Plurality and Uniformity in Uniform Civil Code
Dealing
with a batch of petitions regarding an interfaith marriage undertaken by the
petitioners seeking protection from the Court, the Allahabad High Court asked
the Central Government to implement the mandate of Article 44 in the
Constitution of India which is the Uniform Civil Code. The Bench headed by Justice
Suneet Kumar noted that the issue of UCC, even though Constitutional, always takes
a political turn whenever it is discussed in the public domain, and its
implementation is demanded due to multiple laws regarding marriage and family.
What is the Uniform Civil Code?
The
UCC is a uniform civil code that aims at replacing the personal laws that are based
on the customs and religious texts of each religious community which has a common
law governing every citizen.
Why does India need Uniform Civil Code? (Pros)
· Nature
of India: India is a secular country that needs a common and
unified law for all citizens rather than different rules based on their religions.
· Gender
Parity: The rights of women and men are not equal and are
restricted by religious law, irrespective of whether them being Hindu or Muslim. For
example, in Triple talaq, priority is given to men regarding succession and
inheritance.
· Uphold
rights: Many practices that are administered under religious
tradition are opposed to the fundamental rights given by the Indian
constitution.
· Judicial
orders: Courts have also recommended that the government
should introduce a Uniform Civil Code in some cases like the Shah Bano case.
· Constitutional
mandate: The constitution of India has incorporated a
provision for the Uniform Civil Code in Article 44 as a Directive Principle of
State Policy (DPSP) which states that “The State shall endeavor to secure for
the citizens a uniform civil code throughout the territory of India”. But DPSP should
be voluntary and cannot be enforced by the court. However, the government can
enforce UCC by passing it as a law.
· National
Integration: UCC would make “One Nation, One Law” come
true. India believes in one nation and secularism so no community should govern
under separate religious laws. With UCC, it’ll promote national integration.
· Young
people's aspirations:55% of India’s population includes people who
are below 25% years of age. Young people’s social attitudes and aspirations are
based on humanity, equality, and modernity. To encourage them in
nation-building, their attitudes and aspirations should be respected.
Why is it not feasible in India? (Cons)
· Practical
difficulties: India is a diverse country with different
religions, ethnicities, castes, etc. Thus, it is not practically feasible to
come up with one set of rules for personal problems like marriage, divorce,
inheritance, etc. It will also be difficult to convince different communities
to replace their age-old customs and traditions with a new law.
· Violation
of religious freedom: Religious minorities consider UCC as
a violation of their rights to religious freedom. They fear that their
traditions and religious practices will be replaced by the rules and orders of the majority religion.
· The
state should stay out of personal matters: The constitution
gives the right to freedom of religion to every individual. If UCC is
introduced would be in violation of that right.
· Sensitive
and difficult task: UCC in its true form should be created by
borrowing from various communities’ personal laws and making changes gradually
in each, issuing a judicial decree, assuring gender equality, and implementing extensive
interpretations on marriage, maintenance, adoption, and succession. These can
be daunting for people resource-wise. Moreover, the government should be sympathetic
and unbiased at each stage when dealing with both majority and minority communities.
Otherwise, there might be communal clashes.
· Time
is not right yet: There have been many controversies over
the beef ban, saffronization of the curriculum in school and college, love jihad,
etc. At this time, if UCC is introduced it would only make things worse making
Muslims more insecure and they will be more vulnerable to getting attracted to fundamentalist and extremist ideologies.
Law
Commission’s recommendations
· The
commission suggests taking initiatives to unify the country’s diversity on the basic universal human rights.
· It
recommended the systematization of all personal laws:
o
So that the preconceptions and stereotypes
in all religions can be exposed.
o
They can sooner or later be tested against
the anvil of the fundamental rights given by the constitution.
o
It could help implement certain universal
principles.
o
These may help in prioritizing equality
instead of implementing UCC.
· Uniform
Civil Code may discourage many from using and abiding by the law altogether. In
particular, it is true when you consider the fact that matters pertaining to
marriage and divorce can be settled extra-judicially as well. So, the
commission suggested certain amendments to the personal laws relating to
marriage and divorce.
o
Making the marriageable age for boys and
girls at 18 years so that they have equal rights.
o
Making adultery a ground for divorce for both
men and women.
o,
Make a simpler divorce procedure.
o
It recommended making polygamy a criminal
offense and making it applicable to all communities.
What
is the way forward?
· UCC
can only be successful through an evolutionary process. Hence sensitizing is required
to reform recent personal laws which should be first implemented by the
communities themselves.
· Existing
institutions should be modern, run on the basis of democracy, and should be strengthened
for this change to happen.
· Serious
efforts in the direction of women empowerment have to be taken for all women of
every community and religion.
· The
plural democracy is what modern India is known by. Hence the initiatives should
be focused on bringing harmony in plurality, rather than introducing uniformity
for flourishing Indian democracy.