. In 1833 a CHARTER was passed through which first law commission of India was made under LORD BABINGTON MACAULAY.

This law commission gave few recommendations, two of them are important for us.

1: It drafted the IPC (INDIAN PENAL CODE)

2: It recommends that there should be LEX LOCI.

This was the first step towards uniform law for India.

By creating different codes like IPC and CRPC, britishers has already defined the criminal laws and these laws were purely secular in nature as quoted in 1985 AIR 945, 1985 SCR (3) 844.

Britishers had also made major reforms or changes in the laws of Hindu Religion because they had support of many important persons of that era like Raja Ram Mohan Rai, Ishwar Chandra Vidyasagar and others.

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CONSTITUTION ON UNIFORM CIVIL CODE: ^[3]On 23 November 1948, Constituent assembly made a draft for Uniform Civil Code. At that time there was massive debate going on because those who were in opposition of this law wanted that personal law should not come under the purview of this article. Due to disagreement between the members of constituent assembly it was held that it should be enshrined in Directive Principles of State Policy (DPSP). Currently, Article 44 of the Indian constitution talks about the uniformity between laws in India it states that The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. Goa is currently the only Indian state that applies uniform laws for every religion or community.

Let’s go through a brief of what were the major arguments placed in this debate of Constituent assembly.

Mr. Mohamed Ismail Sahib: There is no need to abolish personal laws for augmenting harmony and peace.

Mr. Naziruddin Ahmad:  Religious or personal law of any community should not be overruled or changed without approval or consent of that particular community. He also quoted Article 19 of the Draft Constitution and said that Uniform laws will clash with it. There are also certain provisions in the CrPC that had already interfered with personal laws and we don't want any further interference.

Mahbood Ali Baig Sahib Bahadur: The concept of uniform laws should not clash with personal laws of different communities. He also quoted the term “CIVIL CODE” and said that it does not strictly cover the personal laws of a particular community. It only covers laws of property, transfer of property, law of contract, law of evidence etc.

Shri K. M. Munshi: We have already accepted that parliament has the right to make laws so they can enact uniform civil code depending on what the majority of parliament members think about it. Hence when the majority of parliamentarians think to enact that law they should do this without infringing fundamental rights of a particular community.

Shri Alladi Krishanaswami Ayyar: A Civil Code, as has been pointed out, runs into every department of civil relations, to the law of contracts, to the law of property, to the law of succession, to the law of marriage and similar matters. How can there be any objection to the general statement here that the States shall endeavor to secure a uniform civil code throughout the territory of India?

CLICK HERE TO SEE THE FULL CONSTITUENT ASSEMBLY DEBATE

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SUPREME COURT ON UCC: In past years, Supreme Court through various judgments have cleared its intent for Uniform Civil Code in India. Starting in chronological order the first case is

The State of Bombay vs Narasu Appa Mali. In this case the validity of Bombay prevention of Hindu Bigamous Act 1946 was challenged stating that it violates Article 14, Article 15 and Article 25 of the Indian Constitution and court held that there is violation of Article 14 and Article 15 of Indian constitution because bigamy is prohibited only for Hindus while for Muslims it was permitted but court did not quash any part of this act rather it said that personal laws did not come under the purview of Article 13.

In case Mrs. Mary Roy Etc.Etc vs State of Kerala & ors. Validity of Travancore Succession Act, 1916(TSA) was challenged on the grounds that it violates Article 14 and Article 15 of the Indian constitution. It was held that no personal law is superior than constitution and Supreme Court quashed the provision of succession of this law stating that it violates Article 14 of the Constitution of India.

There are few other cases like Lily Thomas, Etc. Etc. vs Union Of India & Ors. , Mrs. Pragati Varghese And Etc. vs Cyril George Varghese And Etc.

Two most important case laws that are related to UNIFORM LAW are :

Mohd. Ahmed Khan vs Shah Bano Begum And Ors: In this case there was a clash between a  SEC 125 CRPC and a provision of MUSLIM PERSONAL LAW(SHERIAT) APPLICATION ACT 1937. Shah Bano was married to Ahmed khan in 1932. In 1975 it was mutually decided that Shah Bano will leave his home and he will pay a sum of Rs.200 per month. But in 1978 he stopped giving maintenance. Then u/s 125 CrPC Shah Bano claimed maintenance but at the same time Ahmed Khan divorced her through an irrevocable talaq and took a plea that she ceased to be his wife and under MUSLIM PERSONAL LAW (SHERIAT) APPLICATION ACT 1937, he was bound to pay the maintenance only for the 3 months (PERIOD OF IDDAT) from the time of divorce and MAHR.

RULING OF INDORE COURT: Indore court ruled in favor of Shah Bano and directed Ahmed Khan to pay maintenance of Rs.25 per month to her.

RULING OF HIGH COURT: High Court gave judgment in favor of Shah Bano and also increased the amount of compensation from Rs.25 to Rs.179.20.

RULING OF SUPREME COURT: This case was referred to 5 judge’s bench under Justice Y.V. Chandrachud, which ruled that Shah Bano is entitled to maintenance of Rs.179.20 and additional amount of Rs.10,000. Bench also quoted that sec 125 is truly secular in nature and there is no conflict between sec 125 and personal law as Quran imposes an obligation on Muslim man to provide maintenance to divorced wife. Bench also stated that the state should work on effectuating the ideals given under Article 44 of Indian Constitution.

Shayara Bano vs Union Of India And Ors.: In this case, the issue was that whether Triple talaq(Talaq-e-biddat) is unconstitutional or not. The main issue was that whether Triple will get protection under article 25 of the Indian Constitution. The Supreme court in the above case held that the practice of triple talaq was unconstitutional.

CONCLUSION:  Article 25 of the Indian constitution provides protection to the personal laws however, this protection should not be available to those laws which are not in consonance with the other fundamental rights. Uniform Civil Code is a secular law, which is above all private laws of any religion or caste. But there is no such law system in India yet. At present, people of every religion in the country settle matters of marriage, divorce, and property according to their personal laws. The Muslim, Christian, and Parsi communities have their own personal laws, while the Hindu Personal Law deals with civil matters of Hindu, Sikh, Jain, and Buddhist religions. This means to say that at present there is no one country, one law system in India. And it is ironic that although the constitutional status of India is secular, which talks about faith and equal rights in all religions, but in a secular country, there is no uniformity regarding the law. Whereas in Islamic countries there is a law regarding this. That is, the country which is secular has not been able to move forward on the path of equal law to date. Religion-related barriers were gradually disappearing from society. The legislature should take the necessary steps for the implementation of a uniform code. All citizens of India should be treated in a similar manner. A uniform civil code will help in integrating India more than it has ever been since independence. A lot of the animosity is caused by preferential treatment by the law of certain religious communities and this can be avoided by a uniform civil code. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct.

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^[1]UNIFORM CIVIL CODE

^[2] EAST INDIA COMPANY

^[3] Click on the link to get the summary