Explained: The Uniform Civil Code in India
What is the idea behind a Uniform Civil Code (UCC) for India? ((Relevant for UPSC Prelims)
Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
Apart from being an important issue regarding secularism in India, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985.
The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed since 1937, permitting unilateral divorce and polygamy in the country.
Goa is the only state in India which has a uniform civil code. The Goa Family Law, is the set of civil laws, originally the Portuguese Civil Code, continued to be implemented after its annexation in 1961
Does the Constitution mention a Uniform Civil Code?
“The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India,” says Article 44 of the Directive Principles of State Policy. Directive Principles are not justiciable or mandatory, only a guideline.
What is the debate about?
Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own educational institutions. It was understood that minorities could practice their religion and follow their customs and traditions. The Hindu right, first through the Jana Sangh and then the BJP, has been pushing for a ‘Common Civil Code’. Its argument is that Hindus have to abide by codified laws on marriage, adoption, inheritance, and succession under a set of Acts brought in by the Jawaharlal Nehru government in the face of opposition from the Hindu orthodoxy.
Is Uniform Civil Code the same as Common Civil Code?
Law Minister Sadananda Gowda has been using the phrases interchangeably, but experts say ‘Uniform’ (as suggested in the Constitution) does not mean ‘Common’. Constitutional principles of fairness and equality must reflect in a uniform law, but minorities fear a “common” code, as propagated by the BJP, would be majoritarian.
So where does the Special Marriage Act come in?
Enacted in 1954, the Act allows people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party, to marry or divorce under it. The only exception is Jammu & Kashmir. A marriage performed under the Special Marriage Act is a civil contract and, accordingly, does not involve rites or ceremonial requirements.
Is the debate over Uniform Civil Code just a Hindu-Muslim issue?
Far from it. Parsis, Jains, Sikhs, Buddhists, Christians, apart from of course Hindus and Muslims, have their own civil codes. While the Muslim Personal Law is yet to be codified (because of deep divisions within), Christian and Parsi codes were specified before Independence. The personal laws of Hindus, Jains, Sikhs, and others were codified in the 1950s.
Why do we need a Uniform Civil Code? (Relevant for UPSC Mains GS Paper II and Essay)
Many women associations feel that UCC would give women equal rights, as they believe the current laws discriminate against them.
a) A Muslim husband can divorce his wife by simply saying ‘Talaq, Talaq, Talaq’, without providing any reason, whereas a Muslim wife has to file a petition in court, which might take years, and she has to provide some ground for divorce, like cruelty, adultery etc. She also has to produce witnesses or documentary evidence in support of that ground.
Thus there is discrimination against the wife in two ways- both in the time required for the divorce and also for the obligation for providing reason being waived off for men.
b) A Muslim man can marry four wives, but a woman can, at a time, have only one husband. Moreover, polygamy is prohibited for Hindus (after 1955) and other religious groups. According to the 1961 census (the last census to record such data), polygamy was actually less prevalent among Indian Muslims (5.7%) than among several other religious groups (Adivasis-15.25%, Buddhists-7.9%, and Hindus-5.8%). There have also been many incidents of non-Muslim men converting to Islam solely for the purpose of practicing polygamy legally.
c) Christians are also given separate standards for divorce—which makes it more difficult for them than it is for Hindus. There are also some other significant disparities with regards to divorce law between different religions.
d) According to the Hindu Succession Act, a mother has equal rights over the property as do the children and the widow in the event of her son’s death. But when a married daughter dies, the mother ranks after the husband’s heirs.
These are only some of the significant differences between the different personal laws. Many of them clearly do not treat women at par with men. The proponents of UCC argue that we should have a common law treating women equally as men in all matters involving marriage, divorce, and inheritance.
Moreover, it is argued that it will lead to national integration and ‘true secularism’ and draw minorities into the mainstream and encourage communal harmony.
Why is it difficult to implement? (Relevant for UPSC Mains GS Paper II and Essay)
a) The vast diversity of the personal laws, along with the devotion to which they are adhered to, makes uniformity of any sort very difficult to achieve. Even under the Hindu Marriage Act, 1955, marriages may be solemnized in accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu. In the Muslim law too, though there are no elaborate rites or ceremonies, there exist some differences between the Sunni and Shia marriages.
b) The next problem comes from trying to remove politics from the debate. Any comment, opinion or discussion hardly passes through without political angles being attributed to it. This is especially true when major political parties (BJP, Congress, and the Left) have clear positions with regards to the UCC.
c) Many people still do not know what the uniform civil code really means. There are still false conceptions surrounding it, especially amongst the minorities, which make a rational debate on its implementation quite difficult. UCC is also sometimes perceived as the imposition of the Hindu code and procedures, and this adds to its opposition from the minorities.
d) The Hindu law has already been reformed, and yet the amount of land actually inherited by Hindu women is only a fraction of the land they are entitled to under the reformed Hindu law. Thus it is argued that the backwardness of Muslim women cannot be solely explained by their personal law.
e) Some people also argue that it would lead to a loss of the culture and the identity of the minorities in the Indian society.
Why is the Shah Bano case mentioned in this context? (Relevant for UPSC Prelims and Mains GS Paper II and Essay)
There have so far been two attempts to codify Muslim law. One, the Shah Bano case, was made in independent India. In 1986, the Supreme Court approved of extra alimony for Shah Bano, an Indore-based 62-year-old divorcee, from her former husband. The Muslim orthodoxy objected to both the alimony being imposed on the husband apart from the mehr fixed under nikaah, and to the way in which it was being done. The government of then Prime Minister Rajiv Gandhi succumbed to the pressure, and Parliament enacted a law diluting the ruling of the Supreme Court, via the Muslim Women (Protection of Rights on Divorce) Act, 1986. While this was subsequently changed by the courts, the Shah Bano case fuelled the debate over communities being allowed separate personal laws, with the BJP calling it Muslim “appeasement”.
The road ahead (Relevant for UPSC Mains GS Paper II and Essay)
The enactment of a UCC at once might disrupt communal harmony. The better course would be to bring about small reforms, correcting some inherent irrationality in some of the personal laws, and make them suitable for modern times. The focus should also be on removing disparities between different religions. This might lay the foundation for implementing a UCC at a later date.
Q:-It is argued that implementation of the uniform civil code in India should be a gradual process and should not be imposed suddenly Analyse Why? ( GS Paper -II) 200 Words
Uniform Civil Code is a piece of secular legislation that applies to every citizen of the country transcending religion, caste, and other divisional factors.
It should be imposed gradually and not suddenly just because the government is directed so under the Principle of State Policy because:
1) Every society has a threshold limit of absorbing change. Implementing UCC all of a sudden may break this threshold limit and this may create chaos in the country
2) Paves ground for communal politics to come into play abusing one another. This will disrupt communal harmony in the society
3) Creating a law of harmony is difficult for a diverse nation.
4)There are also some other transitory laws which to needs justification on the ground of uniformity like Art.343, Art.334 &Art.370.
Phased implementation:
1) Implementation of UCC starting with a less sensitive area such as women empowerment would be accommodated by the society.
2) Creating awareness on advantages of UCC such as fundamental rights, economic development (as in Europe which pushed religion aside for high standard of living through greater globalization) needs to be done for easier digestion of the laws.
3) Since UCC needs behavioral changes, research needs to be done through big data analysis.
Thus UCC requires more of a research and development, moral education than a piece of legislation.
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