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Uniform Civil Code
- The Supreme Court asked the central government whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions.
- The court said that, “There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance”.
- It asked the Solicitor General of India to express government’s view.
- Previously, the court had suggested there should be uniformity in personal law.
What is Uniform Civil Code?
- A Uniform Civil Code essentially means a common set of laws governing personal (marriage, divorce etc.) matters for all citizens of the country, irrespective of religion.
- Uniform civil code in India is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen.
- These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance.
- Apart from being an important issue regarding secularism in India, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985.
- The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed since 1937, permitting unilateral divorce [triple Talaaq (saying "I divorce thee" three times)] and polygamy in the country.
History
- Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens.
- The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.
- The demand for a uniform civil code was first put forward by women activists in the beginning of the twentieth century, with the objective of women's rights, equality and secularism.
- Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows.
- In 1956, the Indian Parliament passed Hindu Code Bill amidst significant opposition.
- Though a demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition.
Current situation
- Currently, different laws regulate the personal aspects of different religions.
- Example: Christian couple have to be judicially separated for two years before getting a divorce, whereas this period is one year for Hindus and other non-Christians.
What does Constitution say about Uniform Civil Code?
- Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
- Directive Principles, as Article 37 makes clear, are not enforceable by any court.
- But a body of judicial precedents says that they are fundamental in the governance of the country, and the State shall strive towards fulfilling obligations laid therein.
Secularism and Uniform Civil Code
- “Secular” character of India has been identified as part of the basic structure of the Constitution.
- Article 25 guarantees the freedom to practice, profess and propagate any religion.
- By the 42nd Amendment of 1976, India was declared a secular nation.
- As a result of this, and the understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws.
Uniform Civil Code: Constitutional or Unconstitutional
- Personal laws made by governments run contradictory to the idea of secularism which requires the State to be inert to religious considerations.
- Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice” — therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.
- The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality (gender parity is a part of right to equality. Most of the personal laws clearly undermine gender parity).
- So, Uniform Civil Code is definitely constitutional and the existing Personal Laws are highly unconstitutional. It is very unfortunate that draconian Personal laws which go completely against gender parity still exist in the modern era.
Important Cases related to Personal laws
- Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.
Shah Bano Case (1985)
- The first prominent case founded on Article 14 was Shah Bano (1985) in which the apex court ruled that a Muslim woman was entitled to alimony (maintenance for a spouse after separation or divorce) under the general provisions of the CrPC, like anybody else.
- Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling. (Great!!)
- The Act allowed maintenance to a divorced woman only during the period of iddat, or for 90 days after divorce, according to provisions of Islamic law, but in stark contrast to general provisions under the CrPC.
Daniel Latifi vs Union of India (2001)
- In Daniel Latifi vs Union of India (2001), the Supreme Court upheld the Act in so far as it confined the time period of maintenance to the iddat period, but held that the quantum of maintenance must be “reasonable and fair”, and therefore, last her a lifetime.
- In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.
Githa Hariharan vs RBI (1999)
- In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances.
- The court held that the interest of the child was paramount, and that the letter of law would not override this aspect.
- It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.
Recent
- The Supreme Court examined the aspect of uniformity again in 2015.
- The case pertained to seeking the court’s recognition to the Ecclesiastical Court, which operates under the Canon Law for Catholic Christians and not under India’s civil laws.
- The apex court was upset and called for stamping out religions from civil laws.
Opposition to Uniform Civil Code
- All conservatives and fundamentalists, except RSS and related institutions, vehemently oppose Uniform Civil Code.
- Congress as usual is worried about Muslim vote bank and is completely against Uniform Civil Code.
- Left parties support it while the Congress Party and All India Muslim Personal Law Board oppose it.
Titbit: Goa has a common family law, thus being the only Indian state to have a uniform civil code.
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