This article has been written by Mr. Abhishek Singh, a first year student of Banaras Hindu University, Varanasi.

Abstract-

The article aims to deal with Uniform Civil Code debate with a special emphasis on Divorce laws. It provides a historical perspective on the debate starting from constitutional debates revolving around the matter and tracing it to the present arguments with an analysis of them and their viability. The article also deals with the judicial sanction behind the implementation of UCC and how an ideal law would look like by looking at the case of Goa and Special Marriage Act of 1955. It tries to suggest some possible solutions for the contentions raised by the dissenters and concludes it by emphasizing on the need of implementing UCC.

Keywords– Uniform Civil Code, constitutional debates, women empowerment, majoritarian bias.

Introduction

Many philosophers such as Hobbes, Hume, Machiavelli took a distaste towards religion and were of general opinion that if a state wants to continue to exist, there has to be religious homogeneity. This theory was the reason behind the doubts, western world had, about Indian state when it got Independence. However, its been more than seven decades and now there might be a nation who is completely religiously homogenous as globalization also increased migration making a nation more diverse and varied in its demography. India, throughout its history have been a cultural pot where different groups of people came and intermingled with native people, thereby, creating a unique and distinct culture.

While incidents of conflict existed but majority of the society was unaffected by it and overall unity prevailed.  This similar experience of maintaining unity was accounted and adopted by the Indian Parliament by giving protection to Diverse religious practices. But too much diversity would ultimately lead to isolation, giving birth to feeling of enmity. This was feared by Framers of the constitution, in the backdrop of partition which was the end-result of religious fundamentalism and polarisation. That’s why, They envisaged a Secular India which doesn’t discriminate on religion. But a question arose which was whether creating different personal laws for different religion desirable? The answer is a complex one as creating a uniform civil and criminal laws were the goal to bring uniformity in statute while if religious history and sentiments were not valued, then a law and order situation could have arose. Thereby, Framers of the constitution decided to include Uniform Civil Code as a directive principle of state policy so that legislature can decide the right time to implement it and implemented uniform criminal laws. In recent times, demand for uniform civil code gained traction so as to remove ambiguity in them and make them more sensitive towards women and new social realities. But an answer to this question can’t be answered in a yes or no manner, it necessitates an analysis in an unbiased manner to understand whether the time is right or not to implement it and if not, then when will the right time come.

Historical Perspective of Uniform Civil Code-

While law existed in Hindu as well as Muslim period, majority of the development of legal field with regards to uniformity and regulatory frameworks developed during British period. Initially, while they introduced codified and uniform criminal laws for better administration, they were reluctant to codify the personal laws of the citizens fearing backlash as religion have always been a deary topic for all. But eventually, with passage of time they formulated laws but being monotheist, they were not able to understand the intricacies of many religion to make a unified body, they decided that each religion should be governed by their own religious rules in matters of personal laws. While it proved effective in the short run, in the long run it only entrenched a deep “Exclusive and Isolating perspective” in the citizens which with other circumstances culminated in the partition of Bharat. After independence, a need for uniform laws was felt by the whole constituent assembly as that could have removed several conflicting laws of different religion and could also solved the plight of Judiciary while dealing with the cases. A better understanding about the present debate around Uniform Civil Code(UCC) can be better understood by taking a look at the constitutional debate surrounding the topic as they still hold water in light of the current arguments advanced by both of the sides.

Constitutional debate on Uniform Civil Code–

UCC was originally included as an article 35 under the draft constitution with a proviso that it would not be obligatory whenever and wherever enacted and personal laws can be kept out of its purview. There were arguments from both the sides where the minority view was that the will of the majority would prevail over them and they would lose their distinct identity. One of the forbearers of the group supporting the UCC were K.M Munshi. He said during the debate on UCC that it is necessary to implement it if we want to create a unified and a secular regulatory framework for the citizens and by implementing it, they were trying to divorce religion from the personal law with regards to social relations such as succession or inheritance and he fails to understand how these things have interconnection with the religion at the first instance. The majority supported the UCC with the purpose of removing the discrimination against women with regards to their contradictory legal rights in different personal laws, so that a uniform rights to all the women citizens can be given irrespective of religion or race.

Alladi Krishnaswamy Ayyar gave a more nuanced reasoning behind UCC implementation by reasoning that Indian society have been a society where influence of several civilization such as Roman and English cultures can be found and asked people to stop clinging to the past and questioned the core of religious exclusivity by vouching for UCC and emphasizing its need for welding a united India. B.R. Ambedkar who was a staunch critic of Hindu religion also supported UCC with the view that by gradual and careful implementation, society can be made progressive and gave the example of Shariat Act, 1936 which was made applicable. He advised that while making a Uniform Civil Code, a rule should be included for its beneficial aspect to the society and not because it caters to majority or minority. Looking at these debates, one can easily decide that UCC was commanding support not only from the majority but also from some of the hardest critics but the memory of tragedy of Partition and unpredictable response from the public stopped them from gaining it the required majority which ultimately lead it to be included as Directive Principle.

Present Debate surrounding the implementation of Uniform Civil Code

While Uniform Civil Code aims to create a uniform code for all the personal laws, for the purpose of this article, we will try to view the topic from the perspective of Divorce laws.

Point of contentions of the debate are–

While UCC has been promoted with the view that implementing it will bring uniformity fostering national unity and help in women-empowerment. The dissenters feel that implementing it is not a sure shot guarantee that it surely guarantees. They advocates that implementing UCC have more real ills than imaginary gains. They contend that implementing it causes scope for dominance of the majority over the minority and at the same time creates a mirage of women empowerment.

Dominance of the majority over the minority-

The dissenters contends that being a Secular state, India have enshrined religious freedoms as fundamental rights in section 25-28, just for restricting the scope for imposition of rules and regulations which would promote homogeneity and harm their distinct identity. The constitutional debates also revolved around the same topic that if majority is given the right to decide the laws which will govern the minorities without any constitutional safeguards, the result would be nothing but laws which falls at the basic values of religious tolerance. Mehmood Ali Baig, commented that Indian society have a different opinion about what constitutes a secular state. He observed that people tend to believe that an existence of uniform laws is what makes a country secular which is far from reality. The case of Sri Lanka can serve as a guiding lesson for us in this matter. In Sri Lanka, dominance of Sinhalese not only caused a civil war which lasted for three decades but due to a lack of united front, country also suffered economically and politically. From it, one can safely conclude that any change in Law which affects the private aspects of minorities life should be supported and called by the minorities themselves or with their implied consent to make the laws functional. When constitutional debates were taking place, Muslim members questioned the basic idea of modernity as they said that the idea of modernity put forward by the supporters is inherently foreign to Indian conditions which are just a weapon for creating uniformity in the name of modernization and they asked some of the most important questions which formed the base on which dissenting opinions were created and is still based upon. The one of the most important question was Who will decide what is modern backward and how they will decide it?

Mirage of promised Women Empowerment-

The benefits of practical working of Uniform Civil Code is not answered by anyone as its potential benefits are mostly assumed. As, without investigating into concrete realities, Muslim Women is assumed to be oppressed and downtrodden due to some of their religious norms and practices in comparison to a Hindu Women who is awarded the protection of a codified Hindu Divorce laws. However, in reality, even after Hindu Divorce laws were codified, Parliament through amendment introduced an option for mutual divorce and still several restrictions exist where a disparity between power dynamics between relationships still exist. Some of the issues relating to rights of second wife were solved by Judicial decisions but still a lot remains to be done.

One more issue of minority appeasement, where undue weightage is given to minority views with the sole purpose of political gains, also creates a distaste in the minds of the majority about the potential structure and substance of the Uniform Civil Code. 

From this, we can easily conclude that application of UCC should be collaborated with its useful implementation as only theoretical talk will only make it a paper tiger. However, its supporters too advances favourable arguments for implementation of Uniform Civil Code.

Arguments in favour of Uniform Civil Code–

• Personal laws were formulated before Independence because of which they are backward to modern standards and are essentially men centric.
• It also provides scope for religious fundamentalism as politicians use it for political gains.
• Uniform Civil Code is a necessity for unity of India as its need was also felt during the framing of the constitution.
• Formulating and applying uniform civil code will ensure that best laws and religious practises of different religions are included and all redundant laws can be checked on the cornerstone of modernity and women empowerment and those who fall short can be repealed.
• It not only prevents discrimination only to women but also makes them gender sensitive in view of the changing definition of genders and provides individuals with a right to decide their identity.

Judicial opinion 

The discussion about Uniform Civil Code gained traction and came to forefront after Mohd. Ahmed Khan v. Shah Bano case in which supreme court decided that a Muslim women is entitled to maintenance under section 125 of Code of criminal procedure, 1973 after the ending of the iddat period. It became a landmark judgment due to its liberal interpretation of secularism, women rights and religion. In this, Supreme Court instead of basing its judgments on personal laws, applied secular and uniform laws so as to remove any sort of ambiguity and provide an objective justice.

V.R. Krishna Iyer while giving judgment in Bai Tahira v. Ali Hussain Fissalli Chowthia also showed a similar opinion as that of Ambedkar where he contended that a uniform civil code doesn’t mean a rule of majority but it refers to incorporating best practices of all of them into a unified and progressive law. From this we can observe that judiciary too backs the implementation of a Uniform Civil Code subject to the condition that it should guarantee progress and should not be discriminatory in nature. 

Prior Experience

Goa as to the date of writing this article was the only state where a uniform civil code existed. The applied code was framed by Portuguese and is comparably progressive in nature as bigamy and triple talaq by Muslims were banned by it while other type of social ills in Hindu and Christian Family laws have also been removed. Karnataka, Uttarakhand are the states who are also aiming to introduce bills for implementation of a uniform civil code, these eagerness by different states shows the public will for implementing a uniform code. However, any action if motivated only by prospects of political gains will be harmful as can be seen in France, where unilateral restriction on minorities led to public loss of property as well as riots. The noble model of Goa, where a civil code was not formulated on the inspiration of religion but on a common heritage and history, should serve as an inspiration for creating the UCC for the nation so as not to make it impartial and discriminatory to any section of society.

Suggestions-

Hindu divorce laws were formulated much early in the history of India as an Independent Country. They were codified with clear grounds on which divorce can be given which reduced ambiguity and after amendment of 1976, new grounds specially for women were also incorporated. While Hindu focused laws have been amended and updated regularly, minority family laws such as Divorce Act, 1869 and Muslim Dissolution of Marriage, 1939 were not amended frequently mainly due to backlash because of which religious tenets still dominate these laws. A novel case has been the formulation of Special Marriage Act, 1954 which deals with secular marriages and provides a sneak-peak into what Uniform Civil Code could look like. The grounds mentioned under Special Marriage Act, 1954 and Hindu Marriage Act,1955 are essentially similar in substance which might make some people to say that it is a majoritarian bias but through objective lens, the grounds included are what majority of the society accepts which ultimately makes it a law which is being based on a common cultural heritage rather than that of religious tenet. Hindu divorce grounds too is multicultural in essence as Hindus not only included Hindu by religion but also includes Buddhist and Jains, because of which instead of being inspired by any one religion, it is a cultural pot and gives a good example of how a religious tolerant law can be formulated without compromising minorites rights. The growing acceptance of Special Marriage Act,1954 as evidenced by increased marriages under the Act also serves as a prove that with modernity and education, new generation can be a more tolerant society. Thereby, Uniform Civil Code should be applied only after having an indepth discussion with all the stakeholders and pacifying them that it doesn’t infringes their religious rights but aims to remove any social ills. Only after this, Uniform Civil code should be formulated with best practices of all the personal laws so as not to polarize any religion coupled with awareness programs to aware the citizens about the law and remedies available. Through this only the dream of Unity and women-empowerment, Framers of the Constitution can be fulfilled.

Conclusion-

Summing it up, there are arguments on both the sides of the argument making it a more complex matter which can’t be answered in a simple yes or no. Religious sensitivity continues to be a major argument for resisting the implementation of UCC. However, Judiciary along with several commissions through their reports continued to reflect the need of UCC with the main goal of removing practices derogatory to women or laws which gives undue influence to men in divorce matters. It is right to say that UCC, if formulated with a gender-neutral perspective in the mind, can surely remove inequalities and some of the power imbalance which still persists. Thereby, a Uniform Civil Code which would be gender-neutral, progressive in nature and inclusive in its provision without having a majoritarian and minoritarian bias is indeed a need of the time.

REFERENCES-

• Constituent Assembly Debates (Proceedings), Vol. VII, Tuesday Nov. 23, 1948.
• Constituent Assembly Debates (Proceedings), Vol. VI, Tuesday Nov. 23, 1948.
• Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945 
• The Annihilation of Cast: The Annotated Edition, 11, B.R. Ambedkar (Navayana Publication, New Delhi, 2014).
• The Muslim Women (Protection of Rights on Divorce) Act, 32, V. R. Krishna Iyer (Eastern Book Company, Lucknow, 1987).  
• Shayara Bano vs. Union of India and Ors. AIR 2017
• This article was originally written by Shambhavi published on ILI Law review website. The link for the same is herein https://ili.ac.in/pdf/paper%20217.pdf. 
• This article was originally written by Keshav patel published on SSRN website. The link for the same is herein https://ssrn.com/abstract=4567359.