UNIFORM CIVIL CODE: A STEP TOWARDS GENDER JUSTICE OR LEGAL UNIFORMITY?
UNIFORM CIVIL CODE: A STEP TOWARDS GENDER JUSTICE OR LEGAL UNIFORMITY?
By Layba Rana, Faculty of Law, Jamia Millia Islamia University, New Delhi.
ABSTRACT
The uniform Civil Code is a topic of inte se discussion that always appears to be contentious and debatable in the news. Embodied in the article 44 of the constitution, the framers of Constitution aimed for a uniform and just society in which everyone has a right to represent and make their voices heard by everyone. The matters of Uniform Civil Code in India have come from time to time before courts. The article shall explore the various aspects of the code and how recent developments have been shaped in the nation in the guise of uniformity along with the judicial stance on the issue. The article will also analyse how the Uniform Civil Code is going to ensure gender justice in the society and what are the concerns over ensuring legal uniformity in the legal system of the nation.
KEYWORDS¬-Uniform Civil code, Constitution, religion, freedom, equality, fundamental rights, women, Justice.
INTRODUCTION
Few political debates in India revolve around the question of equality and religious freedom. The recent enactment of Uttarakhand UCC Act 2024 has sparked a hot debate in the nation. This act aimed at implementing the article 44 of the Constitution in force which forms a part of the Directive Principle of State Policy ranging from article 36 to 51. The Uniform civil code given under article 44 of the Constitution empowers the state to pass uniform civil code throughout the territory in order to secure uniformity and equality in the society.
The uniform civil code is considered by some of its proponent as a tool for securing gender justice or legal uniformity. They argue that through personal laws like Hindu Marriage Act, the Parsee Marriage Act, the Christian Marriage Act, the Muslim Personal Law and the Divorce Act etc. women section in society suffer because of orthodox notions and patriarchal mindset.
In a country like India where diversity is spread everywhere in socio-economic and political terms. Where there are numerous kinds of religion and a lot of language and unlimited number of dialects. India’s beauty lies in its diversity but sometimes this diversity becomes the foundation of debates and conflicts terms but most controversial and contentious feature is religion where any law enacted to bring uniformity in the nation surely and certainly comes in conflict with personal laws. Therefore the question before the government is whether they will prioritize equality over freedom or try to equi-balance both the rights as both are fundamental in nature. Also the another question arises is can the implementation of uniform civil code ensure gender justice or uniformity or it is just a political propaganda to manipulate the people?. The article shall critically analyse and try to explore the answers of these questions.
CONSTITUTIONAL FRAMEWORK REGULATING UNIFORM CIVIL CODE IN INDIA
Before diving into the intricacies of the UCC, let’s first analyse and understand this concept in detail and understand its constitutional framework.
Part IV of the Constitution deals with the DPSP (36-51) and of these one deals with uniform civil code in India embodied in article 44. The article states that State shall endeavour to secure for every citizen a uniform civil code through the territory of India. The uniform civil code means in its very literal sense that a code dealing with civil or personal matters will be applicable uniformly on all citizens irrespective of the fact what their personal laws are. To attain equality, homogeneity of legislation, non-discrimination and secularization, a common civil code has be provided to all citizens. Words like ‘endeavour’ and ‘shall’ show that state has a duty to ensure uniformity in civil matters, but unfortunately the purpose and aims of state behind enactment of these laws appear to be vague as they do not seem to serve the very purpose of uniformity instead reignite the religious debate among the large masses of people and people are divided in so called category of opponents an proponents. Opponents argue that the enactment of UCC has undermined their fundamental right of religious freedom granted to the under article 25 of the constitution. Though the right to freedom of religion is a fundamental one but it is subject to some reasonable restrictions and State’s authority to bring social or economic reforms that can be associated with religious practices.
The history of UCC goes back to pre-independence period when the British government produced a report in 1835 on colonial India emphasizing upon the need of uniformity in codification of Indian Law related to the contracts, crimes and evidences. The uniform civil code is part of DPSP which are non-enforceable part as per article 37 of the constitution. Therefore it is a matter of serious concern whether the DPSP can override the fundamental right to practice their religion without the intervention of the government.
UCC AS A TOOL FOR GENDER JUSTICE?
Justice B.S. Chauhan, Chairman of Law commission recently said in an interview that the Uniform Civil Code will bring gender equality and justice. He further argued that any change in the UCC should not be inconsistent with the religious freedom. But the fundamental question arises is whether UCC reform and religious freedom can coexist or not? There have been different points of views about the same. AIMPLB has showed dissatisfaction towards the implementation of UCC arguing that it is a threat to minority rights. On the other hand Hindu Mahasabha, RSS and Viswa Hindu Parishad have supported the notion of UCC. This is more frequently argued that UCC is a threat to minority rights specially Muslims as their personal laws are not created by legislature instead they are based on the Holy Qur’an( Word of God) and Sunnah which are not subjected to any changes ever. Therefore it is to be noted that UCC should be implemented with utmost care and caution keeping in mind the freedom of religion of citizens.
If UCC is implemented with great caution then it will not be inconsistent with the freedom of religion rather it will work like an option rather than a mandatory rule. For example Special Marriage Act 1954 is not a mandatory act for everyone to get married instead it is only for those who belongs to different religious background and want to get married hence UCC will not erase all fundamental practices to be followed in a religion instead it will bring uniformity and equality in the position of women and in certain other spheres. Here we can analyse the case of Goa where UCC coexist with a lot of personal laws peacefully. Uniform Civil Code will ensure equality and gender justice in society by abolishing the orthodox and self-made practices like caste prejudice, polygamy, triple talaq, and sati. Gender equality and UCC have a strong correlation. In India where women’s status has been ignored and their position has been undermined due to orthodox religious beliefs and practices and women have always fought for their rights and interests, therefore article 44 of the Constitution provides guidelines to implement UCC to the State, now it’s the State’s responsibility to ensure gender equality and justice in the interest of women.
The conditions of women has always been ignored ,and it’s only because of patriarchal mindset of the people in society. The patriarchal notions have moulded the religious practices and beliefs in theirs own interests by aligning their interest with religious beliefs to give them a legitimacy so that no one can dare to challenge them. Under Hindu Law, women can never be regarded as a natural guardian of a child during the lifetime of her husband likewise under Muslim law the matters of triple talaq, Mutta marriage, poligamy and maintenance has been of great concern and intense debate before the courts as well as among Muslims itself. Prophet Mohammad (PBUH) also disapproved the instant triple talaq which is also considered as talaq-e- biddah. Despite disapproval, this form of talaq has been prevalent among large numbers of Muslims, it is because of lack of real Islamic knowledge as Muslims women are granted equal rights in every sphere in the Quran along with respected status. These issues like poligamy and triple talaq are need to be addressed. Considering the gravity of the issue the Honourable Supreme Court in Shyara Bano v. Union of India declared the triple talaq unconstitutional. therefore there is an immediate need to implement UCC in a country to improve the status of women and to improve gender equality and justice.
CONCERNS OVER LEGAL UNIFORMITY UNDER UCC
The Uniform civil code had been drafted to bring uniformity in the legal system of the country in a manner so that there can be uniform legislations in a country to govern the code of conduct of the large masses of the country. The purpose of the constitution makers in incorporate UCC was not to impose majoritarinism on minority classes rather to create a just and equitable society in which no one can be oppressed or subjugated and there can be no gender discrimination, a society where women’s rights are protected and legal system does not contain unnecessary prejudices and complexities creating chaos and confusion without logics and reasons. But today’s implementation of UCC has faced a lot of opposition from the minority communities, who consider it as a majority imposition on minority sections. Many people or groups of people and some organisations are scared of the implementation of UCC because they think it can ignore the religious diversity, plights of minorities and impose Hinduized version of legal system in the name of equality or uniformity. India’s strength lies in its pluralism therefore critics argue that diversity should not be equated with inequality. Uniformity can marginalize the communities which are already underrepresented. The case of Goa can be understood here that how uniform civil code operates there. In Goa, the code is not entirely uniform either rather it provides exceptions within its legal framework for different communities specially for Catholics there. The Goa code shows that the application of such laws should not be uniform entirely rather it should be limited so as to ensure inclusivity and religious autonomy in the nation.
Some countries like France or Turkey have not fully implemented the UCC but these have certain aspects of uniformity in all personal or civil matters which are uniform for all citizens irrespective of their religions. But these countries have different historical context and uniform codes have been imposed in homogeneous societies than India. Therefore India needs a different approach for UCC that respects diversity of the nation, identity and religious autonomy of the citizens specially minorities , being more specific, of Muslims as their laws are derived from The Quran, Hadith, ijma or qiyas.
CONTEMPORARAY DEVELOPMENT IN UCC AND JUDICIARY STANCE
When the 22nd law commission was referring to a consultation paper on “Reform of Family Law” by 21st law commission then it has observed certain key findings about the Uniform civil code. In that report, the 21st Law Commission, headed by former justice Balbir Singh Chauhan, recommended that the “formulation of a Uniform Civil Code is neither necessary nor desirable at this stage”. Its recommendations were far-reaching. The Commission had commented, “Mere existence of difference does not imply discrimination, but is indicative of a robust democracy”. The Law Commission in its report in 2018, recommended that reforms should be brought within the personal laws to ensure equality without disturbing religious freedom. Nevertheless, the UCC has gained political direction and political parties like BJP has incorporated in its manifesto that it will implement the same. The most recent development in UCC can be seen in the state of Uttarakhand which became the first Indian state to enact the UCC Act entirely without any exception.
The courts in India have taken note of UCC in its various judgements. Some landmarks judgements are listed below-
Landmark Judgements-
1. Mohammad Ahmed Khan v Shah Bano - In the instant case, Shah Bano was denied the claim for maintenance under section 125 of CrPC. The Supreme Court ruled that she is entitled maintenance under section 125 of Code of Criminal Procedure (CrPC), which applied to all citizens for maintenance of wives, children and parents. The court states that irrespective of the religion. The Supreme Court, in this case also observed that it is the matter of regret that Article 44 has remained a dead letter. Uniform Civil Code will help in maintain the national integration by erasing all disparities of personal laws.
2. Shayra Bano v. Union of India - The SC in this landmark case declared the practice of instant triple talaq as unconstitutional therefore protected the rights and dignity of women in the society.
3. Sarla Mudgal vs Union Of India - The Supreme Court in this case declared the second marriage as invalid of a person who converted to Islam and re marry without dissolving the first marriage. There was a Hindu person who converted to Islam and marries again without dissolving the first one thwn court ruled that he has committed a bigamy under section 494 of the IPC. Thus while delivering the judgement, the jury also emphasized on the importance of UCC in the country to secure equality among citizens of the country.
CONCLUSION AND WAY FORWARD
The Uniform Civil code is not about erasing identities but it can be a transformative step in the legal system if it it implemented with a great caution and consciousness. The real question is not about whether India should implement UCC to abolish gender discrimination or bring uniformity but the question is what kind of UCC India needs. India needs to have a different approach for implementing UCC so as to ensure gender justice, legal uniformity and to increase the status of women in society.
One law – One Nation fits the entire country is not the solution. Instead, India should have aim for:
• A Common Minimum Civil Code that guarantees basic rights while ensuring the religious autonomy and respecting multicultural diversity of the nation.
• Codification and progressive reform within personal laws to eradicate gender discrimination.
• Inclusive consultations involving all stakeholders—religious leaders, women’s groups, jurists, and the public.
• Education and legal awareness, to prepare society for a just and equitable legal transition.
REFERENCES
1. https://www.tscld.com/uniform-civil-code-towards-ge
2.https://lawandotherthings.com/uniform-civil-code-the-history-and-the-present/
3.https://currentaffairs.adda247.com/what-is-uniform-civil-code-in-india/
4. https://citecase.in/10-supreme-court-judgments-on-uniform-civil-code/
5.https://indianexpress.com/article/opinion/columns/law-commissions-report-on-uniform-civil-code-undesirable-and-unnecessary-8680821/
