India is a country of rich cultural heritage. Diversity is its unique identity. It is said that the two districts of this country is having more diversity than the two countries of Europe. This was the reason western theorist had not accepted India as a country or nation and according to then India is a nation in making. Despite having this much diversity even after 70 years of independence we are one and unified country. There is one common thread which binds us all from Kashmir to Kanyakumari. But in this oneness, there is one problem which affects us all and that is our religious identity. Due to this reason the demography of this country is changing at a rapid pace. Therefore, from different quarters, there is a demand of uniform civil code. This is not a new demand and even in constituent assembly this was raised none other than Dr. B. R. Ambedkar himself. But due to opposition, it was put under directive principle of state policy. Now, the issue of the Uniform Civil Code has emerged into India’s political discourse recently mainly because many Muslim women, affected adversely by the personal laws, have begun knocking on the doors of the Supreme Court to uphold their fundamental rights to equality and liberty in keeping with constitutional provisions. The Union law ministry has recently asked the law commission to examine the matters in relation to the implementation of the uniform civil code. After this direction Law commission started a survey on this issue and this country is eagerly waiting for its result.
India has had a long history of personal laws. Till 1935, the Muslims in India followed different rules according to their practice. Khoja Muslims and Kutchi Memons are examples of this. The Kutchi Memons worshipped Hindu Gods and Ali is their tenth avatar instead of Kalki. They had the inheritance laws as per Hindus and also the marriage laws as per Hindus. When a common Muslim Personal law was formed, there were many minority creeds of Muslims who had to accept these laws though they differed from their practices. The Hindu laws, too were different in different parts of the country. However, they have undergone a turbulent change, courtesy, geographically united India. Child marriages were banned, Sati was banned, widow re-marriage was encouraged, divorce was introduced, and inheritance laws were amended. “Narabali” or human sacrifice, which was considered a religious practice of Hindus, was also banned.
The Uniform Civil Code (UCC) in India proposes to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen. This will be limited to marriage, divorce, succession means it will govern the private affairs of the individual. This concept is not new as we already have uniform criminal law in this country which governs our public affairs.
The constitution has a provision for Uniform Civil Code in Article 44 as a Directive Principle of State Policy which states that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
Many Islamic countries have codified and reformed Muslim personal Law to check its misuse. Muslim countries like Egypt, Turkey and even Pakistan have reformed their laws. Terence Farias, in his chapter The Development of Islamic Law points out that the 1961 Muslim Family Law Ordinance of Pakistan "makes it obligatory for a man who desires to take a second wife to obtain a written permission from a government appointed Arbitration Council." The interesting point regarding Pakistan is that until 1947 both India and Pakistan had governed Muslims under the Shariat Act of 1937. However, by 1961 Pakistan, a Muslim country had actually reformed its Muslim Law more than India had and this remains true today. There is no reason why India should continue with vastly discriminatory personal laws. In fact, the reforms meted out in Tunisia and Turkey helped abolish Polygamy. Polygamy has also been either banned or severely restricted in Syria, Egypt, Turkey, Morocco, Iran and even in Pakistan. Besides Muslims who live in U.S.A., Australia, U.K. and other parts of Europe readily accepted the civil laws applicable uniformly to all citizens in the respective countries but do not feel insecure on that account. So, then, why, in India should there be such a feeling? Iran, South Yemen, and Singapore all reformed their Muslim laws in the 1970s, although Iran appears to have backslid in this respect. In the end the argument is quite clear. There are more reasons to bring Uniform Civil Code is this country. There are as follows –
In the modern era, a secular democratic republic should have a common civil and personal laws for its citizens irrespective of their religion, class, caste, gender etc.
It is commonly observed that personal laws of almost all religions are discriminatory towards women. Men are usually granted upper preferential status in matters of succession and inheritance. Uniform civil code will bring both men and women at par.
A contemporary India is a totally new society with 55% of its population is below 25 years of age. Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity.Their view of shedding identity on the basis of any religion has to be given a serious consideration so as to utilize their full potential towards nation building.
All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are same for all. With the implementation of Uniform Civil Code, all citizen will share the same set of personal laws. There will be no scope of politicization of issues of the discrimination or concessions or special privileges enjoyed by a particular community on the basis of their particular religious personal laws.
Existing personal laws are mainly based on the upper-class patriarchal notions of the society in all religions. The demand of UCC is normally made by aggrieved women as a substitute for existing personal laws as patriarchal orthodox people still deem the reforms in personal laws will destroy their sanctity and oppose it profusely.
It is practically tough to come up with a common and uniform set of rules for personal issues like marriage due to tremendous cultural diversity India across the religions, sects, castes, states etc.
Many communities, particularly minority communities perceive Uniform Civil Code as an encroachment on their rights to religious freedom. They fear that a common code will neglect their traditions and impose rules which will be mainly dictated and influenced by the majority religious communities.
The constitution provides for the right to freedom of religion of one’s choice. With codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.
Such a code, in its true spirit, must be brought about by borrowing freely from different personal laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality, and adopting expansive interpretations on marriage, maintenance, adoption, and succession by acknowledging the benefits that one community secures from the others. This task will be very demanding time and human resource wise. The government should be sensitive and unbiased at each step while dealing with the majority and minority communities. Otherwise, it might turn out to be more disastrous in a form of communal violence.
Considering a major opposition from Muslim community in India over this issue overlapping with controversies over beef, saffronization of school and college curriculum, love jihad, and the silence emanating from the top leadership on these controversies, there needs to be given sufficient time for instilling confidence in the community. Otherwise, these efforts towards common will be counterproductive leaving minority class particularly Muslims more insecure and vulnerable to get attracted towards fundamentalist and extremist ideologies.
In the late 1980’s, an old and penurious woman, Shah Bano had knocked on the courts for justice after she felt she was wronged in the way her husband divorced her. She demanded alimony from her husband, who had abandoned her for another woman. According to Muslim law, Shah Bano was entitled to three months' maintenance after over 40 years of marriage. Years later the Supreme Court heard the matter and upheld her right to maintenance. While doing so, the court also referred to the need to enact a uniform civil code. An open and shut case, it should seem, but for the Bench's reference to the need for enacting a Uniform Civil Code since after all it was part of the Directive Principles enshrined in the Constitution which the nation was duty-bound to implement -- in due course. This seemingly innocuous event was a crucial moment in the nation's history. It sparked off a huge protest among Muslim leaders who accused the judiciary of interfering in their personal laws. Upset by what they felt was the judiciary's interference in their personal law in deciding the Shahbano case; the Muslim orthodoxy -- in the persona of Z A Ansari and Syed Shahabuddin -- convened what they knew best: street-level power. As the muezzin gave the call of Islam in danger, the masses thronged the streets. In the face of a communal revolt, the Congress government brought legislation overturning the Supreme Court verdict. The BJP seized on the moment and launched its campaign for a UCC.
Yet, in July 2003, another innocuous case came before the Supreme Court of India, seeking to strike down Section 118 of the Indian Succession Act which prevents Christians from willing property for charitable and religious purposes, and the Bench has again while regretting the government's inability to enact a Uniform Civil Code, struck down the Section declaring it to be unconstitutional.
Thus, as seen above, the apex court has on several instances directed the government to realise the directive principle enshrined in our Constitution and the urgency to do so can be inferred from the same. The question therefore arises: “Will religious orthodoxy and the lumpen once again join hands to scuttle what is a progressive and essential measure, after painting it as an attack on established religion?”
Under the Preamble to the Constitution of India the people of India have solemnly resolved to secure all its citizens, besides, social, economic and political justice; equality of status and opportunity, assuring the dignity of the individual and the unity and integrity of the nation. Article 14 (as a fundamental right) guarantees equality before the laws and equal protection of laws. Under the Article 15 it is guaranteed that the State shall not discriminate against any citizen on grounds of religion, caste, sex etc. Article 13 provides that all laws in force in the territory of India before the commencement of the constitution, so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency be void. And Article 44 of the Directive Principles of State Policy provides that the State shall endeavour or secure for the citizens a Uniform Civil Code throughout the territory of the country. In view of the above provisions the questions arise as to whether a Mohammedan woman married or divorced who is a citizen of India gets equality of status and dignity, treated equally before the laws and not discriminated only on the ground of sex, under the Muslim Personal Law (Shariat) Application Act, 1937 and whether the same is not inconsistent with the fundamental rights guaranteed under the Constitution and not void under Article 13 of the Constitution? If so, how long should the country wait to enact a Uniform Civil Code to secure and protect all that and the unity and the integrity of the nation?
If Muslim countries can reform Muslim Personal Law, and if western democracies have fully secular systems, then why are Indian Muslims living under laws passed in the 1930s?
The real social opposition each time has come from the Muslim community that sees any attempt to bring a UCC as an attack on its religious rights. The debate in India seems to have gone the way of the secularists in this respect and the recent rulings by the Supreme Court calling for a Uniform Code has not witnessed the protests and alarms that took place following the Shah Bano case in 1985. It is quite possible that the Muslim community sees a Uniform code as a fait accompli after almost 60 years of Indian independence. The matter is far more political than legal. Every time the issue has come up there have been angry words from both sides of the debate.
Religious fundamentalism must go, social and economic justice must be made available to the Muslim women and other women and their dignity and quality be ensured, basic human rights guaranteed and there should be an end to exploitation of Muslim women.
At the end of the day, a UCC can only emerge through an evolutionary process, which preserves India’s rich legal heritage, of which all the personal laws are equal constituents. The codification and implementation of UCC may not necessarily usher in the expected equality among genders and religions. Major sensitization efforts are needed to reform current personal law reforms which should first be initiated by the communities themselves. Current institutions need to be modernized, democratized and strengthened for this change. Sincere efforts towards women empowerment have to be taken for all women of all religions. The plural democracy is an identity of the modern India. Therefore, efforts should be focused on harmony in plurality than blanket uniformity for flourishing Indian democracy.