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Uniform Civil Code: the need of the hour

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Sameer Jena
Sameer Jena
The author is a practicing lawyer based in Delhi.

At a time when Assam, Uttar Pradesh, and some other BJP-ruled states are mulling over a common civil code and a five-member drafting committee has been formed for implementing Uniform Civil Code (UCC) in Uttarakhand, a leading Muslim organization of the country called for a conference of its scholars from across the country and raised voice against the code. In a protest against the code the Muslim body said that the law will not be accepted to Indian Muslims and they will continue to follow the Sharia. Now the question is what is wrong in one country, one law? Also question arises in many minds that why objection to a common civil code in the country by Muslim organizations and few other groups? What they fear of losing by implantation of a common civil code?

UCC means a law that is secular, which is equal for all citizens of a country irrespective of caste, religion, and ethnicity. Article 44 of the Indian Constitution considers the responsibility of the state to implement UCC. It directs the state to make a “uniform civil code” for all religions at an appropriate time. Largely, the purpose of Article 44 is to get rid of the problems associated with the discrimination against the weaker and vulnerable sections of the society and to increase coordination between different cultural groups in the country.

Article 44 is itself sufficient to accentuate its story and supremacy. Under the article, the open advocacy of the states to make uniform civil laws for all religions at the appropriate time is well known. Whereas it is the duty of the state to enforce a uniform civil code, social issues like marriage, divorce, maintenance, property rights, succession and adoption, etc. come in the concurrent list, so both the central and state governments can make laws on it. However, many experts believe that the Center should bring a law and implement it as soon as possible. On one hand when secularism has been given emphasis in the Preamble of the Constitution (the word “secular” was added to the Preamble of the Indian Constitution in the 42nd Constitutional Amendment 1976), on the other hand, the mention of a uniform civil code under Article 44 regarded as an important element of secularism.

The most fascinating is while Article 44 asks the states to take steps towards a uniform civil code; Article 37 dispossesses the courts of the authority to apply it. It means if state does not take initiatives for a common civil code in the country, then there is no purpose in approaching the court by the citizens for equal right. However, now and then, the courts have left no stone unturned in advocating for a common civil code. On can find the judgments and observations of the Supreme Court and High Courts have always made headlines in the public realm. Of late, the observation made by the Delhi High Court on the Uniform Civil Code remains a matter of debate. The court, while hearing a plea involving the applicability of the Hindu Marriage Act, 1955, in respect of parties belonging to the Meena community, backed the need for a Uniform Civil Code in the country and asked the Centre to take the necessary steps in this matter. The court said that the country is rising above caste, religion, and community and in view of these changing paradigms, UCC is the need and need of the hour.

In 1985, the Supreme Court in Mohammed Ahmed Khan vs Shah Bano Begum shown its displeasure to state “it is also a matter of regret that Article 44 of our Constitution has remained a dead letter” and reminded the Parliament about the need for framing a common civil code for the country. Similarly Jordan Diengdeh vs S.S. Chopra, Sarla Mudgal vs Association of India and many other such cases had to bear the brunt of the court for not having a common civil code. Citizens may call it misfortune or irony or political unwillingness of the parties or vote bank politics, anything, but this is what the country and the people witnessed in last 75 years.

Not many would know that there is a part in this country where the Uniform Civil Code is already in force. The state of Goa implemented the Uniform Civil Code in 1961 itself. It is worth noting that in many Muslim-majority countries there has been a lot of amendment in personal law with change in time. In these countries, gender inequality practices such as polygamy and triple-talaq have been eliminated. In countries like Bangladesh, Egypt, Indonesia, Iran, Iraq, Morocco, Pakistan, Somalia, Syria, Tunisia, Turkey, the act of having more than one wife is banned. If personal law can be reformed in these countries, then what are the reasons that the areas of Muslim personal law have been left entirely to their religious authorities in this country.

This reveals why regressive practices such as triple-talaq, polygamy, nikah-halala, female genital mutilation, underage marriage, among others, continue to remain in practice. Daughters get only half the property that sons are entitled to. For the last 75 years, it’s seen the political parties are using these socio-legal issues as a weapon for political gains. Justice delayed is justice denied and there should not be so much delay that it appears injustice. The country needs a Uniform Civil Code, needs to see all citizens through a single lens. Social justice, social security and upliftment, women empowerment, and equality cannot be instituted in the country in the absence of a common civil law.

Even though there is a growing demand to implement the Uniform Civil Code, it has its own challenges also. India is the seventh-largest country by area, the second-most populous country, and the most populous democracy in the world. The history of the country spans more than 4,500 years. It is a pluralistic, multilingual, and multi-ethnic society. It’s a country where the language, food, dress, living of people change in every hundred miles. The diversity is so extensive that it’s not as simple as it looks to bring all under one civil code. Being a country with agriculture is also a major challenge in this way. In this backdrop, it will be prejudice to disregard the alibi of tribal community of this land in this discussion.

There are about 110 million tribals in the country. Besides Muslim organizations, the tribal community (Scheduled Tribes) has also expressed their resistance to a common civil code in the apex court. An NGO named Rashtriya Adivasi Ekta Parishad, a group that claims to work to protect Adivasi interests, has filed a petition in the Supreme Court saying that if the court gives any direction regarding the Uniform Civil Code, then it will influence their culture, tradition, including their right to practice polygamy and polyandry, prevalent in their society. The organization defends that tribals have their personal laws and because they worship nature, not idols, they do not come under the purview of the Hindu community. Also, unlike the Hindus, they bury the dead body. Not only this, the customs of tribal marriage are also different from Hindus.

In its petition, the organization has stated that if UCC is enforced, the customs of the tribal community, including marriage, worship, funerals, and centuries-old practices will come to an end. It was said in the petition that polygamy is prevalent among the Nagas, Gonds, Baiga, etc. tribes, while polyandry marriages are prevalent among the Toda, Roda, Khasa, Tian, etc. tribes. The process of divorce among tribes is simple. Divorce is possible on various grounds with minimal ceremony. Men in tribal community can marry more than one woman and the restriction under the Hindu Marriage Act, 1955 does not apply on them. At the same time, it has also been said that the Scheduled Tribes are protected under special provisions in the Constitution.

With so many complications involved, now the question is will the state succeed in bring to life a common code. Is it now the appropriate time for a uniform civil code in the country? The questions look challenging, but can be delivered with proper home work. The government needs to work hard on public information dissemination (sufficient information on UCC should be provided in accessible and culturally appropriate ways) and bring in social programs for creating awareness among citizens about the code and the reforms it would bring.  The main problem is seen that people do not have the right information about the UCC or are being misled by mischievous groups sharing them wrong information. Many groups spread propaganda that UCC is interference in their religious affairs. Also several among those opposing the code propagate that it is like applying Hindu law to all religions, while it has nothing to do with religion.

The truth is UCC will simplify complex laws relating to various issues including marriage, divorce, maintenance, inheritance and succession, etc. and would apply to all citizens, regardless of religion they profess. If implemented, all existing personal laws will be repealed, which will also deal with the problem of gender discrimination existing in those laws. Apart from these, the code will provide social security to weaker and vulnerable sections, including women and religious minorities, reinforce the principle of secularism, while uniformity will strengthen the nationalist sentiment in the country. With the implementation of the UCC, equality will reach every section of the society and only then the goal of the constitution will be deemed successful.

Yes, the only drawback is the existence of some malign groups and religious organizations will be in jeopardy and that is the reason they create mistrust in communities to not make themselves to become irrelevant. The government will have to first win the trust of people and to start with, it should first put forward a draft to be discussed on streets, in club houses to Parliament.

 - Sameer Jena

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Sameer Jena
Sameer Jena
The author is a practicing lawyer based in Delhi.
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