EXPLORING THE CONTRAVERSIES SURROUNDING THE UNIFORM CIVIL CODE
THE LAWWAY WITH LAWYERS JOURNAL VOLUME:- 1 ISSUE NO:- 1 , July 27, 2023 SYEDA NADIYA THE TAMILNADU DR.AMBEDKAR LAW UNIVERSITY B.B.A.LL.B(HONS) – VTH YEAR S.NO SUB TOPIC PG.NO 1 INTRODUCTION 1 2 HISTORICAL BACKGROUND AND LEGAL FRAMEWORK 1 3 UNIFORM CIVIL CODE OF GOA 1 4 FEATURES 1 5 LEGAL PROVISIONS ON UNIFORM CIVIL CODE 2 6 OTHER CONSTITUTIONAL PROVISIONS CONCERNING RELIGIOUS FREEDOM AND SECULARISM 2 7 CHALLENGES IN IMPLEMENTING UNIFORM CIVIL CODE 3 8 RELEVANT CASE LAWS 3 9 PROS OF IMPLEMENTING A UNIFORM CIVIL CODE 4 10 CONS OF IMPLEMENTING A UNIFORM CIVIL CODE 4 11 IMPACT OF UNIFORM CIVIL CODE ON VARIOUS COMMUNITIES 4 12 CONCLUSION 5 EXPLORING THE CONTRAVERSIES SURROUNDING THE UNIFORM CIVIL CODE Introduction: The Uniform Civil Code (UCC) has been a contentious issue in Indian politics, aiming to establish a common set of civil laws that apply to all citizens regardless of their religion, gender or sexual orientation. And, it is crucial to delve into the historical context, the current legal framework and the challenges faced in implementing a UCC. This article will explore the various perspectives, examine relevant case laws and provide an objective analysis of the potential benefits and drawbacks of a Uniform Civil Code in India. Historical Background and Legal Framework: The roots of the UCC debate can be traced back to the colonial era, where personal laws were formulated for Hindus and Muslims by the British Raj. After India gained independence, the framers of the Constitution considered the implementation of a UCC but ultimately included it in the Directive Principles of State Policy (DPSP) under Article 44. While DPSP is not enforceable by any court, it highlights the State’s endeavor to secure a UCC throughout the territory of India. Currently, personal laws in India govern matters such as marriage, divorce, inheritance, adoption and maintenance for different religious communities. Article 25-28 of the Indian Constitution guarantees religious freedom, allowing religious groups to maintain their own affairs. Article 44, however, reflects the State’s intention to formulate national policies based on directive principles and common law for all Indian citizens. Uniform civil code of Goa: The only state in India has a uniform civil code in the form of common family law is Goa. The Portuguese Civil Code, which is still in use today, was first implemented in Goa in the 19th century and was left in place after the state was freed. Features: The progressive universal law of Goa allows for the equitable distribution of wealth and income between husband and wife as well as progeny (regardless of gender). Registration of every birth, marriage and death is required by There are numerous provisions for divorce. All assets and money owned or gained by each spouse during a marriage are kept jointly by the couple. Polygamy and triple talaq forbidden by Muslims who register their marriages in In the event of divorce, each spouse is entitled to half of the property and in the event of death, the surviving member’s ownership of the property is divided. Parents cannot completely disinherent their At least half of their possessions must be left to their children. This inheritance must be distributed evenly among the children. However, the code has some shortcomings and is not strictly a uniform code. For example, Hindu men have the right to bigamy under certain conditions outlined in the Gentile Hindus of Goa codes of usages and customs (if the wife fails to produce a kid by the age of 25 or if she fails to deliver a male child by the age of 30). Polygamy is illegal in other community. Legal provisions on uniform civil code: “The state shall attempt to secure the citizen a uniform civil code throughout the territory of India” is laid out under Article 44 (Part IV) of the Indian Constitution. However, according to Article 37 of the Constitution, the DPSP “shall not be enforceable by any court.” Nonetheless, they are “fundamental to the country’s governance.” This means that, while our constitution believes that a Uniform Civil Code should be adopted in some way, it does not make it mandatory. Other constitutional provisions concerning religious freedom and secularism are as follows: Article 15- Makes it unlawful to discrimination based on religion, race, caste, gender or place of birth. Article 25- Freedom of conscience and free profession, practice, and spread of religion, subject to reasonable restrictions based on public order, health, and mortality. Article 25 (2) regulates secular activities related to religious practices, social welfare, and Article 26- Provides for the formation and administration of religious Article 27- Prohibits the state from levying a tax whose earnings are used to benefit a specific religion. Article 28 – Is concerned with religious instruction in educational The phrase ‘secularism’ was inserted to the preamble in the 42nd Constitutional Amendment legislations. In the case of S.R.Bommai vs Union of India, the Supreme Court declared secularism to be a fundamental component of the constitution. Challenges in Implementing a Uniform Civil Code: Cultural and Religious Sensitivities: One of the primary challenges in implementing a UCC is the need to respect the cultural and religious sensitivities of diverse The UCC should strike a balance between promoting uniformity and preserving the unique customs and traditions of various religious groups. Constitutional Considerations: The right to freedom of religion (Article 25), cultural and educational rights (Article 29 and 30) must be carefully weighed while formulating a UCC. It should not infringe upon these fundamental rights but rather enhance and uphold them in a more equitable manner. Political Opposition: The UCC has faced opposition from various political and religious groups, which hinders its progress. Political considerations and vote bank politics often play a significant role in shaping the discourse around the UCC, making consensus- building a challenging task. Complexity in Codification: Creating a comprehensive and coherent legal framework