The Uniform Civil Code (UCC) is the sign of modern progressive nation, which shows that the nation has moved away from religion, race, caste, sex and place of birth discrimination. While our economic growth has been the highest in the world, our social growth has not happened at all. Socially and culturally, we have degraded to a point where we are neither modern nor traditional. Secularism means that citizens have to follow uniform civil code whether they are Hindus, Muslims, Christians, or Sikhs.
UCC doesn't limit people's religious freedom
UCC does not limit the freedom of people to follow their religion; it means every person must be treated equally. Most of the personal laws have bias against rights of women such as Unilateral Oral Talaq in Muslim law, Restitution of Conjugal Rights issue in Hindu law and limited property rights of women in Christian Law. Bias is not only against women but also operates against men.
Other than Hindu Marriage Act, no other personal law provides alimony to husband from wife, even the gender-neutral Acts such as Special Marriage Act and Foreign Marriage Act do not have provision for the husband to demand alimony from his wife. Similarly, personal laws don't allow for inter-religion marriages, thus are divisive in society. Personal Laws confer unconstitutional benefits - Hindus get tax exemption under Hindu Undivided Family and Muslims need not register gift deeds thus saving stamp duty. These benefits are entirely based on religion and hence unconstitutional.
Article 44 of the Indian Constitution says: "The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India."
Significance of Shah Bano case
The conflict between secular and religious authorities over the issue of UCC eventually decreased, until the Shah Bano case. In 1985, the Supreme Court ruled in Shah Bano's favour under the provision of section 125-CrPC, which applied to all citizens irrespective of religion. ShahBano case soon became nationwide political issue and a widely debated controversy.After the 1984 anti-Sikh riots, minorities in India, with Muslims being the largest, felt threatened with the need to safeguard their culture. All India Muslim Personal Law Board defended the application of their laws and supported the Muslim conservatives, who accused the government of promoting Hindu dominance over every Indian citizen at the expense of minorities.
Section 125 of the CrPC was seen as a threat to the Muslim Personal Law and Muslim personal law board members started a campaign for complete autonomy in their personal laws. It soon reached at national level, by consulting legislators, ministers and journalists. The Union government, which previously had orthodox Muslims' support, lost the local elections in December 1985, because of its endorsement of the Supreme Court's decision in Shah Bano case.An independent MP proposed a private member bill to protect personal law in the parliament. Congress reversed its position and supported the bill while the Right, Left, Muslim liberals and Women's organizations strongly opposed it.
The Muslim Women's (Protection of Rights on Divorce) Act was passed in 1986 and it made Section 125 of the CrPC inapplicable to Muslim women. In the Shah Bano case, the Supreme Court said: "A UCC will help the cause of national integration by removing disparate loyalties to personal laws which have conflicting ideologies". In SR Bommai case, the apex court observed that: "Religion is the matter of individual faith and can't be mixed with Secular activities."
Sarla Mudgal case
In Sarla Mudgal case, the Supreme Court said; "It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments - which have come and gone - have so far failed to make any effort towards unified personal law for all Indians. When more than 80% of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of Uniform Civil Code for all citizens in India".
The apex court further observed: "It is not matter of doubt that marriage, succession and like matters of secular character can't be brought within the guarantee enshrined under Article 25 and Article 26 of constitution". Court also cautioned that any legislation, which brought succession and like matter of secular character within the ambit of Article 25 and Article 26 is a suspect legislation.
On July 23, 2003, the Supreme Court struck down Section 118 of the Indian Succession Act and said; "We would like to state that Article 44 provides that the state shall endeavour to secure for its citizens a uniform civil code throughout the territory of India. It is matter of great regret that Article 44 of the constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. It will help the cause of national integration by removing the contradictions based on ideologies."
Arguents on the issue
Politicisation led to argument having two major sides: the Congress and Muslim conservatives versus the Right wing and the Left. The legal reversal of introducing the Muslim Women law significantly hampered nationwide women's movement in 1980s.
The debate for the UCC, with its diverse implications and concerning secularism in the country, is one of the most controversial issues in 21st century. Major problem for implementing the UCC is country's diversity and religious laws, which not only differ section-wise, but by community, caste and region-wise. Women's rights groups have said that UCC is based on their rights and security, irrespective of its politicization.
The BJP was the first party to promise the UCC if elected into power. Presently Goa is the only state, which has the UCC. Declaration was made in United Nation General Assembly, known as the 'Right to Development'; discussed the inconsistency between the personal laws and fundamental human rights and stated that all personal laws should be in conformity with fundamental human rights. Former President Dr. APJ Abdul Kalam strongly supported the UCC.
Recently, the apex court said: "This cannot be accepted, otherwise every religion will say it has a right to decide various issues as matter of its personal law. We don't agree with this at all. It has to be done through a decree of a court". Bharatiya Muslim Mahila Andolan released survey report of ten states and revealed that 90% of Muslim women, want ban on unilateral oral divorce and polygamy. 88.5% women want action against the cleric for sending notice of oral divorces.
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 goals as set out in the Preamble of the Constitution without the UCC. Marriage, divorce, maintenance, inheritance, adoption matters are of secular nature and can be better regulated by the UCC. Different personal laws for different communities creates unnecessary burden on the legal system.
Bringing the UCC would reduce and help in simplifying many technicalities and loopholes, present in existing personal laws. UCC was the dream of our constitution makers. The Government should draft a Common Civil Code with the opinion of Law Commission, National Human Right Commission, National Commission for Women, Former Attorney Generals, Solicitor Generals and Judges of the Supreme Court and must implement the UCC in spirit of the Article-44 of the Constitution on priority.
(The writer is spokesperson of Delhi BJP and an Advocate in the Supreme Court)