Stating that the Uniform Civil Code “is a necessity and mandatorily required today” the Allahabad High Court has called upon the Central government to forthwith initiate the process for its implementation.
GS-II: Polity and Governance (Constitutional Provisions, Government Policies and Initiatives)
Dimensions of the Article:
- What is Uniform Civil Code (UCC)?
- Positive aspects of Uniform Civil Code include
- Challenges in Implementing Uniform Civil Code Include
- Does India not already have a uniform code in civil matters?
- Is there one common personal law for any religious community governing all its members?
- How does the idea of a Uniform Civil Code relate to the fundamental right to religion?
What is Uniform Civil Code (UCC)?
- The Uniform Civil Code (UCC) in India proposes to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen.
- The constitution has a provision for Uniform Civil Code in Article 44 as a Directive Principle of State Policy which states that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
Article 44 is one of the Directive Principles of State Policy. These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
Fundamental Rights are enforceable in a court of law. While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
Article 43 mentions “state shall endeavour by suitable legislation”, while the phrase “by suitable legislation” is absent in Article 44. All this implies that the duty of the state is greater in other directive principles than in Article 44.
Positive aspects of Uniform Civil Code include
- UCC will divest religion from social relations and personal laws and will ensure equality in terms of justice to both men and women regardless of the faith they practice.
- There will be uniform laws for all Indians with regard to marriage, inheritance, divorce etc.
- It will help in improving the condition of women in India as Indian society is mostly patriarchal
- Informal bodies like caste panchayats give judgements based on traditional laws. UCC will ensure that legal laws are followed rather than traditional laws.
- It can help in reducing instances of vote bank politics. If all religions are covered under same laws, politicians will have less to offer to communities in exchange of their vote.
Challenges in Implementing Uniform Civil Code Include
- Implementation of UCC might interfere with the principle of secularism, particularly with the provisions of Articles 25 and 26, which guarantee freedom relating to religious practices.
- Conservatism by religious groups, which resist such changes as it interferes with their religious practices.
- It is difficult for the government to come up with a uniform law that is accepted by all religious communities. All religious groups- whether majority or minority have to support the change in personal laws.
- Drafting of UCC is another obstacle. There is no consensus regarding whether it should be a blend of personal laws or should be a new law adhering to the constitutional mandate.
Does India not already have a uniform code in civil matters?
- Indian laws do follow a uniform code in most civil matters — Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act, etc.
- States, however, have made hundreds of amendments and, therefore, in certain matters, there is diversity even under these secular civil laws. Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
- If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List. But “personal laws” are mentioned in the Concurrent List.
- In 2020, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.
Is there one common personal law for any religious community governing all its members?
- All Hindus of the country are not governed by one law, nor are all Muslims or all Christians. Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
- In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments. The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed. Muslims of Kashmir were thus governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
- Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in West Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
- In the Northeast, there are more than 200 tribes with their own varied customary laws.
- The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Even reformed Hindu law, in spite of codification, protects customary practices.
How does the idea of a Uniform Civil Code relate to the fundamental right to religion?
- 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. An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights.
- In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter.
- The matter was settled by a vote. By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held that the provision was outside the scope of Fundamental Rights and therefore the Uniform Civil Code was made less important than freedom of religion.
-Source: The Hindu