09 October 2019
Give it serious thought
Source: By Abhishek Verma: Deccan Herald
Expressing its dissatisfaction, the Supreme Court recently observed that no attempt has been made yet to frame a Uniform Civil Code (UCC) applicable to all citizens. It highlighted the example of Goa, which has a UCC applicable to all regardless of religion, except while protecting certain limited rights. The observations came while the Supreme Court was considering the validity of the Portuguese Civil Code, 1867, to govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India.
This is not the first time the judiciary has brought up the matter of the UCC. In several previous instances, such as Mohd Ahmed Khan vs Shah Bano and Sarla Mudgal vs Union of India, the Supreme Court has urged Parliament to consider bringing in a UCC. In the words of former Chief Justice of India Y V Chandrachud, “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”
The UCC is enshrined as one of the ultimate goals of the Constitution under Article 44. It is pertinent to note the historical background on UCC to understand the ongoing debate, often met with vociferous opposition and equally vociferous support.
Reforms to personal laws were attempted by the British in the form of abolition of Sati, widow remarriage, etc. A committee was constituted which submitted the Lex Loci Report of October 1840, which emphasised the importance and necessity of uniformity in the codification of Indian law relating to crimes, evidence and contract, but it recommended that personal laws of Hindus and Muslims should be kept outside such codification. The personal laws involved inheritance, succession, marriage and religious ceremonies.
Given the British policy of ‘divide and rule’, they had no interest in a common civil code for the Hindu and Muslim communities that might unite them. Further, a common civil code was also opposed on grounds of administrative complications.
The UCC was pushed for again in 1937. The passing of the Hindu Women's Right to Property Act of 1937, also known as the Deshmukh Bill, led to the formation of the BN Rau Committee, which was set up to determine the necessity of common Hindu laws. The committee concluded that it was time for a UCC that would give equal rights to women in keeping with the modern trends in society, but its focus was primarily on reforming the Hindu law in accordance with the scriptures. This was again pushed for after Independence, but Jawaharlal Nehru rejected it on the ground that the country was not ready for it. Babasaheb Ambedkar also recommended a UCC.
The judiciary, particularly the Supreme Court, has raised the need for a UCC many times, but its recommendation to parliament to enact one has never been taken seriously.
The underlying concept of a UCC is to end discrimination in law based on religion. Nearly all personal laws act as tools of oppression against women using religious and social grounds. Such personal codes are against the very idea of gender equality promised by the Constitution as one of the cherished fundamental rights. In a country like India, where the principle of equality of all citizens before the law is enshrined in the Constitution, different sets of personal laws for different religious communities go against this very principle of the Constitution.
Different rules of civil law go against the secular credentials of the republic and challenge the concept of ‘unity in diversity’. In a diverse society like India, the laws to deal with disputes related to marriage, divorce, custody, adoption and inheritance need to be the same for all irrespective of religion, caste or sect. At a time when reforms for strengthening the position of women in society are being given the utmost significance and attention, there is an urgent need for a new civil code to eliminate discrimination against women.
A UCC administers the same set of secular civil laws to govern people belonging to different religions and regions. This does away with the right of citizens to be governed under different personal laws based on their religion or ethnicity. A UCC will, in the long run, ensure equality.
It is necessary that law be divorced from religion. With the enactment of a uniform code, secularism will be strengthened, much of the present-day separation and divisiveness between various religious groups in the country will disappear, and India will emerge as a much more cohesive and integrated nation.
The implementation of a UCC should get the support of all progressive and right-thinking citizens of the country. It is the need of the hour. There is also a need for a political consensus to implement such a code. In a nutshell, a uniform civil code is necessary to effect the integration of a country as diverse as India by bringing all the communities on to a common platform which does not form the essence of a single religion. A uniform civil code will also reinforce the idea of secularism enshrined in the Constitution. Therefore, serious thought should be given to enacting and implementing such a code.
In the words of former CJI Y V Chandrachud again, “We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform…But, a beginning has to be made if the Constitution is to have any meaning…it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.”