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Uniform Civilcode: It's Enforcement in India

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Uniform Civilcode: It's Enforcement in India AEGAEUM JOURNAL ISSN NO: 0776-3808 UNIFORMCIVILCODE:IT’SENFORCEMENTININDIA DIGAMBARPRATAPSINGH* Abstract:- At the time of the origination of constitutionalism in India, the framers of the Indian ConstitutionwereoftheviewtohaveaUniformcivilcodefortheircitizensasrepresentedin Article 44 of the Indian Constitution which lays down that “The state shall work towards administeringthesamesetofcivillawstogovernthepeoplebelonging todifferentregions andreligions.”Thisarticleisaboutthestudyofmuchdebatedtopicofsuitablelegislationon UniformcivilcodeforallthecitizensofIndia.TheSupremeCourtofIndiathroughanumber ofjudgmentshavetakenaforwardsteptowardstheestablishmentofUniformcivilcode,but stillnoconcretestephasbeentakensofarinthisregard.Itisduetotheunresolveddebateon the Freedom of Religion which is granted by Article 25 and Article 26 of the Indian Constitution.Moreover,theSupremeCourtofIndiainitsobservationshasmadeitveryclear thatUniformcivilcodedoesnotinvadeuponthe“RighttoReligion”.Throughthisarticlethe ideaoftheUniformcivilcodeisproposedbykeepinginmindthehistoryofthecountry,its complexcultureandaswellasitscurrentpoliticalandsocialscenario. KeyWords:- Uniformcivilcode,secularism,Equality,Ruleoflaw,Righttoreligion. Introduction:- Uniformcivilcodeisarulethatsays“Onelawforall”.Auniformcivilcodeisacodethat providesthesamesetofsecularcivillawstogovernallthepeopleofanationirrespectiveof theirdifferentregionsandreligions.Thisformoflawsupplementstherightsofthecitizensto begovernedunderthedifferentpersonallawsbaseduponthereligion,customsandtraditional practices. Itisthe entire body oflaws governing the rights relatingtothe property andthe otherpersonalmatterslikemarriage,divorce,maintenance,adoptionandinheritance1. Article44inthepartIVoftheIndianconstitutionquotestheconceptofUniformcivilcode, layingdownthat:“ThestateshallEndeavourtosecureforallthecitizensauniformcivilcode 1*StudentofBALLB,LawCollegeDehradun,UttaranchalUniversity,Dehradun,India. **AssistantProfessor,LawCollegeDehradun,UttaranchalUniversity,Dehradun,India. JNPandey,ConstitutionalLawofIndia56(UniversalBookPublications,NewDelhi,2010) Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 187 AEGAEUM JOURNAL ISSN NO: 0776-3808 throughouttheterritoryofIndia”. Uniformcivilcodeisatermwhichenvisagesadministratingthesamesetofsecularcivillaws togoverndifferentpeoplebelongingtodifferentreligionsandregions.2TheUniformcivilcode controversyrisesfromthetensionbetweenthetraditionalpoliticalideatoleavecommunities alonetomanagetheirownsociallife,themodernisticpoliticalvaluesof‘RuleofLaw’3which requires that one law apply to everyone and everyone should be benefitted equally from the laws of the state and lastly the political imperative of pleasing every constituency possible. Seventytwoyearsaftertheindependence,theUniformcivilcodevestedinArticle44ofthe IndianconstitutionisstillundertheDirectivePrinciple.4 WeallaregovernedbytheRuleofLawandthemostfundamentaloftherightsconferredupon is‘Equalitybeforelaw’and‘Equalprotectionoflaw’.ButstilltheUniformcivilcodeisonly available in the constitution, as Religion has been one of themajor players inenslaving the womenandpeggingthemdownasasecondclasscitizenandmaintainingtheinequalities.5 The demand for the uniform civil code has acquired a communal flavor which has overshadowedthenaturalmeritsoftheproposal.Article44oftheconstitutionsobynomeans theonlyDirective principleto have not been implemented from more thanhalfa century of independenceandmostofthedirectiveprinciplesremainonlyasmeredoctrinesratherthanthe ‘LawofLand’. NEEDFORITSIMMINENTNECESSITY:- TheBritish Indiahaswitnessed manyof herlawsgetting codifiedby the Britishsuchasthe Criminallaws,thelawofContract,TransferofpropertyAct,etc.Theselawsweremadebythe Britisherswhiledeprivingawaywithallreligiousandculturalfactors.Asobservedthatthelaw ofcontractispurelyalongthelawsexistedinBritainaroundthattime.Theonlyspherewhich wasleftbehindwasthepersonallawswhichgovernedthevariousaspectsofthelifestyleofthe peoplesuchasmarriage,family,succession,etc.ThetransferofsovereigntyfromBritishersto The Indi itself was marked by the high communal tension. Restoration of such communal harmonywasinthemindsofourconstitutionmakerssoArticle35ofTheDraftConstitution wasaddedasapartoftheDirectivePrinciplesofTheStatePolicyinPartIVoftheconstitution of India as Article 44. It was incorporated in the Constitution as an aspect which would be fulfilledwhenthenationwouldbereadytoacceptitandthesocialacceptancetotheuniform 2MPJain,ConstitutionalLawofIndia279(CentralBookPublishing,NewDelhi,2012) 3Dr.PankajDiwedi,UniformCivilCodeofIndia222(JBCPress,NewDelhi,2016) 4Timesofindia.indiatimes.com/articleshow/msid-1733642,prtpage-1.cmsas(visitedon12february,2020) 5www.pucl.org/Topics/Human-rights/2002/rule-of-law.htmas(visitedon12february,2020) Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 188 AEGAEUM JOURNAL ISSN NO: 0776-3808 civilcodecouldbemade.HoweveraftersomanyyearsofadoptionofConstitutiontheuniform civil code remains a constitutional dream. Judiciary somehow by the time has reminded the Legislatureabouttheneedtohaveauniformcivilcodethroughitsvariousjudgments.6 AuniformcivilcoderelatingtopersonallawdoesnotmeantheextensionofHindupersonallaw toothercommunitiesorthesuppressionofHindupersonallawbythepersonallawofanyother community. It includes says Prof. G.C.V Subba Rao7 “The evolution of a rational system removingtheinjustice,particularlytowomenandchildreninherentinthoseancientsystemsand thereplacementofallexistingpersonallawsbysuchrationalsystem”. ThechangedattitudeofSupremeCourthasstipulatedtheLegislaturetoactivitiesthatwilllead to goal of Uniform Civil code. In the landmark case of Mohd. Ahmed v. Shah Bano8 the Supreme Court held that section 125 of The Criminal Procedure Code, 1973 applies to all Indians generallyandoverrides thepersonallaw, if any; and thehistoricjudgment in caseof Shayara Bano v. Union of India and ors.9The Supreme Court has declared the Triple Talaq unconstitutionalwhichledtheparliamenttopasstheMuslimWomen(ProtectionofRightson Marriage)Bill,2017.10 Theotherreasonswhichimitateitsnecessityare: ● ItProtectsSecularism–AUniformcivilcodemeansthatallthecitizensofIndiahave to follow the same laws whether they are Hindus, Sikhs, Muslims, Christians etc. T UniformCivilCodedoesnotmeanthatitwilllimitthefreedomofpeopletofollowtheir religion,itjustmeansthateverypersonwillbetreatedthesame. ● More Rights To Women – A Uniform civil code will also help in improving the condition of the women in India. Our society is extremely a Patriarchal society condemning all Indian women to mistreatment. A Uniform civil code will help in changing these old traditions that have no place in today’s society where we do understandthatwomenshouldbetreatedfairlyandgivenequalrights. ● ReduceVoteBankPolitics–AUniformcivilcodewillalsohelpinreducingtheVote bankpoliticsthatmostpoliticalpartiesindulgeinduringeveryelections.Ifallreligions are covered under the same laws, the politicians will have less to offer to certain 6Mohd.AhmedKhanv.ShahBano,AIR1985SC945,Ms.JordenDiengdehv.S.S.Chopra,(1985)2SCC556, SarlaMudgalv.UnionofIndia,(1995)3SCC635 7G.C.V.Subbarao,“UniformCivilCode:RealityoraTantalizingIllusion”11MLJ1(1987) 81985)2SCC156 9AIR2017SC125 10AIR2017SC1228 Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 189 AEGAEUM JOURNAL ISSN NO: 0776-3808 minoritiesinexchangeoftheir vote.Nothavingauniformcivilcodeisdetrimentalto truedemocracyandthathastochange. TheLawcommissionofIndia11hasalsoproposedfortheconsolidationofIndianDivorceAct andIndianChristianMarriageActforthepurposeofNationalIntegration. CONCEPTOFSECULARISM: AtthecoreoftheentirecontroversyrevolvingtheUniformCivilCodeanditsimplementation aretheprovisionsoftheConstitutionofIndia,especiallythepreambleandfreedomofreligion. Indiais asovereign, socialist, secular, democratic,republic.Whatthismeans isthat the State doesnothaveareligionofitsown.TheUniformCivilCodethereforehasbeeninterpretedbyits opponentstomeanacommonstatereligion,andthusitgoesagainstthesoulofthepreambleand the freedom of religion as mentioned above. They are mistaken in that the state though is irreligiousisnotantireligious.TheUniformCivilCodewillnothinderman’sbelief.Itwillnot interfereinthemundaneactivitiesofday-to-daylife. This distinction was understood in S.R. Bommai v. Union of India12, as per Justice Jeevan Reddy, it was held that “religion is the matter of individual faith and cannot be mixed with secularactivities.ButsecularactivitiescanberegulatedbytheStatebyenactingalaw.” ThedoctrineofsecularismasacceptedinothercountrystateslikeAmericaandEuropeisoneof completenon-interferenceinmattersofreligion.Ithastobeunderstoodthatthesecountrieshave undergone a completely different evolutionary process consisting of renaissance, reformation and enlightenment. On the contrary, India has not gone through these stages and thus the responsibility lies on the State to interfere in the matters of religion so as to remove the impediments in the governance of the State. In India, there exists a concept of "positive secularism"13.Theonus lies withthe statetoensure thatreligionis notan impedimentto the overallprogressofthenation. Article25and26guaranteerighttofreedomofreligion.Article25guaranteestoeverypersonthe freedomofconscienceandtherighttoprofesspracticeandpropagatereligion.Butthisrightis subject to public order, morality and health and to the other provisions of Part III of the Constitution.Article25alsoempowerstheStatetoregulateorrestrictanyeconomic,financial, political orother secularactivity, whichmay be associated with religiouspracticeand
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