ONE NATION ONE CODE
The author of this Blog is Ms. Priya Sharma, 3rd year BA LLB (HONS) student at University of Petroleum and Energy Studies, School of Law.
“Difference does not mean discrimination, and
is instead of a sign of “robust democracy”. The stress on the equality within
communities rather than quality between communities can bring the same result
as UCC”
-Law Commission of India
When the time of recrudescence of communal violence keeps on rocking the body politic of India every now and then, it is important to understand the meaning of [1]Uniform Civil Code as it is a pristine form or need of the hour. Since 1985, judgment on various cases, The Supreme Court passed many strictures pertaining to common civil code, following judgment and directives to the law commission are good enough to understand the spirit of UCC becomes very important for the civilized society. India, the country with unity in diversity embraces a variety of cultures, traditions, customs, and languages. Religion has played a very major role in Indian society. There is a multiplicity of laws like the Hindus have Hindu law, Muslims have their Muslim law, Christians have their Marriage and Divorce Act, 1869, and Parsis have their own Parsi marriage and Divorce Act, 1936. The personal laws vary widely based on their sources, philosophy, and application. Therefore, an inherent difficulty and resistance are seen in bringing people together and to unite them when they are governed by different religions and personal laws. So, to achieve uniformity and making equitable and non-discriminatory, simplify the Indian legal system and make Indian society more homogeneous it became necessary for the applicability of the code extends to all the citizens irrespective of their religion, caste and tribe.
CONSTITUTIONAL PROVISION ON UCC
Our constitution unequivocally stipulates
under Art.44 of the Directive Principles of State Policy which runs as follows;
“The State shall endeavor to secure for the citizens a uniform civil code
throughout the territory of India”. Dr. BR Ambedkar, one of the architects of The Indian Constitution, argued for bringing UCC. He said that ‘I personally 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”. Pt. Jawaharlal Nehru saw it as the first step in securing a
full national identity for the citizen. The implementation of UCC encourages the
country by bringing in uniformity and consistency in the judicial system of the
country through providing a common set of civil systems by incorporating and
embodying the custom and tradition of the different religious laws.
Goa is the shining example of which only
state has UCC throughout the territory irrespective of their religion. Thus, the
most important question arises, why people are afraid of adopting this code?
The people have always been afraid to
challenge the status quo of the system and try to believe in a system as long
as that particular irregularity does not bring dismay to them. The reason
behind the enforcement of UCC is based on two factors. Firstly, it would
infringe the fundamental right of freedom of religion confers under Article 25
of the Constitution of India. Secondly, it
would amount to tyranny for the minority groups considered as regressive
reactionaries opposed both to secularisation and modernization. They believed
it to be a majoritarian agenda that leads to suppress the minority groups.
SUPREME COURT ON UCC
Since 1985, in [2]Mohd.
Ahmed Khan vs. Shah Bano Begum which requested the government to fresh look the
Article 44 of the constitution and endeavor to secure for the citizens a
uniform civil code throughout the territory of India.
SECULARISM and UNIFORM CIVIL CODE
It was found that UCC is against the
Secularism but the fact secularism and freedom of religion are separate from
each other but the controversy revolves around the ambit of UCC. Its true fact that the word Secularism is not
used anywhere except in the preamble of
the constitution of India. The aim of
the Constitution is to establish socio-economic justice, the idea of a welfare
state, and the concept of welfare is purely secular and not based on any of
religion.
According to Encyclopaedia Britannica it
means: 'Nonspiritual, having no concern with religious or spiritual matters...
anything which is distinct, opposed to, or not connected with religion.
KM Munshi, Alladi Krishnaswami Ayyar and BR
Ambedkar said the right to religious freedom did not extend to freeing secular
dimensions of religion from the law of the land. They pointed out that not just
European countries but also Turkey and Egypt did not give Muslims the right to
govern secular matters by personal laws. The country Israel, Japan, France and
Russia is strong today because of their sense of oneness which we have yet to
develop and propagate. In [8]S.R.
Bommai v. Union of India, it was held by the court that religion is the matter
of individual faith and cannot be mixed with the secular activities. In India, there a concept of “positive
secularism” which separates spiritualism with individual faith as distinguished
from doctrine of secularism accepted by America and some European states i.e.
there is a wall of separation between religion and State.
Article 25 and 26 guarantee freedom of
religion and it is not limited to matters of doctrine of belief but it extends
to acts done in pursuance to regulate or restrict any economic, financial,
political or other secular activity, which may be associated with religious
practice and to provide social welfare and reforms. [9]UCC
is not opposed to secularism or violate Article 25 and 26 of one’s religion
beliefs which means Hindu will not be compelled to perform a nikah or a Muslim
will not be forced to carry out saptapadi but in matters of inheritance, right
to property, maintenance and succession, marriage and like matters of secular
nature there will be a common law to regulate.
NEED OF UNIFORM CIVIL CODE
·
The one prerequisite and necessary ulterior motive that is being served
with this code is to provide gender equality and equal status to all citizens
by eliminating the discrimination. Communalism breeds discrimination at two
levels: one, between people of different religions and between the genders. The enactment of UCC will promote Gender
equality and welfare of women. For women
who constitute almost half the population of India, the UCC provide with
equality and justice in courts of law- irrespective of their religion in
matters pertaining to marriage, divorce, maintenance custody of children,
inheritance rights, adoption, etc.
·
The formation of UCC will boost the national integrity. Even though our
country has diverse cultural values, a unified personal law irrespective of
gender, caste, creed etc. will boost the national unity.
· Overlapping provisions of law could be avoided
·
It will also make the political system comparatively fairer and
accountable as the political leaders and neta has to move away from their
divisive politics and has to come up with more creative political agenda
bringing a sort of political reform in the system. In the end, I concluded that personal laws
are detrimental to any country, uniformity of laws is of paramount importance. UCC
will be better suited for the realities of contemporary social life, consistent
with the values and principles of the constitution. So, take individuals out of
their silos and integrate them into a truly pluralistic society. The government constitutes a judicial committee or an expert committee to examine best
practices of UCC in developed countries and draft the Indian Civil Code.
[1] Uniform Civil Code: The
Importance of an Inclusive and Voluntary Approach, available at: https://www.thehinducentre.com/publications/issue-brief/article29796731.ece.(
last visited May 5,2020).
[2] AIR 1985 SC 945
[3]Sarla Mudgal vs. Union
of India AIR 1995 SC 1531.
[4] (1985) 3 SCC 62.
[5] (2000) 6 SCC 224.
[6] (2003)6 SCC 611
[8] 11 (1994)3 SCC 1
[9] Rakesh Dwivedi, “Secular means UCC: Uniform
Civil Code is essential for national harmony, objections to it are spurious”
Times of India, Sept.24, 2018
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