Uniform civil code: the state is duty bound to endeavour

Shreya Mishra[1]

“Allah never changes the condition of a nation unless it (first) changes what is in its heart” (Surah al-Ra’d, 13:11)

Even the cult Muslim must have forgotten this verse when they resisted against the enforcement of Uniform Civil Code. Every religion supports the idea of continuous change in some or the other way, but people always oppose the enforcement of uniform civil code on the basis that it interfered with their personal laws which tantamount to religious interference. But when people proclaim this they often forget that religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible a strong and consolidated nation.[2] Severing religion from social institutions such as marriage, divorce, succession etc., to secure fundamental human rights for all forms is the essence of secularism.

Article 44 states that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. It should be clearly understood that a larger part of the civil law in the country was already uniform in its content as well as application, when Article 44 came to be adopted by the constituent assembly; it was concerned with only that part of the civil law which is known to us as personal laws of different communities. When this provision was introduced into the constituent assembly several Muslim members, and even some Hindu members, objected it claiming it interferes with the religious rights and practices, and it would prove to be tyrannical to the minorities. Shri Alladi Krishna swami Ayyar countered it in a beautiful manner citing the example of the Hindu Code: The sponsors of the Hindu Code have taken a lead not from Hindu Law alone, but from other systems also. Similarly, the Succession Act has drawn upon both the Roman and the English systems. Therefore, no system can be self-contained, if it is to have in it the elements of growth.[3]

When the idea of Uniform Civil Code was introduced into the Constitution an argument was put forward that at this point of time it is difficult to ask the people to give up the marriage practices, law of inheritance and other matters related to personal laws. It was because this power given to the State to make Civil Code uniform was advance of the time and so it would not be justifiable to interfere with the settled laws of the different communities at once. More than 50 years has passed since then, but people still argue on the time to enforce Uniform Civil Code has not yet arrived. But it must have kept in mind that this is the appropriate time for enforcing Uniform Civil Code because a contemporary India is a totally new society with 55% of its population below the 25 years of age. Their social outlook and aspirations are shaped by the global standards of equality and humanity. Their view of shedding identity based on any religion should be considered to realise their full potential in developing this fastest growing economy.

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Today there is more awareness regarding the gender inequality and more steps are taken to bring the women in forefront. Schemes like Beti bachao Beti padhao and Ujjwala are launched to encourage bringing up of girl child but when the girl grows up and its time to realise her full potential, she is put up to various kind of discriminations like talaq-e-bidat and nikah-halala. This hypocrisy exists in every community; if a girl has to take the help of courts in order to attend her father’s funeral[4] because she has married in the other community then it definitely demands urgent attention to the existing laws. If personal laws of inheritance, succession, marriage, etc. are really a part of people’s religion, as they proclaim, then women would never be granted equality. The case of SarlaMudgal[5]shows us how notorious these personal laws can prove to be in the absence of a uniform law. The word ‘uniform’ in Article 44 did not mean that there would be a single law for all but it meant that that all communities should be governed by uniform principles of gender justice and human justice. Each personal law therefore should be reviewed from the perspective of social and gender justice.

One of the major argument on the basis of which the people often vehemently oppose Uniform Civil Code is that India is too big a country with a large population so diversified that it is almost impossible to stamp them with one kind of anything.[6] The law is relating to marriage, divorce, maintenance, guardianship and succession governing the Hindus, Muslims and Christians etc. is different and varies from one religion to other. There is no uniformity in all personal laws as they confer unequal rights depending on the religion and the gender. But what we have forgotten is that it is the religion which emphasises upon equal and uniform laws for all and it is the clerics and the fundamentalists who for their benefit oppose the uniformity in law. If we go by historical records then up till 1937, apart from the North- West Frontier Province, the Muslims to a large extent were governed by Hindu Law in the matter of succession. In order to bring uniformity within the Muslim community the legislature enacted the Shariat law, so it is not correct to state that Muslim laws are immutable laws and it is followed since ancient times. In fact, if we delve more into the history we will get to know how all the religious practices are some or the other way related to each other. We can take inspiration from European nations who are multicultural like us; there are Hindus, Jews, Muslims, Christians and Catholics all residing together in these nations and all are subjected to same laws. Even if it can be claimed as a far-fetched dream yet we can take cue from one of our states, Goa, which has enacted uniform civil code since 1870.

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When we try to shove the concept of Uniform Civil Code on the basis that directive principles are not enforceable by any court, we often forget that these are “fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” Whenever this issue is raised anywhere, whether it is Parliament or our Honourable Supreme Court, it always fought hard without deriving any clear conclusion. But it should not be mistaken to disharmony because this is the essence of a democratic nation. We already have uniform laws in all matters other than family affairs like marriage, inheritance and adoption. But even the presence uniform laws cannot stop the dissent among various sections of the society. Did people of Karnataka and Tamil Nadu not kill each other recently when they quarrelled over the waters of Cauvery. Democracy admits dissent and since ours is a plural society any effort to regiment various ethnic and linguistic groups into a uniform mould could be counterproductive. It can only be solved through discussion admitting opinions of the various sections of the society. Therefore, uniform civil code cannot be forced upon the people rather it can be drafted and that can be open for the public and parliamentary scrutiny; and after the deliberations it may, if deemed fit, be enacted. Though, the idea of gradual change still appeals to a lot of people but India is one of the nations which can take drastic steps like Demonetization, which only few countries in the world has taken till now, so it has the political courage for the enforcement of Uniform Civil Code. Therefore, it should no longer be the discretion of the State to enforce Uniform Civil Code but the State is duty bound to endeavour to secure for the citizens a uniform civil code throughout the territory of India.

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[1] Student, 2ndyr, Ballb, National University Of Study And Research In Law.

[2] Constituent Assembly debates official report volume VII partv, Constituent Assembly Debates, https://mail-attachment.googleusercontent.com/attachment/u/0/?ui=2&ik=8ca62b4237&atti.

[3] Id.

[4] Valsad Parsi Anjuman v. Goolrukh Gupta, SLP(C) 18889 (2012).

[5] Sarla Mudgal case, AIR 1995 SC 1531.

[6] Supra Note at 1.