Recently, the Supreme Court in a case concerning the
question of whether succession and inheritance of a Goan domicile is governed
by the Portuguese Civil Code, 1867 or the Indian Succession Act of 1925, held
that: The Constitution in Article 44 requires the State to strive to secure
for its citizens a Uniform Civil Code(UCC) throughout India, but till date,
no action has been taken in this regard. The Hindu personal laws were codified
in the year 1956.
However, there has been no attempt to frame a Uniform Civil
Code applicable to all citizens of the country. Despite exhortations of this
Court in the case of Shah Bano in 1985, the government has done nothing to
bring the Uniform Civil Code. The Supreme Court hailed the State of Goa as a
“shining example” where “uniform civil code” is applicable to all, regardless
of religion except while protecting certain limited rights.
Goa has a common civil code called Portuguese civil code
1867, whereby:
- A Muslim man whose marriage is registered in the State cannot practice polygamy.
- A married couple share property equally, pre-nuptial agreements are the order of the day and assets are divided equally between the man and woman on divorce.
- Uniform Civil Code seeks to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Status of Personal Law in India Personal law subjects like marriage, divorce, inheritance come under Concurrent list.
Hindu personal laws have been by and large
secularized and modernized by statutory enactments. The Hindu personal laws
(that apply also to the Sikhs, Jains and Buddhists) have been codified by the
Parliament in 1956 This Code Bill has been split into four parts:
- The Hindu Marriage Act, 1955
- The Hindu Succession Act, 1956
- The Hindu Minority and Guardianship Act, 1956
- The Hindu Adoption and Maintenance Act, 1956
On the other hand, Muslim personal laws are still primarily
unmodified and traditional in their content and approach. The Shariat law of
1937 governs the personal matters of all Indian Muslims in India. It clearly
states that in matters of personal disputes, the State shall not interfere and
a religious authority would pass a declaration based on his interpretations of
the Quran and the Hadith. Apart from it, Christians and Jews are also governed
by different personal laws.
Need for a Uniform Civil Code:
Different personal laws promote communalism and it leads to
discrimination at two levels: First, between people of different religions.
Second, between the two sexes.
Uniform Civil Code will provide women with the right to
equality and justice in courts of law- irrespective of their religion in
matters pertaining to marriage, divorce, maintenance, custody of children,
inheritance rights, adoption, etc.
The Supreme Court for the first time directed the Parliament
to frame a UCC in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano
Begum , popularly known as the Shah Bano case. In this case, Shah Bano claimed
for maintenance from her husband under Section 125 of the Code of Criminal
Procedure after she was given triple talaq by him.
However, government overturned the Shah Bano case decision
by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which
curtailed the right of a Muslim woman for maintenance under Section 125 of the
Code of criminal Procedure. The Supreme Court in Shayara Bano case (2017) had
declared the practise of Triple Talaq (talaq-e-bidat) as unconstitutional.
Challenges associated with UCC
Constitutional challenges
Freedom of religion gets into conflict with the right to
equality. Article 25 lays down an individual’s fundamental right to religion.
Article 26(b) upholds the right of each religious denomination or any section
thereof to “manage its own affairs in matters of religion” Article 29 defines
the right to conserve distinctive culture.
These rights gets into conflict with the equality before law
enshrined under article 14 and 15. Moreover, an individual’s freedom of
religion under Article 25 is subject to “public order, health, morality”. In
2018, a report by the Law Commission of India stated that the Uniform Civil
Code is “neither necessary nor desirable at this stage” in the country.The
Commission said secularism cannot contradict the plurality prevalent in the
country.
Social-political challenges
In the name of uniformity, the minorities fears that the
culture of the majority is being imposed over them. Given vast cultural
diversity in India, bringing uniformity among all such people will be a huge
challenge. Patriarchal mindset of Indian society poses a big challenge in
implementation of UCC.
This can be reflected by the fact that, the Hindu code bill
has been already in place from mid-1950s, yet the quantum of land actually
inherited by Hindu women is only a fraction of the land they are entitled.
Merits of Uniform Civil Code
National Integration A unified code is imperative, both for
the protection of the vulnerable sections in Indian society(women and religious
minorities) and for the promotion of national unity and solidarity.
Simplification of laws
There exists so many personal laws like Hindu code bill,
Shariat law, etc. Presence of so many laws creates confusion, complexity and
inconsistencies in the adjudication of personal matters, at times leading to
delayed justice or no justice. UCC will eliminate this overlapping of laws.
Simplification of Indian legal system:
UCC will lead to reduction in litigation emanating from
multiple personal laws.
Establishing a secular society:
UCC will de-link law from religion which is a very desirable
objective to achieve in a secular and socialist pattern of society. Moreover,
it fulfill constitutional mandates under Article 44 of Directive Principles of
State Policy.
Gender justice:
The rights of women are usually limited under the
patriarchal discourse through religious laws. UCC will liberate women from
patriarchal domination and provide them with right to equality and liberty. In
the long term, UCC would lead to the defeat of the communal and the divisionist
forces.
Way Forward
The social transformation from diverse civil code to uniformity shall be gradual and cannot happen in a day. Therefore, the government must adopt a “Piecemeal” approach. Government could bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages. Government must emulate Goan practice of a common civil code, which has been the law since 1867, when the state was under the Portuguese colonial rule.
Moreover, when constitution espouses the cause of Uniform
civil code in its Article 44, it shouldn’t be misconstrued to be a “common
law”. The word uniform here means that all communities must be governed by
uniform principles of gender justice and human justice. It will mean
modernization and humanization of each personal law. It would mean, not a
common law, but different personal laws based on principles of equality,
liberty and justice.
Government has to take steps towards increasing the
awareness among the public, especially minorities, about the importance of
having a UCC. The UCC must carve a balance between the protection of
fundamental rights and religious dogmas of individuals.
It should be a code, which is just and proper according to a
man of ordinary prudence, without any bias with regards to religious and
political considerations.
Source:TH
About CAA:
The CAA provides citizenship on the basis of religion to six undocumented non-Muslim communities (Hindus, Sikhs, Buddhists, Jains, Parsis and Christians) from Pakistan, Afghanistan and Bangladesh who entered India on or before 31st December, 2014.
It exempts the members of the six communities from any criminal case under the Foreigners Act, 1946 and the Passport Act, 1920. The two Acts specify punishment for entering the country illegally and staying here on expired visas and permits.
Associated Concerns with CAA:
Targeting a Particular Community: There are apprehensions that the CAA, followed by a country-wide compilation of the National Register of Citizens (NRC), will benefit nonMuslims excluded from the proposed citizens’ register, while excluded Muslims will have to prove their citizenship.
Issues in the North-East:
It contradicts the Assam Accord of 1985, which states that illegal migrants, irrespective of religion, heading in from Bangladesh after 25th March, 1971, would be deported. There are an estimated 20 million illegal Bangladeshi migrants in Assam and they have inalienably altered the demography of the state, besides putting a severe strain on the state’s resources and economy.
Against Fundamental Rights:
Critics argue that it is violative of Article 14 of the Constitution (which guarantees the right to equality and is applicable to both the citizens and foreigners) and the principle of secularism enshrined in the preamble of the constitution.
Discriminatory in Nature:
India has several other refugees that include Tamils from Sri Lanka and Hindu Rohingya from Myanmar. They are not covered under the Act.
Difficulty in Administration:
It will be difficult for the government to differentiate between illegal migrants and those persecuted.
Hampering Bilateral Ties:
The Act throws the light on the religious oppression that has happened and is happening in these three countries and thus, may worsen our bilateral ties with them. Way Forward India has been a rich civilization. Therefore it is a novel effort to protect those who are prosecuted in its neighbourhood. However, the methods must be in accordance with the spirit of the Constitution. Thus, MHA should notify the CAA rules with utmost transparency and clear the apprehensions associated with CAA.
Source: TH
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