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CERTIFICATE
This is to certify that the project submitted by Pratibha Elin Lakra, student of B.A. LL.B (Hons.), Indore Institute of Law (affiliated by DAVV University) is a record of work done under my supervision.
This is also to certify that this project is an original project submitted as a part of the curriculum and no unfair means like copying have been used for its completion. All references have been duly acknowledged.
Faculty: Asst. Prof. Shilpa Singh
ACKNOWLEDGEMENT
I Pratibha Elin Lakra Student of 3 st^ semester BA.LL.B(Hons.) would like to express my special
thanks of gratitude to my Professor and guide Shilpa Singh Ma’am, who gave me the golden opportunity to do this wonderful assignment of Human Rights on the topic - “UNIFORM CIVIL CODE: Sweeping away communal segregation”.
I express my heartfull indebtness and gratefulness to my teacher for guiding me and providing the relevant information and thus helping me to complete the project successful.
I would also like to give a heartily thanks to my Seniors who helped and supported me in completion of this assignment without any type of problem.
I also thanks all my friends for helping me in every possible manner in the way of completion of my project. I will always be indebted to them.
The study has indeed helped me to explore more knowledge avenues related to my topic and I am sure it will help me in my future.
Thank You
Pratibha Elin Lakra
DECLARATION
I certify that this work contains no material which has been accepted for the award of any other degree or diploma my name, in any university or other tertiary institution and, to the best of my
taking initiative for its enforcement. In this research paper, the researcher will be primarily dealing with the concept of Uniform Civil Code and its dimensions, the approximation of the judiciary and the progressive draft of Uniform Civil Code. The research paper shall attempt to establish the judiciary’s acknowledgement of the complex web of personal laws in India and its attempt to filter them into the realm of uniform acceptability. The important question is whether after 72 years of the constitution India is ripe enough to have a uniform set of civil law has been raised yet again? This paper tries to study the entire digit around the UCC so as to ascertain the extent to which the question of nation can be addressed. The need of the hour is to enact UCC but that should be done slowly and gradually, after making the people aware of its scope and extent. The question is that, is time ripe to implement UCC in India? If India can reach to its far- reaching unity? If India can proclaim its national integrity all over the world? This research paper basically aims to spread knowledge and make the readers inquisitive about the uniform civil code.
Keywords: Uniform Civil Code, Personal laws, Secularism, approach of judiciary, gender equality, Progressive uniform civil code.
TABLE OF CONTENT
CHAPTER-1..................................................................................................................................
Introduction
CHAPTER-2……………………………………………………………………………………..
Uniform Civil Code: Meaning
CHAPTER-3…………………………………………………………………………………….. UCC: A struggle with Personal Laws CHAPTER-4……………………………………………………………………………………. UCC and the secular nation CHAPTER-5……………………………………………………………………………………. UCC: In the perspective towards gender justice CHAPTER-6……………………………………………………………………………………. UCC: Approximation of the judiciary CHAPTER-7……………………………………………………………………………………. The progressive uniform civil code draft CHAPTER-8……………………………………………………………………………………. Conclusion
CHAPTER-
INTRODUCTION
India is a secular state having multiplicity of personal laws. There are different laws for every religion. For example, the Christians in India have their Indian marriage act 1872, the Indian Divorce Act and the Cochin Christian Succession Act. The Parsis have their different law which is the Parsis marriage and the divorce act 1936, the succession act and the inheritance act.
Talking about the Hindus and the Muslims, they have their different and separate laws for their governance from the rest of the religions. The Hindus have their own the Hindu marriage act
demand of the uniform civil code is unifying the citizen of India under one set of secular law which deals with these aspects.
In a country like India, uniform civil code is proclaimed to be the biggest element in leading to the far-reaching equality it needs and would repress the evils that the country contaminates.
UCC was first taken into discussion when the constitution was being drafted in 1948. It was Dr. B.R. Ambedkar who suggested to the people in the parliament to have UCC for the utmost unity in the country. It was envisaged to come out as a miraculous cure in eliminating the social problem that the country was facing. It was at that time when there held an intense scrutiny during the constituent assembly meets. It was opposed by many members of the parliament especially the Muslim members who were defensive against their personal laws that were to be drafted 2.
It has been more than 70 years now and yet we are unable to attain unity within our country. We are unable to attain the sophistication and the constitutional mandate. And the simple reason that is often hear even though we talk about having peace and harmony and unity and brotherhood in the country, amongst the people of the country, but when we talk about the relationship between the Hindus and Muslims we are likely to be dragged back at the time of bloodshed wars between the two of them and the hatred and enmity prevails to continue now.
So now, the basic factors that hinders the implementation of the UCC rests onto the religion or say the personal laws majorly, the secularism of the nation, the minority groups of the society and also importantly the gender justice. Let us now understand all the possible factors which are mentioned above.
CHAPTER-
UCC: A STRUGGLE WITH PERSONAL LAWS
Under this chapter, we will be focusing more on the problems and struggle of UCC which it is dealing with the interference of personal laws of the Hindus and the Muslims.
Let us begin with the Muslims personal laws.
2 http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=98057, visited on 10june2018.
Arif Mohammad Khan, the former cabinet minister of the union of India at the time of Rajiv Gandhi’s cabinet, quoted some facts in the NDTV debate 3 , from the book of Maulana Maududi, who was the founder of the Jamat-e-Islami, which is a part of the Muslim law board. Maulana in his book says, “The law named as mohammaden law, both in is format and in its spirit is different form Islamic shariat and its application does not deserve to be described as enforcement of Islamic laws”. The question that arises here is whether the Islam or the Quran allow the All India Muslims Personal Law Board to make distinction between the personal laws, the civil laws, the mercantile laws etc? As far as the religious interference is concerned, the shariat has a very clear law on the criminal aspects but still they have accepted the uniform criminal laws in India. In Australia, the Muslims have accepted the civil law of the nation. Then why are they not accepting uniform civil law in India? What is the reason for their unnecessary rebel? Now coming to the Hindus personal laws. If you are a Hindu, you might be aware of what counts as an essential ceremony for the people of this religion. These ceremonies and customs vary from place to place and community to community. This is very complex and confusing. According to the Hindu marriage act 1955, either the partly concerned has to plead customary rite and ceremonies or that the two essentials of the marriage ceremonies, marriage has completed, namely the invocation before the sacred fire and the saptapadi 4. Many women are not aware of the ceremonies applicable to them. She may happily exchange garland, put vermillion and have her husband declare her wife as god as witness without realizing that this is not a valid marriage under law since these are only mock ceremonies. This undue stress on ceremonies has let many persons accused of bigamy go scot free. Discrimination in property is still a problem under section 15(1) of the Hindu Succession Act. In the event of women’s death, the husband heirs get a preference above her own parents. But when a man dies, his relative gets to inherit his property and not his wife. This is a clear violation of the equality guaranteed under Article 15(1) of the constitution of India.
3 The Big Fight Debate, NDTV, 19 th^ July 2014 4 Asha Bajvai, How Hindu Personal Can Be Reformed, September 18 2017, https:// timesofindia.indiatimes.com/india/how-hindu-personal-law-can-be-reformed/articleshow/60726036.cms
As a matter of facts according to a book published by the AIMPLB 8 , it was clearly mentioned that a divorce conveyed to the wife by the third person and not his husband was legal, a divorce written on some random paper somewhere without getting it into the wife’s knowledge was legal, pronouncing divorce in zest was legal and divorce under compulsion or duress was also legal. The SC has given us the absolutely apt decision which resulted and would in future result in the betterment of the Muslim women.
This was just a part of what was going on with personal laws.
CHAPTER-
UCC AND THE SECULAR NATION
India is probably the only country wherein the concept of secularism is most perverted both in principle and practice. Secularism in simple term means separation of state and religion i.e. religious concerns will not dictate state policies and the state will not interfere in religious activities.
Secularism was thus, a unique solution in response to unique challenges prevalent in western civilization in general 9. The concept of secularism is hard to define and nevertheless its understanding is essential. The concept is not static and varies for time to time. Each age, each nation had to engage in quest with itself.
Let’s take the example of religious institutions like places of worship of various religions. Various state governments have taken control over many Hindu temples and are earning crores of rupees from them. This is a clear violation of secularism, which mandates no interference of government in religious activities. Out of the crores that these state governments are earning, only a small fraction of amount is set aside for the maintenance of the temples and the rest lies with the state coffers. How is it secularism?
The gist is the perversion of secularism which has resulted in non implementation of UCC, has not done well to anyone. Ideally, India should have evolved an indigenous social and legal system rooted from righteous duty and Indian civilization. But since we have already imported
8 All India Muslims Personal Law Board 9 India facts, secularism and uniform civil code, 12th^ June 2018, 08:16 p.m http://indiafacts.org/ secularism-uniform-civil-code/
an alien system of secularism it would do us good if we remove the prevalent perversion and implement it in its true sense by enacting a fair uniform civil code 10.
It was once said by the opposition leader in Kerala, Ramesh Chinnithala that “Uniform civil code is a threat to secularism and unity being upheld by the people of the country” 11.
Without the UCC, calling a nation secular is like calling someone poor living below the poverty line a millionaire. A poor man doesn’t become rich and well off even if the government insists and passes a law to call him a millionaire and if his neighbors and others do the same. Thus, there is no sense in calling or characterizing a poor man as a millionaire. Similarly, there is no sense or justification in the case of a nation which without having a UCC and even while multiple religions based laws and legal system calls and considers itself secular especially according to its constitution.
CHAPTER-
UCC: IN THE PERSPECTIVE TOWARDS GENDER JUSTICE
UCC is all about secularism and equality. The preamble of the Indian Constitution talks about the Indian states being secular and Article 15 of the Indian Constitution provides statutory provisions for the existence of equality.
Now, when we talk about Gender justice in general, it means social, political and economic justice for both women and men. It suggests the abolition of the patriarchal system that has infused within the system. Gender justice is indispensable for development in a true sense. Article 15(1) of the Indian Constitution says, the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. This article is the embodiment of the two elements of the preamble i.e. secularism and equality.
However, world history is evidence to the fact that one of the most neglected ideas has been that of women’s rights. This statement is a testimony to the fact that equality without gender justice is no equality at all.
10 Nitin Sridhar, ucc and secularism, 12 th^ June 2018, 10:35 indiafacts.org/secularism-uniform-civil-code/ 11 Uniform Civil Code a threat to secularism: UDF, the Indian Express, July 3 2016http://indianexpress.com/ article/india/india-news-india/uniform-civil-code-a-threat-to-secularism-udf-2891327/
This judgment of the court has aroused the hope that one of the greatest evil of the Indian Society will be removed. But, unfortunately while a hearing of an appeal filed by one of the accused in the above case, clarified that its direction was only an Obiter Dicta and not legally binding on the government.
The seemingly inheriting contradiction between gender justice and personal laws particularly the Muslim personal law compels one to study the impugned provisions. Instantaneous triple talaq, Nikah Halala and polygamy has been subject to widespread controversy.
Getting to the personal laws, In the matter of divorce the position of Muslim women is the most inferior and insecure compared to others. Particularly, the method of divorcing a wife by the husband by pronouncing triple talaq is highly discriminatory.
Even though the Hindu law is codified certain discriminatory provision still exists even today. For example. A Hindu woman is not a coparcener in Hindu coparcener except in a few states like Andra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Consequently, she is not entitled to claim a share in the coparcenaries. Similarly she has no write to partition of a dwelling house even though she is a legal heir. Thus it is obvious that the codification of personal laws of Hindus is not succeeded completely in eradication gender inequality. And so these personal laws can be called Anti-women.
The judiciary in India has taken note of the injustice done to the women in the matter of many personal laws. It has been voicing its concern through the number of judgments indicating the necessity to have uniformity in the personal matters of all citizens.
Hence, it’s the implementation of UCC that would eliminate the gender inequality and would ensure equal rights for men and women in the marriages, divorces, succession, inheritance and adoption matters.
CHAPTER-
UCC: APPROXIMATION OF THE JUDICIARY
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 14. The SC held that the Muslim
14 Supra 6
women has the right to claim maintenance from her husband under section 125 of the code of criminal procedure. The court also held that Article 44 remained a dead letter. The then CJI Y.V. Chandrachud observed that “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.”
After this decision, nationwide discussions, meetings and agitation were held. The then Rajiv Gandhi led government overturned the Shah Bano case decision by way of Muslim Women Act 1986 for maintenance under section 125 of CrPC. The explanation given for this implementation was that the SC had merely made an observation for enacting the UCC; not binding on the government or the parliament and that there should be no interference with the personal laws unless the demand comes from within.
In Mary Roy v. State of Kerala 15 , the question argued before the SC was that certain provisions of the Travancore Christian Succession Act 1916 were unconstitutional under Art. 14. Under this provision, on the death of an intestate, his widow was entitled to have only a life interest terminable at her death or remarriage and his daughter. It was argued that the Travancore Act had superseded by the Indian Succession Act 1925. The SC avoided examining the question whether gender inequality in matters of succession and inheritance violated Art.14 but nevertheless ruled that the Travancore Act had superseded by the succession act and Mary Roy has been characterized as a momentous decision in the direction of ensuring gender equality in the matter of succession.
Finally the SC has issued a directive to the Union of India in Sarla Mudgal v. Union of India to endeavor framing a uniform civil code and report to it by august 1996 the steps taken. It is however to note that the SC expressed in Lily Thomas case that the directives as detailed in part IV of the constitution are not enforceable in courts as they do not create any justifiable rights in favour of any person.
Then it was in July 2003 when the SC reminded the government of its constitutional obligations to enact a UCC when a Christian priest knocked the doors of the court challenging the constitutional validity of section 118 of the Indian Succession Act.
The latest invoking of Art. 44 were when the SC gave its judgment in the case of triple talaq stating the triple talaq as unconstitutional.
15 1986 AIR 1011, 1986 SCR (1) 371
When it comes to question the desirability of the uniform civil code, I strongly believe that there is a need of uniform civil code to be introduced and this opinion is strongly opined by the reasons listed below:
- First of all is that it will pave the way for national integration.
- Though its enactment would have high chances of massacre but will eventually lead to utmost unity.
- It will promote gender justice. Especially for the women in India, it would come up as a lifelong boon.
- Also it will help to remove the loop holes present in the personal laws.
- It would ensure no discrimination in the basis of religion.
- It would avoid the overlapping provisions of law.
- And lastly, it would defeat communalism and diversionist forces in the Nation.
A UCC sets the precedent for attaining true equality and egalitarianism. It will help in integrating India more than it has ever been since independence. It will not only raise the bar of the legal system but also help in the progress of India as a Nation. The UCC is necessary because personal laws are inconsistent with our declaration “To constitute India into Socialist, Secular, Democratic Republic” and it is almost impossible to achieve the golden goal in the preamble of the Indian constitution without the UCC.
Times have changed, societies have changed and it is the high time that the laws change. The UCC will not only change the entire perception of how families are governed but also change the lives of millions by filling the lacunas in various religious laws.
As Y. C. Chandrachud, rightly remarked, a common civil code will also help in strengthening the cause of national integration by removing conflicting interests.
