SENIOR CENMUN 2021

ALL INDIA POLITICAL PARTIES MEET (AIPPM)

AGENDA: DISCUSSION ON IMPLEMENTATION OF
UNIFORM CIVIL CODE (UCC)

CHAIRPERSON: SWASTID SINGH

VICE CHAIRPERSON: ESHAN BAJAJ
 Table of Content

Sr no. Topic
1. Letter from the Executive Board
2. What is UCC?
3. Personal Law through British Rule
4. Constitutional Debate
5. Constitutional and Legal Provisions
6. Notable Cases
7. Recent Debate
8. Merits of UCC
9. Criticism of the UCC
10. Hindu Personal Law
11. Muslim Personal Law
12. Christian Personal Law
13. Parsis and the UCC
14. Special Marriages and Indian Succession Act
15. Goa Civil Code
16. The Intermediate Position of the UCC
17. Feminists and the UCC
18. Questions to Answer as a Committee
19. References
Letter from the Executive Board
Greetings Representatives!
It gives us immense pleasure to welcome you all at the AIPPM which is to be
simulated at CENMUN 2022.
We welcome, and congratulate you all on being a part of this committee. We
look forward to discussions on forming future policies for the nation on the said
agenda using political intellect.
Kindly note, we are not looking statements that would be a copy paste of what
the leader/portfolio you are representing have already stated; instead, we seek
an understanding of the issue from you, while knowing and understanding your
impending political and ideological limitations as well as an understanding of
the immediate and long-term consequences of your statements, actions and
solutions.
Your political identity is an integral part of the purpose of the committee and we
look forward to your portfolio representation.
This Introductory guide is as abstract as possible and would just give you a
basic perspective on what you can expect from the committee and areas wherein
which your research should be focused at this given point in time. Given, the
political nature of this committee, your presence of mind and politico-analytical
aptitude is something which we as the executive board would be looking to test.
That being said, kindly do not limit your research to the areas highlighted
further but ensure that you logically deduce and push your research to areas
associated with the issues mentioned.
This background guide should be used as an introductory guide only, no
reference to be made from the same. Neither this BG should be used as a source
to prove statistical data.
Regards,
Swastid Singh, Eshan Bajaj
Moderator. Dy. Moderator
[email protected] [email protected]
About the Agenda:
What is a Uniform Civil Code?
Uniform Civil Code is a term generally used to refer to the proposal to replace
the personal laws based on scriptures and practices of each major religious
community in India with a common set governing every citizen. As of now,
these personal laws still apply in a number of fields, including marriage,
inheritance, divorce, adoption, and maintenance.

Personal Law through British Rule

The East India Company established the Hastings Plan in 1772 to create a
system of civil and criminal courts charged with the duty to see that the “native
norms”, as interpreted by maulavis and pandits, were applied as the law. The
key motive for this was seen as not wanting to anger a population who it sought
to control with minimum effort and expenditure. Therefore, the British refrained
from intervention in the field of personal law as far as possible.
However, over time, there was a substantial shift in policy. With a view to
achieving comprehensive consolidation and codification of Indian Laws, the
Government of India Act of 1833 (otherwise known as the Charter Act or Saint
Helena Act) was passed by parliament, establishing- among many other
thingsan All-India Legislature. The First Law Commission submitted the “Lex
Loci Report” in 1840 suggesting that the substantive law of England should be
declared as lex loci (law of the land) applicable to all excluding Hindus and
Muslims living in mofussil areas (outside the EIC capitals of Bombay, Calcutta,
and Madras).
The Indian Penal Code was enacted in 1860, the Evidence and Contract Acts in
1872, each- along with many others- based on principles of English Common
Law. There was, however, no attempt to address personal law uniformly. The
personal laws involved inheritance, succession, marriage and religious
ceremonies. The public sphere was governed by the British and Anglo-Indian
law in terms of crime, land relations, laws of contract and evidence—all this
applied equally to every citizen irrespective of religion.
There were repeated cases of confusion in the acceptability of religious personal
law due to the presence of multiple conflicting scriptures as well as a conflict
between practice and scriptures that were applicable to a particular community.
For example, Shudras allowed widow remarriage, in stark contrast to scriptural
Hindu law. Gradually the recognition of customary law increased mostly due to
popular demand.
Religious personal laws, unsurprisingly, discriminated against womendepriving
them of inheritance, remarriage, and divorce. The British, along with a number
of social reformers, began to create legislation to secularise Hindu practices.
The Indian Majority Act 1875 fixed 18 as the age of majority the Act applied to
Hindus in all matters except marriage, divorce and adoption. Many other Acts
such as the Hindu Inheritance (Removal of Disabilities) Act 1928; the Hindu
Law of Inheritance (Amendment) Act 1929; Child Marriage Act of 1929; Hindu
Women's Right to Property 1937 etc. were enacted under British rule.
There was far less interference by the British in the realm of Muslim personal
law, largely due to a fear of upsetting the fundamentalist section of the
population. These included the Mussalman Waqf Validating Act, 1913; the
Muslim Personal Law (Shariat) Application Act of 1937; and the Dissolution of
Muslim Marriage Act 1939- the general trend being to restore the orthodox
Muslim doctrines.
Therefore, on the whole, there was little interference in personal law over the
course of British rule in India- Muslim and Hindu law in particular were largely
immune to intervention. Changes in Hindu law were to reduce perceived
injustice, while those in Muslim law were to provide clarity and reinforce the
emphasis on Islamic scriptures over customary law. Even as the British grew
more powerful and consolidated their position, they allowed the systems of
religious personal law to exist as they always had, albeit with greater
codification.
Constitutional Debate
When the Constituent Assembly first met, there was a strong debate about
whether or not to create a Uniform Civil Code. It was proposed as Article 35 of
the Draft Constitution- the strongest, most vocal opposition was from Muslim
leaders. Mohammad Ismail, member of the Indian Union Muslim League,
pushed for an addition that provided that “any group, section or community of
people shall not be obliged to give up its own personal law in case it has such a
law”. Nazir Ahmed argued that the very concept of Uniform Civil Code clashed
with the religious and cultural freedom guaranteed to every citizen.
A number of Hindu members of parliament expressed their opinions to the
contrary. KM Munshi argued that “Religion must be restricted to spheres which
legitimately appertain to religion, and the rest of life must be regulated, unified
and modified in such a manner that we may evolve, as early as possible into a
strong and consolidated nation.” He also added that a Uniform Civil Code could
be enacted by the state even in the absence of Article 35, as Article 25 of the
Constitution (guaranteeing religious freedom) also gave the state the power to
secularise practices.
The Assembly, however, finally passed Article 44 in the Directive Principles of
the Constitution. The Directive Principles are not conventional laws in the sense
that they are not enforceable by any court, but are seen as fundamental in the
governance of the country, making it the duty of the state to apply these
principles while making laws to ensure a just society. Article 44 reads “The
State shall endeavour to secure for the citizens a uniform civil code throughout
the territory of India.”
Muslim leaders were particularly worried about this, seeing it as dangerous to
their freedoms in the future as a minority. B.R. Ambedkar, addressing their
concerns, said that this created a “power” and not an “obligation”. He added
that “Sovereignty is always limited, no matter even if you assert that it is
unlimited, because sovereignty in the exercise of power must reconcile itself to
the sentiments of different communities.”
Prominent women leaders criticised the move, seeing it as insufficient. By
making it a Directive Principle rather than a law in itself, it seemed to them that
the state was leaving the state with an option not to enforce it at all. Academic
Paula Banerjee declared that the drafters of the Constitution had made sure the
issue would “never be addressed”, while Aparna Mehta wrote in retrospect that
the “failure of the Indian state to provide a uniform civil code, consistent with
its democratic secular and socialist declarations, further illustrates the modern
state's accommodation of the traditional interests of a patriarchal society”.
Constitutional and Legal Provisions
B.R. Ambedkar added to the Muslim community that they “need not read too
much” into Article 44 and that it would only apply to those who “consented to
be governed by it.” The Constitution does, though, have several clauses
pertaining to religious freedoms. Articles 25 (1), 26, and 29 are frequently used
as arguments against the state interfering in religious practices through a
Uniform Civil Code.
Furthermore, Article 372 ensures the application of "all the law in force in the
territory of India immediately before" its commencement. The Muslim Personal
Law {Shariat) Application Act of 1937 is technically a law in force before the
commencement of the Constitution of India, and this is used by Muslims as a
base for certain practices relating to marriage, divorce, and maintenance. This is
because the law states that in a case where both the parties are Muslims the rule
for decision shall be Muslim Law. On the contrary, however, Article 13 (1)
states that “All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void”. This
“Part” refers to fundamental rights, so therefore law legitimising practices such
as- say, triple talaq or Hindu inheritance- would be in conflict with rights such
as those prescribed in 15 (2).
Furthermore, a number of subjects included in personal law are mentioned in
List III (the concurrent list) of Schedule VII of the Constitution- therefore both
central and state governments have some power in those fields. Entry 5 of the
List reads “Marriage and divorce; infants and minors; adoption; wills, intestacy
and succession; joint family and partition; all matters in respect of which parties
in judicial proceedings were immediately before the commencement of this
Constitution subject to their personal law”. This is used to reinforce the notion
that the state does have the right to intervene. Therefore, on the whole, experts
argue that the Constitution does give the state the right to enforce a Uniform
Civil Code. It also puts the responsibility in the form of Directive Principles and
fundamental rights that need to be protected, but whether rights on the freedom
of worship and religion can be sacrificed in the prevention of discrimination and
inequality is a still-raging question that lacks a clear answer.
Notable Cases
The Supreme Court for the first time, directed the Parliament to frame a
Uniform Civil Code in the year 1985, in the case of Mohammad Ahmed Khan
v. Shah Bano Begum, popularly known as the Shah Bano case, in this case, a
penurious Muslim women claimed for maintenance from her husband under
Section 125 of the Code of Criminal Procedure after she was given triple talaq
from him. The Supreme Court held that the Muslim woman have a right to get
maintenance from her husband under Section 125. The Court also held that
Article 44 of the Constitution has remained a dead letter. The then Chief Justice
of India Y. V. Chandrachud observed that, "A common civil code will help the
cause of national integration by removing disparate loyalties to law which have
conflicting ideologies”.
After this decision, nationwide discussions, meetings, and agitation were held.
The then Rajiv Gandhi led Government overturned the Shah Bano case decision
by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which
curtailed the right of a Muslim woman for maintenance under Section 125 of
the Code of criminal Procedure. The explanation given for implementing this
Act was that the Supreme Court had merely made an observation for enacting
the UCC; not binding on the government or the Parliament and that there should
be no interference with the personal laws unless the demand comes from within.
In Mary Roy v. State of Kerala, the question argued before the Supreme Court
was that certain provisions of the Travancore Christian Succession Act, 1916,
were unconstitutional under Article 14.
Under these provisions, on the death of an intestate, his widow was entitled to
have only a life interest terminable at her death or remarriage and his daughter.
It was also argued that the Travancore Act had been superseded by the Indian
Succession Act, 1925. The Supreme Court avoided examining the question
whether gender inequality in matters of succession and inheritance violated
Art.14, but, nevertheless, ruled that the Travancore Act had been superseded by
the Indian Succession Act Mary Roy has been characterised as a “momentous"
decision in the direction of ensuring gender equality in the matter of succession.
Finally, the Supreme Court has issued a directive to the Union of India in Sarla
Mudgal v. Union of India to “endeavour" framing a Uniform Civil Code and
report to it by August, 1996 the steps taken. The Supreme Court opined that:
"Those who preferred to remain in India after the partition fully knew that the
Indian leaders did not believe in two- nation or three "nation theory and that in
the Indian Republic there was to be only one nation- and no community could
claim to remain a separate entity on the basis of religion"
The SC’s comments on the Lily Thompson case are worth noting. The Court
said that the directives as detailed in Part IV of the Constitution are not
enforceable in courts as they do not create any justifiable rights in favour of any
person. The Supreme Court has no power to give directions for enforcement of
the Directive Principles. Therefore, to allay all apprehensions, it is reiterated
that the Supreme Court had not issued any directions for the codification of a
Common Civil Code.
The Supreme Court's latest reminder to the government of its Constitutional
obligations to enact a UCC came in July 2003, when a Christian priest went to
the Court challenging the Constitutional validity of Section 118 of the Indian
Succession Act. The priest from Kerala, John Vallamatton filed a writ petition
in the year 1997 stating the Section 118 of the said Act was discriminatory
against the Christians as it imposes unreasonable restrictions on their donation
of property for religious or charitable purpose by will. The bench comprising of
Chief justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R.
Lakshamanan struck down the Section declaring it to be unconstitutional. Chief
Justice Khari stated 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 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".
A few years ago, while hearing a case pertaining to whether a Christian has the
right to bequeath property to a charity, the court regretted the fact that the state
had not yet implemented a uniform civil code. This is not the first time that the
apex court has expressed itself in favour of a uniform civil code or taken a dim
view of the government's and legislature's inability to bring it into being. There
have been other occasions — like during the Shah Bano case and later in the
Sarla Mudgal case — where too the apex court has come out strongly in favour
of the enactment of a uniform civil code. However, none of these comments are
binding on the executive or the legislature and do not amount to orders. At best,
they exert some moral pressure on the Indian state to move towards formulating
a uniform civil code. 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.
Recent Debate
The debate about a Uniform Civil Code was rekindled in 2014 when the BJP
included its adoption in their election manifesto. The Congress and a number of
other parties have opposed the BJP’s proposal, arguing that the version of a
Code that the party wishes to oppose is “communalized” and simply a way of
restricting the freedom of Muslims to practise their religion. Even parties
traditionally supportive of a Uniform Civil Code have opposed the BJP’s
suggestion as they are of the opinion that it is inherently discriminatory in
nature- the All-India Muslim Personal Law Board accusing the government of
attempting to sneak it in under the garb of promoting gender equality through its
opposition to triple talaq in the Supreme Court. The BJP has rejected such
claims, and has declared its intent to go through with its original plans.
Merits of a Uniform Civil Code
People belonging to different races, innumerable castes and religious beliefs
showing no similarity whatsoever live in the sub-continent of India. Fissiparous
tendencies, separatist attitudes, secessionist demands, divisive elements of
casteism and communalism have not therefore been uncommon.
A uniform civil code has been suggested as one of the steps to achieve national
integration. The code should apply to all irrespective of any differences in race,
religion, sex or caste. Marriage, divorce, succession, guardianship and adoption
may come within the purview of the code. Article 44 of the Constitution directs
the state to endeavour to secure a uniform civil code. The provisions of Article
44 are not justiciable, nevertheless Article 37 provides that "they are
fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in making laws”.
Though 70+ years have elapsed after attainment of independence no successful
efforts has been made by the state for securing uniform civil code. There is a
glaring apathy and lack of mindfulness on the part of the state to implement this
constitutional mandate. The tendency of government to bring reforms solely on
electoral considerations, is glaringly revealed. Over the recent years, there have
been several arguments raised for the need to implement a Uniform Civil Code.
Firstly, proponents of a Uniform Civil Code argue that the Common Civil Code
will bring all the personal laws governing matters which includes: marriage,
divorce, adoption, inheritance, succession to property, adoption, guardianship
and child custody under a single roof and create a space for the practices of all
communities in a just manner, while ensuring that everyone is treated equally
under the law.
Secondly, the one common argument given by all the political parties
highlighting their reluctance to implement the Uniform Civil Code is that
implementing Article 44 violates the rights of Indians provided under Article 25
i.e., "Freedom of conscience and free profession, practice and propagation of
religion."
The counter argument that can be cited is present in the same Article 25 itself
under Clause 2, where it is clearly indicated that:
This article shall not affect the operation of any existing law or prevent the
State from making any new law.
a) regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice;
 b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections.
Thirdly, with the non-implementation of Article 44 of the constitution, article
14 to 18 are being violated which provide for Right to Equality before Law and
prohibition of discrimination on the grounds of sex and religion. Many personal
laws relating to marriage, inheritance, guardianship, divorce, adoption and
property relations in all communities are unjust, especially to women.
Fourthly, ambiguity is created due to the presence of different laws governing a
social institution such as marriage, particularly in the case of polygamy and
divorce; both within a religion as well as amongst different religions.
Fifthly, misapprehension prevails about polygamy in Islam. Ironically, Islamic
countries like Syria, Tunisia, Morocco, Pakistan, Iran et cetera have codified the
personal law where in the practice of polygamy has been either totally
prohibited or severely curtailed to check the misuse and abuse of this obnoxious
practice.
Lastly, one of the advantages of a uniform civil code will be a proper notice
period and registration of the marriage. The ceremonies will become optional -
parties can have ceremonies of their choice as a ritual, (i.e., Hindu— Saptapadi;
Muslim— Nikah; Christian—Church blessing, etc.) However, the proof of the
marriage will be the registration and compliance with what is required of notice,
etc., as set out in the uniform civil code. Monogamy will be mandatory and the
laws of divorce will be the same for men and women and this will lead to
cohesion and no fragmentation of society. Men and women must be entitled to
equal property rights which can be enforced by law. This will be also ensure
real equality between men and women, irrespective of their religion.
In addition, a uniform civil code will also help in reducing vote bank politics
that most political parties indulge in during every election. If all religions are
covered under the same laws, the political actors will have less to offer to
certain minorities in exchange of their vote.
Criticism of the Uniform Civil Code
The objections raised for implementations of a Uniform Civil Code in India by
communities show that the imposition of such a code can pose a serious threat
to the sexual social fabric of the country and the minority community in general
and the minority communities in particular.
Support for a uniform civil code from the Sangh Parivar has led minority
communities fear the imposition of the religious customs and rituals of the
majority community under the garb of a uniform civil code.
A common civil code is also, seen as an infringement on the Fundamental
Rights enshrined in the Constitution of India which guarantee the right to
freedom of conscience and free profession, practice and propagation of religion
(Article 25) and freedom to manage religious affairs (Article 26).
Most religious scholars consider their scriptures and personal laws to be of
Divine origin and ergo show strong resentment towards any sort of interference
with same. They believe personal laws are sacrosanct and immutable and no
legislature can amend it.
In addition, most religious practices have been carried out in conformity with
these personal laws since times immemorial and any attempt to alter them can
hurt religious sentiments and sow the seeds of mistrust among communities.
The unfavourable response in the idea of the code it is very likely that protest
would occur, if the code is shoved down the throats of the Indian public. Given
the strained ethnic and religious fabric of this country, it is better to leave things
that may cause tensions.
It is also worth noting that most discriminatory practices have found their bases
in distorted codified personal laws which do not conform to the authentic
sources. The fault therefore lies not in religious principles but in the flawed
process of codification.
Hindu Personal Laws
The Supreme Court in the Sarla Mudgal case of 1995 took on the government
for not having initiated any steps in the direction of introduction of a Uniform
Civil Code. Justice Kuldip Singh and Justice R.M. Sahai in their judgement
observed,
“The utmost that has been done is to codify the Hindu law in the form of the
Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu
Minority and Guardianship Act, 1956 and the Hindu Adoptions and
Maintenance Act, 1956 which have replaced the traditional Hindu law based on
different schools of thought and scriptural laws into one unified code. When
more than 80% 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 "uniform civil code" for all citizens in the territory of India.”
The main issue in this case was bigamy by Hindu men. However, this got
sidetracked, and the uniform civil code became a political plank in the elections
that followed. Up till date, the various presumptions made by the judgment have
remained unaddressed, some of which are listed below:
a) Hindu marriages are monogamous in nature;
b) The judiciary has consistently and systematically upheld the principle of
monogamy among Hindus by penalising the errant husbands;
c) The only breach of monogamy among Hindus is by conversion to Islam.
To quote from the judgment, "there is an open inducement to a Hindu
husband, who wants to enter into a second marriage to become a Muslim"
d) A uniform civil code will plug this loophole and ameliorate the sufferings
of Hindu women:
e) All the four petitions which the judgment dealt with were filed by women
whose husbands had converted to Islam and remarried: and
f) Both the judges who heard the matter advocated enforcement of a
uniform civil code on a priority basis as the only remedy to conversion
and bigamy by Hindu men. Until 1955, Hindu marriages were
polygamous and hence Hindu men did not attract the penal provision of
Section 494 of the Indian Penal Code. The Hindu Marriage Act of 1955
for the first time laid down the principle of monogamy.
Additionally, even in spite of the Hindu Code Bill, the inheritance rights of
women according to Hindu personal law shows that equal rights are not given to
women on the ground that it would disturb family peace, lead to fight between
brothers and sisters, result in fragmentation of land and so on. So, patriarchal
order of family is promoted. When a woman is denied the ownership,
inheritance and matrimonial rights, it indicates male dominance and dismissal
of women's labour at home. Custody and adoption laws also enforce the notion
of father as the natural guardian. A married Hindu woman is not allowed to
adopt a child in her own name. Thus, there is legitimisation of male dominance
in a family system.
Similarly, the Hindu succession law protects son’s rights by keeping the
provision of making a will.
The Sikh, Jain, and Buddhist communities in India are governed by the same
civil laws as the Hindus.
Muslim Personal Laws
As far as the Muslim perspective is concerned, some part of the Community not
to be opposed to the idea of a common code as such since they can very well
accept any law, provided it does not prohibit them from doing what is fard
(compulsory) or forces them to do what is haram (prohibited) in the religion.
Now it should be realised that though Islam gives permission for polygamy it
does not hold it to be fard. So even if a Muslim is made to live under a law that
established monogamy, he could abide by the law as polygamy is not fard.
However, when given an option they would certainly prefer Shariyat Law over
other laws.
As per Shariyat law, legal adoption is prohibited in Islam as is explicitly stated
in the Quran (33:4), “...neither has He made your adopted sons as your own
sons”.
In relation to marriage, Muslims are allowed to marry more than one wife but
there is an upper limit of four as promulgated by the Quran (4:3), “Marry a
woman of your choice in two, three or four but if you can't do justice, marry
only one.”
The consent of both the spouses in the marriage contract is essential for the
validation of a marriage under Muslim personal laws.
Divorce is another aspect of personal laws and the Prophet conceded that of all
the things, divorce is most tasteful to God, however it was allowed with certain
restrictions, The Quran says in Chapter 4, verse 35, “If you fear a breach among
them, then appoint two arbitrators, one from his family and one from hers. If
they seek to set things alright, Allah will call their reconciliation.” This
conception of divorce however does not seem consistent with the triple talaq
that is being practiced by the Muslims with immunity in this part of the
subcontinent.
Regarding guardianship, there are specific rules, both in Hindu law as well as in
Muslim law. The details may differ but the substantive principle that the
“interests of the child” should be a supreme consideration has been accepted by
all systems.
A brief reference to the problem of maintenance is necessary. Under the Muslim
law, it is a duty of the faithful husband to maintain his wife with the same
standard of living which he has. The Quran ordains the same in the following
verses, chapter 2, verses 240 and 241, “Those of who you die and leave widows
should bequeath for their widows a year's maintenance without expulsion. For
divorced women also, there shall be provision to what is fair.” It was on ground
of these verses that Mr. Daniel Latif argued in the Supreme Court in the Shah
Bano's case.
Christian Personal Laws
The Christians in India have expressed varied opinions with regard to different
aspects of the personal laws. A part of the Christian community believes that
Section 10 of the Divorce Act is discriminatory against women, since much is
expected by way of proof from them as against men. Most Christians (both
Catholics and Protestants) support the introduction of a uniform civil code
though with some reservations. For example, the Catholics prefer annulment of
marriage over divorce.
On the point of adoption, the Christians want full adoption to be legalised. Now
there is a prohibition in Christian law; they cannot adopt and hence Christians
are sent abroad for adoption. All of them are of the uniform view that all aspects
of Christian personal law are negotiable. On the point of succession, they
believe that though the Indian Succession Act is quite satisfactory, in case of
intestacy, the Christian customary laws, that are discriminatory must go.
According to them, the widow must get full rights in a husband's property to be
divided between the children, as and when she likes. In the John Vallamattom &
Anr vs Union of India case 2003, the Supreme Court declared Section 118 of
the Indian Succession Act to be void as it found the provision to be
discriminatory and violative of articles 14, 15, 25 and 26 of Constitution. The
Section stated that “No man having a nephew or niece or any nearer relative
shall have power to bequeath any property to religious or charitable uses, except
by a Will executed not less than twelve months before his death, and deposited
within six months from its execution in some place provided by law for the safe
custody of the Wills of living persons”. The Christians found this to be an
infringement upon their religious right to practice charities to attain spiritual
salvation.
Parsis and the UCC
Parsis do not believe in conversion as conversion to Zoroatrianism is prohibited
by religion. In case of adoption, Parsis do not like to adopt a non-Parsi child
because it is only a Parsi who is entitled to visit the fire temple and to get the
benefits from the private Parsi trust. They would want full adoption but, in that
case, the adopted child must necessarily be a Parsi, and adoption must be by
Parsi parents. Parsis are supportive of a uniform civil code on the condition that
their rituals in marriage are preserved.
Polygamy was and is non-existent in Parsis, in fact, it is a ground for divorce
under the Parsi law.
Special Marriages Act and Indian Succession Act
It can be argued that a uniform civil code is not a necessity since we already
have non-religion-specific legislation, such as the Special Marriage Act, 1954.
However, the first Special Marriage Act was enacted not in 1954 but in 1872. It
required the parties marrying under it to renounce their religions. It is only when
the Special Marriage Act was re-enacted in 1954 that it permitted interreligious
marriages without the couple having to renounce their religion. Parties marrying
under this Act were governed by the Indian Succession Act, 1926 for purposes
of inheritance. Subsequently in 1976, Hindu couples marrying under the Special
Marriage Act of 1954 were taken out of its ambit, and could inherit under the
Hindu Succession Act, 1956. This was a retrograde step, because for a Hindu
wife her inheritance was depleted due to the coparcenary system.
Goa Civil Code
Goa is the only state in India which continues to be governed by Portuguese
Laws with respect to Family Laws relating to marriage and Succession Laws.
The corresponding laws of India are not extended to the state of Goa.
Portuguese law is however applicable only to a Goan.
A Goan citizenship under Article 18 of the Portuguese Civil Code, is acquired
by
a) birth in Goa, or whose father is born in Goa or whose grandfather is born
in Goa, or
b) a woman by virtue of marriage, or
c) by naturalisation.
By default, every Goan marries under a system called Communion of Assets,
whereby, from the time of his marriage, his spouse acquires half undivided right
in the assets of the other, unless a contract called the Ante Nuptial Contract is
executed to avoid such system of law.
In the matter of gratuitous disposition of properties i.e., by will or gift, there is a
prohibition by which no disposition can exceed half right of a person. This is
called disposable quota and the remaining part is called non-disposable quota.
The Intermediate Position of the Uniform Civil Code- Gradual
and/or Optional
Many jurists have expressed their anxiety regarding the upheavals that might
follow the introduction of a uniform civil code. They have promulgated an
intermediate position, that is, the establishment of the uniform civil code must
be done slowly, with the consent of all communities. In the Constituent
Assembly, K. M. Munsh wanted to narrow the definition of religious practice.
He pointed out that the personal law of Hindus was discriminatory against
women and contravened an Indian citizen's right to equality. Therefore,
"religion must be restricted to spheres which legitimately appertain to religion,
and the rest of life must be regulated, unified and modified in such a manner
that we may evolve, as early as possible, a strong and consolidated nation."
Ambedkar can also be put in this group since he supported the inclusion of the
uniform civil code in the directive principles but said that the code would only
apply to those who wanted it to apply to them.
Syed Shahbuddin, former President of the All India Muslim Majlis-
eMushawarat believes that the project to implement UCC should logically pass
through three stages:
a) The codification of personal laws of various communities so that over a
period of time there is adequate basis in terms of comparative
jurisprudence to serve as a foundation to evolve common principles for a
uniform civil code,
b) There is also to be a transitional phase of optionality, and
c) If the uniform civil code comes into conflict with Shariat, the Muslim
community should be granted exemption when the UCC becomes
obligatory.
However, such a piecemeal approach may give rise to new inconsistencies in
personal laws across religions and hence defeat the very objective of a UCC.
Feminists and UCC
From the outset the problem with the uniform civil code debate was its
gratuitous emphasis on uniformity. Both judicial pronouncements and public
debate justified it as essential for national integrity. For a long time, it was
rarely articulated in the public consciousness as a feminist issue. It became a
debate about uniformity versus minority rights, secularism versus religious laws
and modernisation versus tradition in the context of the new nation state.
As Tahir Mahmood, an expert in personal law, points out, the ultimate object of
Article 44 (which enjoins the state to move forward towards a uniform civil
code) is secularity in family law: ‘the call for uniformity is merely the means’.
Over the years, consensus has emerged among feminists that all religious
personal laws are discriminatory and must therefore change. There are,
however, disagreements over the means to achieve this objective, whether
through a state- sponsored civil code or internal reform. Aware that legal
change cannot be isolated from wider political conflicts and majoritarian
politics, women’s groups made an attempt to distance feminist positions from
the Hindu right’s demand for a uniform civil code. The women’s movement has
since moved to a more nuanced position which combines the options of reform
from within personal laws, with the formulation of gender-just laws deriving
from the concept of a common civil code.
The All-India Democratic Women's Association, which has a leftist leaning
supports a two-pronged strategy to achieve reconciliation between gender-just
laws as well as reforms from within. It has actively engaged in mobilising
Muslim women and encouraging community initiatives for legal reform,
codification of personal laws, and at the same time demanding legislation with
regard to matrimonial property and the custody of children, among other issues.
In the context of the controversies surrounding uniform civil code, an important
development over the past few years has been the emergence of Muslim
women’s activism seeking to promote women’s rights rather than focusing all
energies on changing personal laws. Muslim women in India face considerable
challenges as citizens and as members of the largest minority. They suffer from
many disadvantages in areas such as education, employment and access to
welfare programmes. The status of Muslim women broadly indicates the
shortage of three essentials: knowledge (measured by literacy and average years
of schooling), economic power (captured through participation in paid work and
income), and autonomy (measured by decision making and physical mobility)
as the defining features of women’s low status.
However, the preoccupation with the either-or debate has meant glossing over
the economic, political and social problems that define the everyday
experiences of Muslim women.
A high-level committee on the status of the Muslim community, known as the
Sachar Committee, has shown that they are impoverished, marginalised and
underrepresented in public institutions. They do, however, have the right to
have their own personal laws and to continue to practise these under state
protection. From the point of view of Muslim women this has meant that the
articulation of gender interests has been tightly controlled and articulated within
the terms of an identity discourse. Political negotiations over personal laws have
invariably favoured conservative voices among Muslims to the detriment of
women’s voices and women’s rights. Those who argue for reform from within
of Muslim personal laws as the best strategy for enhancing the scope of Muslim
women’s rights ignore the fact that such an approach tends to freeze identities
within religious boundaries. Very little attention has been paid to the multiple
crosscutting identities of Muslim women based on class, language and region,
among others. Implicit in this approach is the assumption of a homogeneous
Muslim identity, which fails to hear the different voices within the community.
Replacing the system of personal laws with a uniform civil code right after
independence could have nipped the bud; the problem, however, was that, in the
immediate aftermath of Partition it would have given a signal of inferior status
to the Muslim community, which was already reeling under a sense of
insecurity. Now, nearly seven decades past independence, it will be difficult to
accomplish the goal of reforming these personal laws even with the best
intentions and will, and even with the considerable involvement of Muslim
women.
Questions to Answer as a Committee
Note: These are only for your reference, and we strongly encourage, and would
appreciate you going above, and beyond this line of questioning.
a) With reference to India, how would the Government of India define the
concept of the UCC?
b) (b)Is it suitable to implement the UCC in a country as religiously and
culturally diverse as India?
c) Discuss the constitutional validity of the UCC in India.
d) What are the practicalities and considerations for the actual
implementation of the UCC?
e) How should the administration control the spread of false rumours and
propaganda and prevent any possible negative after effects if the UCC
were to be implemented?
References:
1. http://www.penacclaims.com/wp-
content/uploads/2020/09/TanyaSharma.pdf
2. https://clpr.org.in/wp-content/uploads/2017/11/UCC-Part-1-
Constitutional-History.pdf
3. https://jcil.lsyndicate.com/wp-
content/uploads/2017/11/SatyamShobitabh.pdf
4. http://ijariie.com/AdminUploadPdf/ALARMING_NEED_FOR_U
NIFORM_CIVIL_CODE__A__HUMAN_RIGHTS_PERSPECTI
VE_ijariie5845.pdf
5. https://lexforti.com/legal-news/wp-
content/uploads/2020/11/CurrentScenario-of-Uniform-Civil-Code-
Within-the-Indian-Mandate.pdf
6. https://ili.ac.in/pdf/paper417.pdf
7. https://www.hindustantimes.com/india-news/has-the-supreme-
courtset-the-ball-rolling-for-a-uniform-civil-code-
101615802810671.html
8. https://youtu.be/xiVAIcDVYew