UNIFORM CIVIL CODE:STRIKING A BALANCE BETWEEN GENDER JUSTICE AND RELIGIOUS FREEDOM IN INDIA’S CONSTITUTIONAL FRAMEWORK
Written by - Priyanka Bhoi
INTRODUCTION
Uniform Civil Code is a legislative framework which seeks to replace religious based personal laws with common laws which can be applicable to all citizens of India irrespective of their caste or gender. Currently different religions follow their own personal laws related to marriage, divorce, inheritance and adoption. UCC aims to elevate and ensures equality and secularism among all the citizens irrespective of their religion, gender or caste. The main motive of UCC is to set a just legal system which does not discriminate on the basis of religion or gender.
HISTORICAL BACKGROUND
During British era the personal laws were not codified and based on religions while other laws like the criminal laws and commercial laws were uniform. Then the Second Law Commission (1835) put forward to codify general laws but the personal laws were not included. The Lex Loci Report (1840) recommended a uniform legal code but excluded personal laws. The Queen’s Proclamation (1858) assured not to interfere in religious matters. After independence there were a lot of debates in the constituent assembly to bring UCC with leaders like Dr. B.R. Ambedkar who advocated for it. During the discussion Mohammad Ismail asked to add a proviso in article 35, which states that “Provided that any group, section or community of people shall not be obliged to give up on its own personal laws in case it has such a law. Some said UCC should belong to fundamental rights and some opposed it. And finally with a ratio of 5:4 majority it was decided to kept UCC under article 44 (DPSP) of Indian Constitution.
NEED FOR UCC: (DISCRIMINATION IN PERSONAL LAWS)
Personal laws in India vary across different religions which leads to gender discrimination and inequal treatment. For example, in Hindu Law daughters did not get the inheritance rights as compared to sons before 2005. Previously in Muslim Personal Law polygamy were allowed for men. Instant divorce (triple talaq) also allowed for Muslim men but Muslim women had to follow long procedure for divorce and denied financial support after divorce. In Christian Law women faced more stricter law for divorce than men. And in Parsi Law women who married outside their community lost their inheritance rights but there is not such rule for men. The legal age for marriage in Hindu and other secular law allow 18 years for girls and 21 for boys, but in some personal law child marriage is permitted. These Personal Laws are discriminate against women and conflict with equality principle which highlight the urgent need for UCC,
UCC aims to abolish these discrimination and inequalities and ensure fair alimony, simplify marriage and divorce procedure for all. Further it guaranteed the citizens to be governed under the same set of laws irrespective of their gender or religion.
ARGUMENTS IN FAVOUR OF UCC
The proponents of UCC argue that it is necessary for gender equality as it forbids discriminations in personal laws related to marriage, divorce and inheritance. It also ensures the legal clarity by eliminating inconsistency in personal laws. Further by eradicating religious-based legal differences it promotes national unity and secularism.
ARGUMENTS AGAINST UCC
The opponents of UCC argue that many communities afraid that UCC may dilute their customs and tradition. It may also obstruct religious freedom guaranteed under article 25 of the Indian Constitution. As India is a multi-diverse country it is challenging to draft a uniform law which accommodates everyone’s beliefs. UCC also used as a controversial issue by some political groups which leads to refusal to accept by religious leaders and communities.
LANDMARK CASE LAWS SUPPORTING UCC
The need for UCC have highlighted in several landmark judgements.
In the case of Sarla Mudgal v. Union of India (1995), Hindu man even after the marriage under Hindu law converted to Islam for the practice of polygamy for this, a Hindu woman (Sarla Mudgal files a case for the misuse of religious conversion, court ruled against the conversion to Islam for practicing polygamy and also held that those conversion does not nullify the existing marriage under Hindu law.
Further in the Shah Bano Case (1985), a 62 years old Muslim woman was denied alimony after divorce through triple talaq for which she files a case under section 125 of CrPC. The Supreme court in this case ruled in support of the right of Muslim women for alimony after divorce.
Then in the case of Shayara Bano (2017), Shayara Bano was divorced through triple talaq (Talaq-e-Biddat) which is a practice where man could divorce his wife only by saying “talaq” for three times which leads to the violation of the fundamental rights (Article 14 and 21) of women, the supreme court upheld the triple talaq as unconstitutional announcing it arbitrary and discriminatory. This landmark case resulted to Muslim Women (Protection of Rights on Marriage) Act, 2019 that criminalised the practice of instant divorce (Triple Talaq).
SUGGESTIONS
For the successful implementation of UCC there must be a step-by-step approach, adopted by government. There must be public awareness campaign about the UCC for the awareness of citizens. The implementation of UCC must be in a way which respect the diverse culture of India ensuring justice and equality for all the citizens. Legal reforms should begin by strengthening women’s rights within existing personal laws.
CONCLUSION
The UCC is essential for promoting gender justice, equality and national integrity. But the implementation must be done carefully with the input from all the sections of the society. The ultimate goal of UCC is to create a legal system that is just fair and secular for all the citizens ensuring equal rights and opportunity irrespective of their religion or gender. The Supreme Court has repeatedly focus attention on the importance of UCC which can be implemented successfully with proper awareness and reforms.
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