By Yukti Makan, Symbiosis Law School, Pune.
India is a unique country not only in terms of geography but also in terms of its social scenario. It is also a land of various cultures and different religions. The Indian culture believes in Unity in Diversity but unfortunately this Unity in Diversity has not helped to bring political unity in India.
Family law in India is predominantly based upon the religious personal laws of several different communities which exist therein. The laws coming under the umbrella of religious personal laws governing family relations themselves are an amalgamation of customary laws which are interpreted by the courts and the codified personal laws which the legislatures have enacted. The application of personal laws to the respective communities is seen as an essential part of their religion and inherent in their freedom to practice and propagate their religion.
Though India achieved Independence in 1947, it was done at the cost of partition of the country. For the framers of Constitution, the unity and integrity of the country was the primary consideration. Even the Preamble to our Constitution states that:-
We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens, in order to provide Justice, Liberty, Equality, and Fraternity.
For achieving all these ideals the concept of fundamental rights and directive principles were framed in Chapter III and IV respectively in the Constitution of India. The framers of the Constitution of India adopted a unique federal system possessing a strong centre. They thought that Uniform Civil Code will be an important means to achieve National Integration. Hence the framers of our Constitution have recommended for a UCC.
The feminist thinkers always believed that personal laws are an important source for their exploitation and hence they should be abolished and a UCC should be adopted. They believed UCC was a means to achieve gender justice. The Constitution of India guarantees freedom to practice any religion. The Constitution draws a balance between secularism and religious freedom.
The word Secularism was inserted in Constitution of India in 1976 after the case of S.R Bommai V. Union Of India. After the Bommai case it was held that Secularism is the basic feature of Indian Constitution. The concept of Secularism is based on Sarva – Dharma – Sambhava i.e. equal respect for all religions. But the concept of Secularism has not been able to achieve the Constitutional goal of Fraternity i.e. – “We The People Of India”.
There is a need for codification for the achievement of the constitutional objectives. Codification can also be a means of legal reform. The codification of criminal and commercial laws was done by the Britishers. Since they believed in the policy of divide and rule therefore they did not make any effort to codify personal laws and the same policy was followed by the Indian rulers.
There are different codes for different communities like Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and Maintenance Act, Hindu Guardianship Act. Muslims and Christians are governed by their personal laws. There are also many different sects and they are ruled by their customs, traditions etc. These codes are based on different personal laws of different religious communities, but this classification based on religion faces various difficulties, whenever the question arises on matter of succession, marriage, divorce, inheritance, adoption, maintenance, guardianship, custody of children etc.
There is difficulty in distribution of justice, hence decisive steps were taken towards national consolidation in form of idea of Uniform Civil Code which was for the first time mooted seriously in the Constituent Assembly in 1947.
The Uniform Civil Code as envisaged in Art. 44 of the Indian Constitution covers almost the entire ambit of family laws. We have a Uniform Civil Code for almost all the laws except for matrimonial and religious laws. There is no Uniform Civil Code of Law applicable to the marital relation of all, irrespective of ethnic or religious affiliations.
While drafting Article 44 of the Constitution, one member Shri Mahboob Ali Beg Bahadur, was opposed to the idea of civil code, saying that “ Civil Code” strictly does not cover personal laws of citizens. The civil code should only contain law relating to property, Contract, Evidence , etc.
Importance of Uniform Civil Code
- It would help accelerate national integration;
- Overlapping provisions of law could be avoided;
- Litigation due to personal law will decrease;
- Sense of oneness and the national spirit would be roused, and
- The country would emerge with new force and power to face any odds finally defeating the communal and the divisionist forces.
Israel, Japan, France and Russia are strong today because of their sense of oneness which we have yet to develop and propagate.
Constraints in the enactment of UCC
India has made attempts since Independence in formulating a UCC for all religions. But due to difficulties and objections it could not be achieved.
- Lack Of Information
The information as well as knowledge about its origin and history plays a very crucial role in formulation of any law or code. The history of law reform in general and process of codification in particular reveals that in India the Criminal and Commercial Laws were codified by collecting and processing information of many legal system.
- No build-up of public opinion
The people were not aware about the pros and cons of UCC and hence they were not in a position to give their opinion on the issue.
- No Draft Bill
For formulating any law there has to be a draft bill on the proposed law. For preparing a draft bill no information was available. Hence UCC could not be formulated.
I would like to say that citizens belonging to different religious and denominations follow different property and matrimonial laws which is not only affront to the nation’s unity, but also makes one wonder whether we are sovereign secular republic or loose confederation of feudal states, where people live at the whims and fancies of mullahs, bishops and pundits. I support it, not because of any bias, but because it is the need of the hour. It is high time that India has a uniform law dealing with marriage, divorce, succession, inheritance, and maintenance.
A common Civil Code will help the cause of national Integration by removing disparities in laws which have conflicting ideologies. A State is responsible and is charged with duty of securing a UCC for its citizens.
UCC also aims at providing equal status for men and women and protection of dignity of women. UCC can bring uniformity to India. The conflicting and ambiguous personal laws have brought many ills in the Indian Society and only a UCC can provide effecting cure. UCC may bring uniformity in India.