Uniform Civil Code: Issues Of Identity And Citizenship

A Uniform civil code (UCC) is the common code that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption, etc. Uniform civil code essentially means unifying all these “personal laws” to have one set of secular laws dealing with these aspects that will apply to all the citizens of India irrespective of the community to which they belong.

• Article 44 of the Constitution declares that the state shall endeavour to secure a uniform civil code for the citizens throughout the territory of India.

Origin

Historically, the idea of UCC was influenced by the French Code of 1804 that had eradicated all forms of customary or statutory laws prevailing at that time and replaced it with a uniform code.

However, in case of India, the British warned by aggressive responses of people during Revolt of 1857 decided not to interfere in the social fabric of India and respected the personal codes governing aspects of marriage, divorce, maintenance, adoption and succession.

• Post-Independence, against the backdrop of partition, which resulted in communal disharmony and resistance to remove personal laws, led to accommodating the Uniform civil code as a directive principle under Article 44.

Judiciary and Uniform Civil Code

• The Supreme Court has emphasized the importance of having a UCC in several cases, which are as follows-
• Mohd. Ahmed Khan v. Shah Bano Begum and Ors (1985): The Supreme Court of India held that Muslim women are entitled to maintenance under Section 125 of the Code of Criminal Procedure, 1973 and the Parliament should outline the contours of a common civil code as it is an instrument that facilitates national harmony and equality before law.
• Sarla Mudgal v. Union of India (1995): The Supreme Court held that every citizen who changed his religion could not marry another woman unless he divorced his first wife because marriage is a secular institution and the obligations attached to it should be one and the same in all religions. It urged the government to secure a Uniform Civil Code to protect the national solidarity.
• John Vallamattom and Ors. v. Union of India (2003): The Supreme Court of India held that there is no necessary connection between religious and personal law in a civilized society. Matters like marriage, succession, etc. are of secular character and such matters cannot be brought within the guarantee enshrined under Articles 25 and Article 26 of the Constitution.
• ABC v. The State (NCT of Delhi): The Supreme Court held that a single mother of the Christian religion was eligible to apply for sole guardianship of her child without the assent of the natural father under the Guardian and Wards Act, 1890 that had not recognized the right of Christian single mothers. The court highlighted the inconvenience caused due to absence of a uniform civil code.
• Shayara Bano v. Union of India: The Supreme Court of India questioned the legitimacy of the practice of triple talaq and declared it unconstitutional.

Law Commission on Uniform Civil Code

The 21^st Law Commission said that a uniform civil code “is neither necessary nor desirable at this stage” in the country because cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation. It also held that secularism could not contradict the plurality prevalent in the country.

• The commission called for the codification of all personal laws. This would help in arriving at certain universal principles and bringing to light the prejudices and stereotypes in all religion which can eventually be tested on the anvil of fundamental rights of the Constitution.
• As per the commission, certain measures in marriage and divorce should be uniformly accepted in the personal laws of all religions. These amendments in personal laws include-
  • Fixing the marriageable age for boys and girls at 18 years so that they marry as equals
  • Making adultery a ground for divorce for men and women
  • Simplifying divorce procedure

Positives of Implementing Uniform Civil Code

• The Uniform civil code would help in establishing national integration by avoiding contradictions on the grounds of ideologies.
• End gender inequality, wrong traditions prevalent under the personal laws and preserve the rights of women.
• Protect the personal rights of all citizens without considering the religion. Help in strengthening the secular structure and encourage integrity.
• Ease the implementation and understanding of various personal laws of different religion.

Issues and Concerns

Issues and concerns associated with UCC are:

• Interference in the Domain of Religion: UCC interferes in religious faith of different religions.
• Conflict between Different Fundamental Rights: The conflict of freedom of religion with equality before law and right to equality.
• Against Democracy: India is a secular state, but it is also a plural society with diversity of culture. Democracy gives full play to pluralism, in cultural matters which require a regime of legal pluralism.
• Lack of Awareness: The misconception of minorities is that UCC will destroy their religious practices and they will be compelled to follow the religious practice of majorities. It is due to lack of awareness about the objectives of UCC that arise due to lack of education, fake news, irrational religious beliefs, etc.

The Uniform civil code is an instrument to strengthen secularism and bring uniformity in personal or civil laws. Dialogue, debate and discussion should be done about merits of UCC and the concerns associated with its implementation to formulate a law that brings equality, practices humanity and ends discrimination prevalent in different personal laws.