We Need For A Uniform Civil Code in India The Free Encyclopedia-India is not a Theocratic State-Which literally means Rule of law etc laid down by religion, where A state/Country conducts its affairs law and justice in accordance with religious edicts and tenets. o, while required to be Muslim, are not religious clergy. Sharia is the Official basis for State Laws in Iran, Mauritania, Saudi Arabia, Somalia, Sudan and Yemen. In Nigeria, the constitution provides that states may elect to use Shari’a laws and courts, though non-Muslims are not required in any state to submit to Shari’a jurisdiction and adherence varies by state Saudi Arabia maintains religious courts for all aspects of law and has religious police to maintain social compliance. Pakistan has Islam as its only official religion and its FederaL Shariat Court has the duty of striking down any law not complying with the Sharia Code of Islamic law; however, ruling falls upon legal scholars who, while required to be Muslim, are not religious clergy India is a secular and democratic country and we need to follow ‘Secularism’ and Democracy in letter and spirit and not to appease any community or religion for creating vote banks on the false premise and pursuit of nefarious political designs that State shouldn’t interfere with personal law of any religion and law and justice system of India in Marriage, ,Divorce, and Succession etc be governed by personal laws of respective religions be they Muslims, Christians, Parsis, Jews etc and this-I submit-is not correct -if we choose to adhere to true meaning of secularism and democracy as per the Constitution of India. As per Article 44- Chapter IV of Constitution of India (The Directive Principles of State Policy)- “The State shall strive to secure for the citizens of India a Uniform Civil Code throughout India.” In Jorden Diengdeh v S.S.Chopra, the Supreme Court has said: In the instant case, the marriage appears to have broken down irretrievably. If the findings of the High Court stand, there is no way out for the couple. They will not continue to be tied to each other since neither mutual consent nor irretrievably break-down of marriage is a ground for divorce, under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied. [717 B-C] Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in. It is necessary to introduce irretrievably break-down of marriage, and mutual consent as grounds of divorce in all cases. Coming back to the question “uniform civil code” we may refer to the earlier judgments of this Court on the subject. A Constitution Bench of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd Ahmed Khan v Shah Bano Begum1985 SC 945 held as under: “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made is the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.” “It was just the other day that a Constitution Bench of this Court had to emphasize the urgency of infusing life into Art. 44 of the Constitution which provides that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.” The present case is yet another which focuses.. on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case. Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, CJ in the recent case decided by the Constitution bench in Syed Ahmed Khan v Shah Bano Begum) One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law – personal law of the Hindus – governing inheritance, succession and marriage was given go- bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. The personal law of the Hindus, such as relating to marriage, succession and the like has all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil Code” for the whole of India. It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to “public morals”, even though some religion may make it obligatory or desirable for its followers. It can be superseded by the State just as it can prohibit human sacrifice or the practice of “Suttee” in the interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955). Political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mahomedans. The 1772 Regulations followed by the Regulations of 1781 whereunder it was prescribed that either community was to be governed by its “personal” law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation – Indian nation – and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasize that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The Successive Governments till-date have been wholly remiss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throughout the territory of India”. We further direct the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August, 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a “uniform civil code” for the citizens of India. Justice Sahai in Sarla Mudgal, President Kalyani And Others v Union of India and Others. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the Government in this respect. “Answering the questions posed by us in the beginning of the judgment, we hold that the second marriage of a Hindu- husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC and the apostate-husband would be guilty of the offence under Section 494 IPC. The question of law having been answered we dispose of the writ petitions. The petitioners may seek any relief by invoking any remedy which may be available to them as a result of this judgment or otherwise” Justice R.M. SAHAI, further observed in this case: “Considering sensitivity of the issue and magnitude of the problem, both on the desirability of a uniform or common civil code and its feasibility, it appears necessary to add a few words to the social necessity projected in the order proposed by esteemed Brother Kuldip Singh, J. more to focus on the urgency of such a legislation and to emphasise that I entirely agree with the thought provoking reasons which have been brought forth by him in his order clearly and lucidly. The pattern of debate, even today, is the same as was voiced forcefully by the members of the minority community in the Constituent Assembly. If, `the non-implementation of the provisions contained in Article 44 amounts to grave failure of Indian democracy’ represents one side of the picture, then the other side claims that, `Logical probability appears to be that the code would cause dissatisfaction and disintegration than serve as a common umbrella to promote homogeneity and national solidarity’. When Constitution was framed with secularism as its ideal and goal, the consensus and conviction to be one, socially, found its expression in Article 44 of the Constitution. But religious freedom, the basic foundation of secularism, was guaranteed by Articles 25 to 28 of the Constitution. Article 25 is very widely worded. It guarantees all persons, not only freedom of conscience but the right to profess, practice and propagate religion. What is religion? Any faith or belief. The Court has expanded religious liberty in its various phases guaranteed by the Constitution and extended it to practices and even external overt acts of the individual. Religion is more than mere matter of faith. The Constitution by guaranteeing freedom of conscience ensured inner aspects of religious belief. And external expression of it were protected by guaranteeing right to freely, practice and propagate religion. Reading and reciting holy scriptures, for instance, Ramayana or Quran or Bible or Guru Granth Sahib is as much a part of religion as offering food to deity by a Hindu or bathing the idol or dressing him and going to a temple, mosque, church or gurudwara. Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith. Going round the fire seven rounds or giving consent before Qazi are as much matter of faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or a Mulsim becomes Hindu by reciting certain Mantras it is a matter of belief and conscience. Some of these practices observed by members of one religion may appear to be excessive and even violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram Mohan Rai who single handed brought about that atmoophere which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully, the Hindu Succession Act and Hindu Marriage Act revolutionising the customary Hindu Law. The desirability of uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change. The problem with which these appeals are concerned is that many Hindus have changed their religion and have become convert to Islam only for purposes of escaping the consequences of bigamy. For instance, Jitendra Mathur was married to Meena Mathur. He and another Hindu girl embraced Islam. Obviously because Muslim Law permits more than one wife and to the extent of four. But no religion permits deliberate distortions. Much misapprehension prevails about bigamy in Islam. To check the misuse many Islamic countries have codified the personal Law, `Wherein the practice of polygamy has been either totally prohibited or severely restricted. (Syria, Tunisia, Morocco, Pakistan, Iran, the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context’. But ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. `But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression’. Therefore, a unified code is imperative both for protection of the oppressed and promotion of national unity and solidarity. But the first step should be to rationalise the personal law of the minorities to develop religious and cultural amity. The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about the comprehensive legislation in keeping with modern day concept of human rights for women. The Government may also consider feasibility of appointing a Committee to enact Conversion of Religion Act, immediately, to check the abuse of religion by any person. The law may provide that every citizen who changes his religion cannot marry another wife unless he divorces his first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or a Jain or a Budh. Provision may be made for maintenance and succession etc. also to avoid clash of interest after death. This would go a long way to solve the problem and pave the way for a unified civil code. Aditya Thankur, a Law Scholar in his article on “Top seven reasons why India Needs a Uniform Civil Code?”Published in Himachal Pradesh Hill Post dated 19-8-2013 opined that for promoting real Secularism, Equality, More Rights to Women, bringing India on par with other modern nations , to bridge the loopholes in Personal Laws, reducing vote bank politics and for National integrity a Uniform Civil Code is a must. Abhinav Prakash Singh -a Research Scholar, in Economics, in JNU in his commentary on “Uniform Civil Code-Examining The Basis of Secular Opposition”- had felt that “The UCC is required in India for the ensuring the equal rights and equal treatment before law for every citizen without any conditions. The aim is not to dismantle religious rituals or concerns but to vest individuals with the liberty and power to challenge discrimination and reverse regressive trends in the name of religious concerns. At present rights, especially women rights are located in their own cultures that prohibit their equality and liberty. We wish to reform those spheres that perpetuate this discrimination, and the reform can only take place through UCC. The UCC is required in India for the ensuring the equal rights and equal treatment before law for every citizen without any conditions. The aim is not to dismantle religious rituals or concerns but to vest individuals with the liberty and power to challenge discrimination and reverse regressive trends in the name of religious concerns. At present rights, especially women rights are located in their own cultures that prohibit their equality and liberty. We wish to reform those spheres that perpetuate this discrimination, and the reform can only take place through UCC. According to Dr.Ambedkar, Legal Luminary and one of the founders of the Indian Constitution in his Constituent Assembly speech had said: “Personally, I do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights.” CONCLUSION: In view of the foregoing discussion, I strongly opine that to secure real liberty, equality, secularism and Gender Justice, Democracy and to empower Indian Women in social, economic and political fields etc, we must eschew pseudo secularism and enact a Uniform Civil Code conferring equal rights on Women of all hues in India- irrespective of their religions, in matters of Marriage, Divorce and inheritance/property rights etc and forthwith remove the highly discriminatory personal laws in these spheres as ultimately-It is the Indian Constitution alone that is binding on all Indians and not the heavily skewed personal pseudo secular, undemocratic personal laws- Which do nothing but please few Mullahs and and other patriarchs of the respective religions. Let us, altogether avoid playing vote bank politics and cleanse the system by bringing UCC and promoting real secularism and avoid divisive and fissiparous tendencies. Pandering to religious sentiments for the sake of narrow political gains at all costs should be avoided. Hence, attaing National Integration through enacting UCC must be our immediate goal.
Posted on: Sat, 31 May 2014 11:43:14 +0000
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