Uniform civil code

• The Union Law Ministry has asked the Law Commission to examine in detail all issues pertaining to the Uniform Civil Code and submit a report to the government.
• The government has clarified that a decision on the future course of action would be taken on the basis of the Law Commission report.

What is uniform civil code:

• The term civil code is used to cover the entire body of laws governing rights relating to property and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance.
• There are different laws governing these aspects for different communities in India. Thus, the laws governing inheritance or divorce among Hindus would be different from those pertaining to Muslims or Christians and so on. Different acts are : Hindu Marriage Act, a Muslim Personal Law (Shariat) Application Act, 1937, a Christian Marriage Act and a Parsee Marriage and Divorce Act. Hindu Marriage Act applies to any person who is a Hindu, Buddhist, Jain or Sikh by religion. There is also a Special Marriages Act, 1954 under which people can perform marriage irrespective of the religion followed by either person. These laws deal with the matters involving marriage, divorce, inheritance, adoption, and maintenance of the respective religions. Having a Uniform Civil Code will mean that all these laws will be replaced by a new law which will be applicable for all irrespective of their religions.

Analysis:

• Article 44, which is one of the "directive principles" laid down in the Constitution says: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."
• The first prominent case founded on uniform civil code was Shah Bano (1985) in which the apex court ruled that a Muslim woman was entitled to alimony 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. 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. 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.
• A secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
• Many practices governed by religious tradition are at odds with the fundamental rights guaranteed in the Indian Constitution.
• The perception that a uniform civil code would necessitate changes in only Muslim personal law is quite incorrect. As women's organisations and others have repeatedly pointed out, personal laws governing different communities in India have a common feature — they are all gender-biased. For instance, the law pertaining to succession among Hindus is unequal in the way it treats men and women. A truly modern, secular, non-discriminatory and progressive code would, therefore, mean changes in all personal laws. The concept of the "Hindu undivided family", at least insofar as it pertains to succession, would also obviously have to undergo a change under a uniform civil code. Similarly, Muslim, Christian and other personal laws too would have to change. This also explains why historically changes in personal law have been resisted not just by one community, but by the ruling orthodoxy in all of them.
• But this is not a cake walk to pass this law in India. India being a secular country guarantees its minorities the right to follow their own religion, culture and customs under Article 29 and 30. But implementing a Uniform Code will hamper India’s secularism.
• Uniform civil code is not yet successful because most parties have held the view that the reform of laws pertaining to the personal domain is better done by pressure for such change from within communities rather than as an imposition from above. Further, for historical reasons, the demand for a uniform civil code has acquired communal overtones which have overshadowed the innate merits of the proposal.

By: Vishal