Uniform Civil Code- A Threat to Pluralistic Fabric of India.

Uniform Civil Code- A Threat to Pluralistic Fabric of India.

 

By Monisha Jogan B

 

ABSTRACT

India is a land where thrive multiple religions with their own characteristic of personal intercourse ranging from marriage to inheritance of multicultural diversities. India being a secular country guarantees its minorities the right to follow their own religion, culture and customs under Article 29 and 30. Its identity has never been exclusive or homogeneous. The idea of India or Bharat lies in its diversity, pluralism, inclusivity and many-ness. It is time people reaffirmed their belief in these ideals and spoke out to stop reactionary elements from seeking to cast the great Indian civilisation in one mould.

Uniform civil code is the constitutional mandate to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen. This article would bring about the contentions that the implementation of Uniform Civil Code would be a disaster for India affecting its multicultural Fabric and the beliefs of communities. This article analyzes the judicial interpretation in leading cases in implementation of Uniform civil code, its making, ambit, enactment etc which emerged as the most promising issue of the time. It would also reflect the Constitutional provision of India, which talks about uniformity of law in order to secure the interest of the citizen. The article critically analyzes future perspective of Article 44 as well as threats attached with bringing such law in a democratic country like India.

Uniform Civil Code Will Be a Disaster For India

.Uniform Civil Code will be detrimental to the Communal harmony of India and will be against the ethos of religious freedom Article 44 of the Directive Principles sets its implementation as duty of the State. Apart from being an important issue regarding secularism in India, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed since 1937, permitting unilateral divorcepolygamy in the country and putting it among the nations legally applying the Sharia law. The Bano case made it a politicised public issue focused on identity politics—by means of attacking specific religious minorities versus protecting its cultural identity. In contemporary politics, the Bharatiya Janta Party and the Justify support it while the Congress Party and All India Muslim Personal Law Board oppose it.

Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenanceGoa has a common family law, thus being the only Indian state to have a uniform civil code. The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law.

Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere. The demand for a uniform civil code was first put forward by women activists in the beginning of the twentieth century, with the objective of women’s rights, equality and secularism. Till Independencein 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. In 1956, the Indian Parliamentpassed Hindu Code Bill amidst significant opposition. Though a demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition.

MULTICULTURISM AND ETHICS IN INDIA

I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth” says Swami Vivekananda while introducing himself in Chicago.[1]

India perhaps has one of the most diverse and multicultural societies in the world today with over 400 spoken languages and over a 100 different communities of people based on language, religion and caste multiculturalism is woven in the fabric of India. The country has been a home to foreigners for many centuries. It had been invaded by Muslim forces as early as the seventh century ad, and since the early 1300’s, the south-eastern portion of India, the Rajput, was dominated by the Dehli sultan, a Turkish invader. European settlers landed in Kollam, Kerala as early as the 16th century.

Zoroastrianism and Judaism also have an ancient history in India and each has several thousand Indian adherents. According to the 2008 census, Hinduism accounted for 80.5% of the population of India. Islam (13.4%), Christianity (2.3%) and Sikhism (1.9%) are the other major religions followed by the people of India. Thus we see that the diversity of religious belief systems existing in India today is a result of, besides existence and birth of native religions, assimilation and social integration of religions brought to the region by traders, travelers, immigrants, and even invaders and conquerors. For years there has been a debate if whether this multi cultural system is advantageous or not and still remains an open debate.

India has had her fair share of communal indifferences with innumerable riots and violence. Perhaps the most infamous being the *2002 Gujarat violence* which was sparked off by the Godhra burning and resulting communal riots between Hindus and Muslims on 27 February 2002 at Godhra city in the state of Gujarat, a train was forcibly stopped and attacked by a large Muslim mob as a result, 58 Hindu pilgrims mostly women, children and seniors returning from the holy city of Ayodhya were burned alive. The attack prompted retaliatory massacres against Muslims on a large scale. There have been recent cases of disharmony as well with many different sects calling for partition and separate recognized states or territories.

The advantages of a multicultural society are not evident currently in India. As of now the horrors of communal violence and religious intolerance has torn apart a country rich in culture and heritage. The Ayodhya issue, a 60 year dispute between Hindus and Muslims over claims of religious land in Uttar pradesh ended peacefully in 2010. The supreme court pronounced that the land be divided between the two communities. The decision was met with peaceful demonstrations and majority of the public accepted the decision. Instances such as this give us hope that we may move towards a more tolerable society and reap the benefits and advantages of multiculturalism.

Article 44 says the state shall work towards securing a uniform civil code across the country replacing personal laws of various religious communities. The provision is a part of the Directive Principles of State Policy that are not enforceable by any court. Law Commission of India recently took the initiative to invite public opinion on the issue. But many Muslim groups, including the All India Muslim Personal Law Board (AIMPLB) have opposed it. Several Muslim women have moved the Supreme Court seeking to declare the practice of triple talaq, polygamy and nikah halaha unconstitutional. Under nikah halala, a woman can remarry a divorced partner only after she consummates a marriage with someone else.

The notion that only Muslims are opposed to UCC is baseless. UCC is equally disadvantageous for other minorities, and also for a good number of Hindu castes. Hindus will not like their cultural and customary laws being annulled. It will only create conflicts and disputes among them. The Christian Catholics will not accept it as they strictly adhere to the Canon Law concerning marriage that is recognised as the personal law of Catholics in India. Muslims will never accept UCC at any cost and will protest against it. Such attempts to restrict religious freedom of Muslims will not be endured by Muslim leaders and religious scholars and they will challenge it with all their might.

UCC– Threat to Pluralistic Fabric of India

It is during the per-Independence period that Personal laws came into existence, majorly for Hindu and Muslim citizens. But with an objective to gain and promote women’s rights, equality and secularism, Uniform Civil Code was demanded in the 20th century by women activists. India being a secular country guarantees its minorities the right to follow their own religion, culture and customs under Article 29 and 30. But implementing a Uniform Code will hamper India’s secularism. It is not only a Hindu-Muslim debate but involves other religious minorities as well. The Supreme Court of India had earlier pointed out that discrimination in issues like marriage, divorce and inheritance may not be a good practice. It also said that there is a “total confusion” when comes to personal laws governing religious practices. The implementation of UCC was a part of BJP’s 2014 election manifesto as well. The party promised it will implement it if it comes to power.

Article 44 of the Directive Principles of the Constitution sets implementation of the Uniform Civil Code as duty of the state. The Ministry of India, having regard to the importance of the subject matter and sensitivity involved, and requiring in-depth study of the provisions of various personal laws governing different communities, the same has been referred to the Law Commission for a detailed examination of various issues relating to the Uniform Civil Code and to make recommendations thereof.

The Uniform Civil Code is a noble but not necessary concept. The current situation is not fit to introduce such a concept of UCC as the code of conduct, rituals, beliefs and even dress and food is governed by religion. It will only bring chaos. If a need arises as a must to implement UCC then it could only be allowed if people of the nation are well educated who have the decision-making power.

THE UNTOUCHED MUSLIM LAWS

Article 44 of the Constitution, which discusses a uniform common code for all Indians, was the subject of a current civil argument to the point that it can possibly join India since Hindus and Muslims had taken after the “common customary Hindu civil code” easily until 1937 when “the Muslim League-British combine” divided them by imposing Sharia on Muslims through the Muslim Personal Law (Sharia) Application Act. Warren Hastings had proclaimed in 1772 that:

“…that in matters of inheritance, marriage and other such religious affairs “the laws of the Koran with respect to the Mahomedans and those of the Shastra with respect to the Gentoos [Hindus] shall be invariably adhered to…[2]

Notwithstanding when the Indian Penal Code was enacted in 1860, Muslim personal laws were justify untouched. The Personal Laws were never looked to be brought together and the reason was not that the Britishers dreaded for the massive explosion but they were sufficiently skilful to handle such circumstances. When Hindu marriage law was made, polygamy among the Hindus were prohibited over all sects and groups, the child marriage restriction Act and recommending least age of 18 for young girls among Hindus has reduced child marriage, the crime wasn’t eradicated but was ignored. The statistics says that the implementations of these Personals laws where nowhere in it strict applications. Thus there exists no need of Uniform Civil Code but rather consistency of rights crosswise over various religions community keeping the essence of “religious belief”. This in turn requires “Reform from Within” similarly Hindu law was reformed, the Christian Law was improved and the Muslim law has been reformed without conjuring any major political debate.

JUDICIAL INTERPRETATION

The Supreme Court in a couple cases has for sure mentioned some stray observations throughout the years about the codes appeal however; they don’t frame restricting precedent obiter dicta for reference. Its observations prove that UCC is of no importance or incentive to the position of law. The courts have gotten a handle on the trouble and impracticability of UCC as a rule and forewarned against its rushed reception. As late as 2015, the Supreme Court declined to pass bearings on UCC and laid that activity at the door of Parliament. A few judges may in any case consider the possibility of UCC compelling to swim through the entanglement of legal pluralism however; they overlook that uniformity while implementing the laws over personal law is not a sociological fact. In the much-talked-about Shah Bano case[3] the Supreme Court held that Section 125 of the Code of Criminal Procedure (Cr.P.C.), being a secular provision was applicable to all.

The Supreme Court connected the teaching of harmonious construction and understood the authorization particularly in accordance with its Shah Bano judgment. The position, consequently, is that a Muslim woman is qualified for reasonable and sensible maintenance under Section 125 of the Cr.P.C. insofar as she stays unmarried after the separation. Many Petitions were filed in Supreme Court on various events in regards to Uniform Civil Code, however it has declined by saying that parliament is appropriate body to enact such law. In spite of the appeal of a uniform code, the Supreme Court advised in, that the sanctioning of uniform law for all people “in one go might be counterproductive to the solidarity of the country”. Subsequently, it is a rough way that should be carefully trodden[4]

‘Multi-culturalism shouldn’t be disturbed by uniform civil code

says former Supreme Court Judge Ruma Pal. Unlike the government, apolitical nature of courts gave them greater credibility in effecting reforms in personal laws she added. Terming it impractical to wait for a full consensus on social reforms for gender-just laws, former Supreme Court judge Ruma Pal said courts should actively review discriminatory and unjust personal laws on the touchstone of constitutional principles of equality and non-discrimination. Justice Pal said unlike the government, apolitical nature of courts gave them greater credibility in effecting reforms in personal laws. “If it’s activism, so be it,” she said. Delivering the inaugural Vidhi Public Lecture on the Uniform Civil Code, Justice Pal said ideally reformative measures must be taken within each system of personal laws, instead for enforcing a common law for all religious communities as minorities viewed it with suspicion. However, she said the gender bias in Muslim personal law must go. Either the discriminatory practices of triple talaq and polygamy be done away with or Muslim women also be given the same rights, she said. While bring in uniform civil code multi-culturalism should not be disturbed and the law should ensure norms of equality and non-discrimination under Articles 14 and 15, and right to live with dignity guaranteed under Article 21 of the constitution, she added.

India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. While Hindu law has been overhauled to a great extent, activists have long argued that Muslim personal law, which has remained mostly unchanged, is tilted against women. To end the confusion over personal laws, the Supreme Court has been advocating a uniform civil code, a political hot potato.

But Article 44 says the state shall work towards securing a uniform civil code across the country replacing personal laws of various religious communities. The provision is a part of the Directive Principles of State Policy that are not enforceable by any court. Law Commission of India recently took the initiative to invite public opinion on the issue. But many Muslim groups, including the All India Muslim Personal Law Board (AIMPLB) have opposed it. Several Muslim women have moved the Supreme Court seeking to declare the practice of triple talaq, polygamy and nikah halaha unconstitutional. Under nikah halala, a woman can remarry a divorced partner only after she consummates a marriage with someone else. Justice Pal highlighted how overlooking the cause of gender justice was not in tune with India’s obligations under the UN Charter and other international contentions and covenants. Clarifying the meaning of the term “uniform”, she said it should be construed as meaning equality or sameness which need not be achieved by a single code.

The Supreme Court declined to direct Parliament to form Uniform Civil Code stating the issue is outside the realm. The Supreme Court bench comprising chief justice TS Thakur, AK Sikri and R Banumathi refused to entertain the public interest litigation (PIL) filed by Ashwini Kumar Upadhyay saying the court cannot direct the Parliament to introduce the Uniform Civil Code and said such issues are outside its realm.

CONCLUSION:

Mahatma Gandhi once said that to term a law a good law we should see that “do it is going to uplift the most miserable person or not?”. The supporters of UCC advocate that this law would uplift the women. We are having the examples of Hindu Law, which became codified. Do it really uplifted women or went contrary to them? The statistics shows the later one is correct. But we shouldn’t forget the warning of Dr. B.R. Ambedkar,

“However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”

The religious beliefs are woven from the customs and practices of mass communities. The notion and indeed the duty on the part of the Governing authority to implement Uniform Civil Code could be the aftermath destruction of multicultural fabric of India.

Swami Vivekananda said: “I shall go to the mosque of the Mohammedan; I shall enter the Christian church and kneel before the crucifix; I shall enter the Buddhist temple where I shall take refuge in Buddha and in his law; I shall go into the forest and sit down in meditation with the Hindu who is trying to see the light which enlightens the heart of everyone.” It is to be noted that neither he nor Swami Aurobindo spoke the “them and us” language. The culture, the biodiversity made the Indian Subcontinent. To interfere with a firm and long living belief is of a great pressure on its solidarity. The noble Uniform Civil Code as the Constitutional makers believed would be of good cause but its implementation would never be the same as other laws. The concluding and most welcoming point would be Reform from Within the respective religious codes rather than Uniform Civil Code.

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[1] Swami Vivekananda, Toward the Parliament of the World’s Religions Address at Chicago, America (11-17 September, 1893).
[2] Richard Shweder, Engaging Cultural Differences: The Multicultural Challenge In liberal democracy (Russel Sage Foundation).
[3] Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945
[4] Pannalal Bansilal Patil v. State of Andhra Pradesh, (1996) 2 SCC 498.

Reference:

  1. http://journal.advocatespedia.com/uniform-civil-code/89/
  2. Image courtesy:  http://agniveer.com/uniform-civil-code-2/

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