AN ANALYSIS ON THE NEED FOR UCC IN INDIA.

ABSTRACT

To debate onto whether or not should UCC be implemented, it is necessary to have an idea as to
what UCC is. Uniform Civil Code are a set of laws that govern personal matters for all its
citizens, irrespective of what religion they belong to UCC is a bill that has been proposed in
India which shall To replace all the personal laws with a set of common laws that shall be
applicable to all. The UCC is said to cover all the public laws and laws that relate to marriage,
divorce, inheritance, adoption, and maintenance.

The ongoing debate as to whether or not should UCC be implemented has been a major issue in
the 21st Century. The reason being India is a diverse country and hence, there are several
groups of people that follow various religions implementing UCC shall require all of them to
give up on their personal laws, which might spark an issue. Women’s rights is another important
factor that is to be considered.

The main idea behind implementing Article 44 of the India Constitution is that implementing
UCC

shall strengthen the core of the country by bringing in unity and integrity, as the country shall
then

reject all personal laws of different communities and there will be implementation of Gender
Equality and equality among religious groups too.

In India, Goa is the only state where UCC has been made applicable. The Goa Family Law is
nothing but a set of civil laws that govern the residents of Goa and Damon, irrespective of their
religion and ethnicity.

INTRODUCTION

The inequalities prevailing in the society, be it between two sexes or between people from
different religions, has flared up the need for having UCC in India in order to protect every
citizen rights. Article 44 of the Indian Constitution which states that the state shall endeavour to
secure for the citizens a uniform civil code throughout the territory of India, is what is the urgent
need of the hour.
Personal laws, such as Hindu Personal laws or Muslim Personal laws, are civil laws that have
provisions which deal with matters such as marriage, divorce, custody, adoption, inheritance etc.
The reason for not implementing UCC in the country, even after Article 44 clearly states for its
need is because, Article 44 falls under “Directive Principles of State Policy”, which means that
the idea of implementing Uniform Civil Code, which is suggested by the Indian Constitution, is
solely a goal, which the country should try to achieve and not a fundamental right or a
Constitutional guarantee.

Directive Principles are defined in Article 37, which lays down:

“The provisions contained in this Part shall not be enforceable by any court, but the
principlestherein laid down are nevertheless fundamental in the governance of the country and it
shall be the duty of the State to apply these principles in making laws.”5

As was laid down in the Shah Bano Case by the apex court,

“There is no evidence of any official activity for framing a common civil code for the country. A
common Civil Code will help the cause of national integration by removing disparate loyalties to
laws which have conflicting ideologies.”6

HISTORICAL BACKGROUND

The British Government formulated the ‘Second Law Commission’, which back in 1835
submitted

its report whereby it stressed on the fact that why was there an urgent need to implement
Uniform

Civil Code, back then. It stressed on the need for uniformity in codification of several Indian
laws

that solely related to crimes, evidences, contracts, etc however, it was specially made to
recommend that personal laws of Hindus and Muslims should be kept outside such codification.

5
Article 37, The Constitution of India
6
Mohammad Ahmed Khan vs. Shah Bano Begum, 1985 AIR 945, 1985 SCR (3) 844
"In their Second Report the Commission examined the problems of Lex Loci and codification
and

came to the conclusion that 'what India wants is a body of substantive civil law, in preparing
which

the law of England should be used as the basis, but which, once enacted, should be the law of
India

on the subject it embraced. And such a body of law, prepared as it ought to be with a constant
regard to the condition and institutions of India, and character, religions, usages of the
population, would,we are convinced, be of great importance to that country.' The Commission
also recommended that codification should not extend to matters like the personal laws of the
Hindus and Mohammedans which derived their authority from their respective religions."3

The Report was made by the informed views of J.H. Harington, who was a member of the
Viceroy’s Council, Bengal. He presented his arguments against generally applying the English
(British) Laws to the citizens of India on the basis of three grounds.

Grounds being:

1) That individuals here, had fixed set of habits, manners, established local customs,
andprejudices which were on a totally different range when compared with the principles or
evenpractices of England.

2) The people here were ‘ignorant’ of the language and the way in which the stated laws were
written and presented, and thus, would fail to acquaint themselves with the knowledge of
"ourcomplex, though excellent, system of municipal law.”

3) The laws of England could not be applied in India, as they were only "suitable to the genius of
the people and all the circumstances in which they may be placed”.7

7
Law Commission of India. 1958. Fourteenth Report (Reform of Judicial Administration),
Ministry of Law, Government of India, September 26, Vol. 1.
http://lawcommissionofindia.nic.in/1-50/Report14Vol1.pdf.
The goal behind taking the decision via the above stated 1835 Report was to bring about
separation between the various personal laws that were different for every religion and
community of India and to keep it out of proposed codification.

Later, it 1858 during the ‘Queen Victoria’s Proclamation’, which was when the British
government took over the ‘sovereign power’ of India’s administration 8once after displaced the
East India Company in the year 1857, during the revolt, and promised absolute ‘non-interference’
in all sorts of religious matters.

"We do strictly charge and enjoin all those who may be in authority under Us, that they abstain
from all interference with the Religious Belief or Worship of any of Our subjects, on pain of Our
highest Displeasure."9

This statement clearly meant the separation of the two arenas of law.

The public sphere which shall be governed by the British and Anglo-Indian laws, being: crime,
land relations, contract laws and evidence laws, which applied equally to every citizen,
irrespective of what religion they were from; and the personal laws of the people, which
governed matters of inheritance, succession, marriage, and religious ceremonies and so on.

NEED FOR UNIFORM CIVIL CODE

India is and has always been a diverse country. With the long legal history of the country, the
oldest

of them all are the personal laws, the Hindu and the Muslim personal laws. The country today is
split up in the name of religion, sections and even sexes due to each having a different personal
law that govern various personal matters such as marriages, divorce, maintenance, inheritance
etc.

The multifarious castes, classes, religions and creeds have their own set of beliefs and practices,
that they follow, which causes confusion in the legal implementation of laws under certain
circumstance.Whether or not India needs the Uniform Civil Code is a question that has been

8
Banerjee, A. C. 1984. English Law in India, Abhinav Publications, pp. 133.
https://books.google.co.in/books?
id=7MXExXXb9usC&pg=PA134&hl=en#v=onepage&q&f=false
9
debated for long now, but in my opinion, looking at the country today, it is high time that
Uniform Civil Codes are implemented. It would be wrong to compare India with a country that
has implemented UCC, because the situation in India is quit complex in comparison to other
countries, but this does not stand as an excuse to not implement the same. India is a country
where personal laws have been prevailing for years now and hence, giving them up so easily
would not be possible, for which there is a need to have an agreement among all the different
religious communities to unanimously agree to give up their personal laws, and accept uniform
civil code.

One way to look at it is that, personal laws govern people belonging to a particular faith whereas,

uniform civil code puts every individual on the same footing irrespective of what religion they
belong to, hence putting an end to the various personals laws that govern personal matters.

If one traces personal laws, they go back to the 17th century, based on which several other
enactments have been made, but none of them brought about equality between people belonging
to different religions. Implementing uniform civil code shall be long-term and shall bring about
equality in the society amongst different religions. Implementing Uniform Civil Code shall also
help bring about gender equity in the society, giving women equal rights as the men, that the
deserve. It is always argued by the religious communities that UCC disturbs, rather disrupts their
personal laws, and that it affects their religious freedom, but when one looks at the bigger
picture, they realise, that it is for the good of the society at large.

The campaign to implement the Uniform Civil Code and uniting the personal laws, has been on
for quite long now, and it is only justified and should be supported by everyone who call
themselves progressive thinking Indians solely because of the fact that the country needs it today.
Goa is the only Indian State which has enforced the Uniform Civil Code for all citizens,
irrespective of what class, caste, colour, creed or religion they belong to. It was first brought in
with The ‘Portuguese Civil Code’, which was introduced in the 19th Century in goa and it has
been in force since then and was never replaced. Implementation of the Uniform Civil Code in
Goa was a progressive step taken towards ensuring that there is equity in the state, with equal
pays, and other equal rights, irrespective of the gender or even religion. It was only after the
implementation of the Uniform Civil Code that every birth, death, marriage, inheritance act fell
under the purview of the same laws and had to be compulsorily registered. Even if one talked
about divorce, there were different laws for Hindus and Muslims but now they were all the same
and that, Muslims that have registered their marriages in Goa are not allowed to marry more than
once and take divorce by pronouncing the words, ‘talaq’ thrice.

As under the Uniform Civil Code, every and any property , and wealth acquired by the couple
10
during their course of marriage shall be commonly owned by them, that is by each spouse, and
in case of a divorce each spouse shall be entitled and eligible to hold half share in the property,
and on the death of either spouse, the other half is to be vested or retained by the living
spouse.Uniform Civil Code also makes provision for children, be it male or female and state that
if two get married and leave

their house, the parents shall not be eligible to disinherit the children totally, rather they will have
to

give a share to the children. This means that one half can be disposed off by them via a will and
the other has to be necessarily given to every child equally. The urgent need for implementing
uniform civil code has been expressed by several justices in several cases, one of them being by
Justice Kuldip Singh who states that Article 44 has to be put into action. The Hon'ble Justice, by
referring to the codification of the Hindu personal laws held that, “Where more then 80 percent
of the citizens have already been brought under the codified personal

law there is no justification whatsoever to keep in abeyance, any more, the introduction of the

'uniform civil code' for all the citizens in the territory of India.”

Chief Justice Khare has also pointed out that, “We would like to State that Article 44 provides
that the State shall endeavour to secure for all citizens a uniform civil code throughout the
territory of India It is a matter of great regrets that Article 44 of the Constitution has not been
given effect to.Parliament is still to step in for framing a common civil code in the country. A
common civil code will help the cause of national integration by removing the contradictions
based on ideologies.”

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The biggest obstacle that the country would face when wanting to implement the Uniform Civil
Code shall be drafting the same. Getting everyone to agree unanimously towards implementing
the laws is difficult too, but drafting is the major issue as, one would not know whether blend all
the ‘goods’ of personal laws or to create an entirely new law as per the provisions of the Indian
Constitution. Theoretically there are several views on how one should go about with it, but
practically there is nothing one could refer as a “model law for uniform civil code”

The main idea behind implementing Uniform Civil Code is that it should strike a balance
between

protecting fundamental rights and religious sentiments of individuals. The laws should be such,
which are just and proper as per a man of ordinary prudence, without any bias with regards to
religious or political considerations.

The most recent belief, dated: August 19th, 2019, of the Rashtriya Swayamsevak Sangh (RSS),
Seshadri Chari, set the grounds for the BJP government to bring UCC back on the stand of the
revocation of Article 370.

“The Uniform Civil Code (UCC) was part of the BJP manifesto and had been of the Jan Sangh’s

manifesto too. The RSS has also been claiming it. In fact, the UCC and abrogation of Article 370

have been the longest-standing demands of the Jan Sangh right from its formation. The only
addition in the BJP manifesto is Ram Janmabhoomi."6

History has proven that all the attempts to bring in codified personal laws have only resulted in
protests. The Hindu Code Bill, which was one of the foremost items of the social legislation, have
triggered a good number of opposition. The debate on Uniform Civil Code focuses mainly,
rather solely, on the argument as to whether or not to replace individual personal laws, that are
made on the basis of their prevailing customs and practices of marriage, divorce, adoption and
inheritance with a common code. The ones who agree with such transition argue that this
change shall bring an end to all the inequalities and discrimination. While the other half,
contends that it will ‘rob’ the country of its religious diversity, which India has always been, and
also that it shall violate the fundamental right to practice any religion which the very Indian
Constitution gives to every citizen via Article 25.
PROS AND CONS OF IMPLEMENTING UNIFORM CIVIL CODE

Pros of Uniform Civil Code:

- Providing equal status and avoiding discrimination amongst all the citizens of India,
irrespective of what their religion, class, caste, gender, colour or creed is.

- Promoting gender equality, as implementing uniform civil code shall bring both men and
women at par.

- Accommodating the budding aspiring youth of the country and to fully utilise their full
potential towards nation-building.

- To place all Indian citizens at equal footing before the court of law. In India all the criminal and
the civil laws provide equality in the courts, it is only the personal laws that lag behind, and thus,
uniform civil code shall be the push that those laws need.

- To bring about uniformity and codification in laws that relate to personal matters as
inheritance,divorce, marriage etc .

Cons of Uniform Civil Code:

- India, as is well known, is an immensely diverse country, and this makes it tough to come up
with laws that are common and uniform, and that which satisfy all the sets of people in the
country.Apart from getting an unanimous consensus, drafting is yet another issue that the country
faces.

- India has not just various religions but also has several communities, and these communities,
mainly minority communities hesitate to let Uniform Civil Code’s implementation as it serves as
a threat to their rights related to religious freedom.

- Personal matters as marriage, divorce, inheritance etc are preferred by a majority of people to
be left alone and not be interfered by the state, as the constitution provides for right to freedom
of religion which one shall be not interfered with. Implementation of the code will bring about
uniform rules and its implementation will reduce the scope of ones freedom of religion.

- Brining uniform civil code shall be a sensitive issue and tough task to implement but not
impossible.
CASE STUDIES

There have been several cases that put light on why is UCC the ned of the hour.The cases being:

1) Mohammad Ahmed Khan vs. Shah Bano Begum 11: In this particular case Shah Bano
Begum, in 1985, approached the Supreme Court of India in order to seek maintenance from her
husband Ahmed, who after 40 years of they marriage divorced her under the triple talaq system
and hence, defined her maintenance, apart from the one that the Islamic Laws required him to
give. Shah Bano claimed maintenance under Section 125 of the Code of Criminal
Procedure(hereafter referred as Cr.P.C.)

In its judgement, the Supreme Court stated that Section 125 of the Cr.P.C. was applicable to all
its

citizens, irrespective to what religion they belonged and hence, the contentions of Ahmed to not
pay maintenance cannot be entertained. The Supreme Court also stated that, in such scenarios
UCC would help as it would remove the confusion created by different personal laws.

2) Smt. Sarla Mudgal Vs. Union Of India 12: This is another Supreme Court case where the
Court

in its judgement stated how important it was to implement Uniform Civil Code in the country
The issue to be addressed in this case was whether a Hindu husband, who got married as per the
Hindu Marriage Act, 1955, could get remarried to another woman by the two converting into
Islam, without divorcing his first wife, who continued to remain Hindu.

The court held that the latter marriage shall be held invalid as covering into Islam just to
solemnise a second marriage is an abuse of the personal laws.Such a marriage shall no be
considered valid and shall also be an offence under Section 494 of the Indian Penal Code.

3) John Vallamattom and Another vs. Union of Indi

11

12
Yet another case that showed why was it important to have UCC in the country. This is a writ
petition case, filed by John, who stated that Section 118 of the Indian Succession Act was biased
against Christians as it imposed restrictions on donation of property for charitable and religious
purposes via a will. In the courts judgement, it was held that the said section was unconstitutional
and hence, it was struck down.

The above stated cases are only a few that showed why UCC was the need of the hour, there
have been several other cases the show the same too.
4) Danial Latifi & Anr v. Union Of India10

It was in this case where the Muslim Women’s Act (MWA) was challenged on the grounds that it
was violative of Article 14 and Article 15 of the Indian Constitution which stated the Right to
Equality and also, Article 21, which laid down the Right to Life.The Supreme Court after
throughly analysing the facts of the case held the law to be constitutional, and harmonised it with
section 125 of the Criminal Procedure Code and stated that the amount received by a wife during
her iddat. Hence, under the law of the land, it was laid down that a divorced Muslim woman
shall be entitled to the provision of maintenance for a lifetime or until she has remarried

IMPORTANCE AND BENEFITS OF IMPLEMENTING UNIFORM CIVIL

CODE

Importance:

‘Secularism’ which means “separation of religion from civic affairs and the state..” was added in
the Indian Constitution after the 42nd Amendment. The inclusion of this very word states that
India needsto have Uniform Civil Code in order to have common set of laws for all the citizens
of the country and present ‘equality’ that is mentioned in Article 14 of the Indian Constitution.

Implementation of UCC shall not only be a huge step towards the progress of the country but
shall also help to resolve the issues against discrimination that women face on religious grounds.
It shall
also bring about unity in the country and reform the social system all-together.

UCC mainly focuses on implementing common laws that majorly relate to provisions that
personal

laws deal in. Hence, replacing personal laws with UCC shall create a common ground for all the
cases that fall under marriage, divorce, maintenance and succession and hence, there shall be no
discrimination whatsoever

Benefits:

1) Equality: Implementing UCC shall help bring about equality to all irrespective of what
religion

they belong to.

2) Equality, as stated above, shall not only be brought about for people in general belonging to

different religions, but also between man and women.

3) Discrimination exists in the society in some form or the other and hence, to avoid it, brining

every citizen under the same set of laws is very important as it would leave no scope for any sort

of discrimination.

4) Personal laws that exist today favour the ‘upper-class’ section of the society and hence, to give

equal status to all implementing UCC is the best way that shall bring every member of the

society, irrespective of what class they belong to, under the same laws.

CONCLUSION

Uniform Civil Code if implemented shall bring about a huge difference in the society and shall
be a hug step towards progress. In my opinion, discrimination and inequality does exist in our
society, and to fight those and to bring about equality, UCC is the best way out. It is an ideal way
to give citizen s their fundamental rights and to bring about the ‘equality’ and ‘secularism’ that is
stated in the Indian Constitution. That part of the society which is against the implementation of
the uniform civil code contends that in ideal times and only in an ideal State, such code would be
‘“the ideal safeguard of citizens rights”, but India has not moved much further from what was it
was back when the Indian Constitution was written, 50 years ago. Just how Criminal Procedure
Code applies to all irrespective of what religion or class one belongs to, similarly, it is high time
we now have the same for personal laws as well, because discrimination faced in cases of
marriage, divorce, inheritance and succession is at its peak, and its high time it is controlled and
there is equality brought within.