IMPLEMENTATION OF UNIFORM CIVIL CODE – PROSPECTS AND CHALLENGES
THE LAWWAY WITH LAWYERS JOURNAL VOLUME:-15 ISSUE NO:- 15 , SEPTEMBER 10 , 2024 ISSN (ONLINE):- 2584-1106 Website: www.the lawway with lawyers.com Email: thelawwaywithelawyers@gmail.com Authored By :- Ganesh Natarajan IMPLEMENTATION OF UNIFORM CIVIL CODE – PROSPECTS AND CHALLENGES ABSTRACT Uniform Civil Code (hereinafter referred to as UCC) is a proposal in India to bring a common law replacing the personal laws that are based on religion, customs and traditions. The proposed UCC will cover topics like marriage, divorce, maintenance, inheritance and adoption which are currently governed by the respective personal laws for each religion. Even though the Constitution under Article 44 provides that the state shall endeavour to secure UCC for its citizens, this is just a directive principle for the state while making laws and are not enforceable by the Court. Whether, India with its wide spectrum of religion, with each religion having its own sub-sections and practices, be able to convince and implement UCC is a question that this article examines. It also examines the states and countries which have successfully implemented the UCC and track the progress of this common law. For understanding the possibilities and challenges of UCC, this article would analyse arguments in favour of UCC and against with an eye on legal aspects to better understand the law. For this purpose, the article would discuss relevant legal principles, theories, judgements and its legal implications. The benefits of a common civil code outweigh the concerns yet how it is presented and implemented will play a crucial role in determining its success. -Keywords: Uniform civil code, Article 44, personal laws, common civil law, gender equality INTRODUCTION Uniform Civil Code (hereinafter referred to as UCC) is a proposal to bring in common law covering topics like marriage, divorce, inheritance, and adoption, replacing the currently used personal laws ie., the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956 applying to the Hindus and the Muslim Personal Law (Shariat) Act, 1937 applying to the Muslims and so on. The UCC would apply to all the people irrespective of religion, caste, creed or gender. Article 44 of the Indian Constitution1provides that “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” This is a directive principle for the state in forming laws and is not enforceable in the court. In simple words, the state is directed to bring in UCC but does not have any legal obligation to do so. The Lex Loci Report of 1940 recommended that the laws related to crime, evidence and contract be codified and the personal laws of Hindus and Muslims be kept away from such codification. The Report was a by-product of fulfilling the objectives of the 1st Law commission2set up in 1834 under the chairmanship of T.B Macually. Based on the recommendations of the 1st law commission, another Act was enacted namely the Special Marriage Act in 1872 to facilitate inter-religious marriages. However, for anyone to marry under this act, they had to renounce their religion. The Special Marriage Act 1872 contained no provision for dissolution or nullification of marriage. It resorted to the Indian Divorce Act 1869 for these remedies. The Special Marriage Act 1872, was amended in 1922 to make it available to Hindus, Sikhs, Buddhists and Jains for marrying within these four communities without renouncing their religion. This Act remained till 1954. The Special Marriage Act, 1954 provides a more secular platform in terms of marriage by allowing any citizen to marry under this act irrespective of religion. It is in fact a civil law and for the remedies of the marriage it relies upon the civil laws and the Indian Succession Act, 1925. 1Legislative Department – Ministry of Law and Justice, ‘The Constitution of India 2024’ < The Constitution of India > 2Law, University of Kashmir, ‘UNIT: 4 First Law Commission’ < First Law Commission > ARGUMENTS IN FAVOUR OF UCC The arguments in favour of UCC can be broadly categorised under the below points: (i) It brings unity in the society One of the prime favourable arguments for the UCC is that it will bring equality before law in matters like marriage, divorce, inheritance, and adoption. Article 14 of the Indian Constitution3states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. When each religion follows its own personal laws, it becomes difficult for the state to maintain equality before law for these groups. For example, Polygamy is allowed in Muslim laws but Hindu law prohibits the same. Now, a Hindu man might feel constrained when he compares the laws applicable to him with the Muslim laws. (ii) Provides a path for gender equality Article 15 of the Indian Constitution4provides that “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” One of the basic tenets that arrives from this is gender equality. Everyone irrespective of their gender has to get equal opportunities and rights (except the exceptions made through Article 15(c)). Time and again the Supreme Court has struck down such provisions in personal laws that are in contravention to the constitutional rights like the triple talaq in Shayara Bano vs Union of India (2017)5. UCC will remove arbitrary provisions against women in personal laws of each religion and implement equal inheritance and divorce rights for women in parallel to men. 3Legislative Department – Ministry of Law and Justice, ‘The Constitution of India 2024’ < The Constitution of India > 4Legislative Department – Ministry of Law and Justice, ‘The Constitution of India 2024’ < The Constitution of India > 5 Manupatra, ‘Shayara Bano and Ors. vs. Union of India (UOI) and Ors. (22.08.2017 – SC)’ < MANU/SC/1031/2017 > (iii) Upholds constitutional values as envisioned by the makers The makers of the constitution envisioned a nation with equality and justice for all its citizens without any discrimination