By: Shelal Lodhi Rajput* |
Introduction
In a huge impetus, the Delhi High Court has backed the need for a common code or Uniform Civil Code (UCC) in India. To promote true secularism and not pseudo-secularism to unite the nation and promote cultural and religious harmony, UCC would be a game-changer in the Indian context and with the recent observation of Delhi HC, the government now needs to ponder urgently on the issue as the same was also reiterated from time to time by country’s Apex court. The subject of UCC is always problematic in India, and it has been hotly debated in recent years, particularly after the present regime took office. It was also included in the ruling party in the centre, the BJP2019,'s election agenda. With the recent statement made by the Delhi High Court while passing judgement in a divorce case, the focus has returned to the critical matter of UCC, and the debate around the issue has been reignited.
A ponderance aspect?
The constitutional setup of India claims that we are a secular country but the irony lies that when we are constitutionally claiming India as a secular country then why there is discrimination on the basis of religion in the law of our own county. To support the above contention, we need to keep in mind the framework of personal laws of a different religion that governs various matters such as inheritance, succession, marriage, adoption, etc. in the Indian legal milieu. The uniform civil code fulfills the true spirit of what our constitution in the present form wants to entail to the citizens of the country as UCC is consistent with human rights and the principles of equality, fairness, and justice.
What is Uniform Civil Code (UCC)?
The concept of Uniform Civil Code (UCC) is envisaged under Article 44 of the Constitution under Part IV that enshrined Directive Principle of State Policy. The provision was inserted by framers of the constitution with a hope for its implementation in the coming time. A UCC is effectively one civil law for the entire country, and such a law applies universally to all faith communities in personal concerns that are currently controlled by separate personal laws. The leading aspects under the ambit of civil law that can be governed by UCC are matters related to divorce, marriage, adoption, inheritance, and succession. It is basically a secular law, which is above all personal laws of any religion. At present, we don’t have any such law in India. The personal matters are settled by the personal laws in the instant time and it leads to gender disparity, an agnostic aspect of law and is detrimental to the interest of women many a time on the grounds of personal laws. For instance, succession in Hindus is governed by the Hindu Succession Act, 1956. It differentiates between men and women in matters of succession as it envisages a different scheme of succession for both, The only exception in India is the state of Goa where personal (civil) matters are governed by UCC. The UCC in Goa was appreciated by then CJI SA Bobde.
The Paradigm shift in society: Right time for UCC
There is no denying the truth that the one constant in life is change, and as society evolves, regulations must evolve to meet the true demands of society. The modern Indian society is progressing and the same was observed by Delhi HC that ‘the modern Indian society is slowly becoming more homogenous and the traditional barriers are disappearing and this includes differences based on religion, community and caste.’ With the changing society, there is a need for a uniform civil code as it is one uniform law that upholds the various principles of the constitution and particularly protects women’s rights.
The concept of UCC is not new, and it dates back to the British Rule, when the 2nd Law Commission Report was submitted in 1835, urging for uniformity in the codification of Indian laws. The commission issued a report on the codification of laws, however, due to Indian sentiments, they left out the personal laws. Hence the hullabaloo of UCC still persisted and we still don’t have a uniform civil law in the country. The society has started evolving and it is adopting new practices and negating the taboos or orthodox aspects of traditional barriers. As of now, interfaith marriages are common and catena of other practices that remove the traditional barriers are practiced by the younger generation specifically. Article 44 of the Indian constitution shall be made applicable with the view to incorporate the principle of ‘One Nation, One Law’.
Judicial prudence & latest development on UCC
A progressive step to uphold gender justice with a catena of other social issues can be addressed by the implementation of UCC. In the matter of Satprakash Meena v. Alka Meena (2021), the Delhi High Court recently highlighted this point while observing a matter of divorce expressed that the hope expressed under Article 44 of the constitution should not remain a mere hope only and noted that when people belonging to different castes and religions marry each other, they struggle with conflicts arising out of personal laws and the court is also repeatedly confronted with those conflicts. The court highlighted that the common code can create uniform laws in all matters and then there shall be no discrimination on any basis as the laws applicable would be the same for everyone. For instance, inheritance, divorce, marriage, adoption, etc. are all governed by different personal laws.
The Apex court in different rulings has indicated and highlighted the need for laws that are common to all citizens. The SC through its rulings in different cases has repeatedly given a message that personal laws are not final. The subject of UCC was dormant at the Supreme Court until 1985, when the case of Mohd. Ahmed Khan v. Shah Bano Begum (1985) changed the situation due to a shift in the paradigm in personal law and other considerations. Again, in the case of Ms Jordon Diengdeh v. SS Chopra (1985), the Supreme Court observed that Article 44 of the Constitution needs to be implemented in its letter and spirit and the court directed that the judgement of the case needs to be placed before the Ministry of law to take appropriate steps. In 1995, after 10 years once again Apex court opined strong statements in favour of UCC in case of Smt. Sarla Mudgal v Union of India (1995). Some of the other leading cases where Apex court categorically and specifically highlighted the need of UCC is John Vellamatton (2003), Shabnam Hashmi v Union of India (2014), ABC v State (2015), and ShayaraBano v Union of India (2016). It is evident that for the past 3 decades categorically, the Apex court has eluded the need for a UCC in the country, noted that India’s pluralism must be respected, and mentioned the need for gender justice.
In the latest development relying on the 1985 judgement of Apex court, Delhi HC once again reiterated the same views on UCC and indicated it as a need of the hour while deciding the matter related to divorce and it is clear that despite three decades after the Apex court order no steps have been taken. The Apex court highlighted the issue of UCC in 2019 while observing a civil case where the court noted that the government made no attempts to frame a UCC even though the makers of the constitution had expressed a clear hope for such a law. The court rules that no necessary action has been taken for UCC and identifies Goa, as a shining example as to how the UCC can be made applicable. The Courts have prodded the legislature intermittently to begin efforts to draft the UCC.
Impediment decoded
One of the major impediments that needs to be taken into consideration while discussing the idea of UCC is the opinion of the Law Commission that was headed by Justice Balbir Singh Chauhan. In a consultation paper containing 185 pages on Reform of Family Law, the Law Commission opined on the matter of UCC as it is neither necessary nor desirable at this stage. But at the same time, it needs to be noted that it is a constitutional prerogative and the topic of UCC was also discussed in constitutional assembly debates where Dr. B.R. Ambedkar was also a staunch supporter of the UCC. The only question that has remained unanswered till now is when was the correct moment to adopt UCC, which was answered by the court in its latest judgement, as well as how the previous administration ignored the Apex Court's judgements on the matter of UCC.
Comparative Aspect on One Nation, One Law
In India, we don’t have a ‘one country, one law’ system but many developed nations have adopted it. For instance, the Common Civil Code is applicable in France, the English Common Law in the United Kingdom, and the Common law system of the United States at the federal level. It is pertinent to note that Civil law systems are also applicable in Germany and Uzbekistan. The notion of one country, one law is applicable in these countries. At this moment after taking into account the past, present, and future aspects, the UCC becomes the need of the hour and hence we need One Nation, One Law.
Concluding remarks
In a country that prides itself on being the world’s largest democracy and where debates on secularism occupy the centre stage every other day and the rights of women specially get violated in an abrupt manner and for that, she needs to file the petitions and fight for her rights is shameful for the nation. The idea of different personal laws does not hold good in instant time. Maybe it worked out for us in the past but now the time has changed. In the current scenario, the idea of personal law becomes completely obsolete due to the rise in evils in society such as gender disparity, misogyny, etc. The entire world is witnessing a rise in religious extremism and India can set a path-breaking example with the implementation of UCC as how a diverse nation can stand united by redefining secularism.
In toto, we need a uniformity on the uniform civil code and the aspect of the implementation of UCC needs to be taken into consideration by considering the rights of all the stakeholders involved therein.
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* The author is a student at Symbiosis Law School, Pune.