GS 2: Important aspects of governance, transparency and accountability.
Uniform civil code is the ongoing point of debate regarding the Indian constitution's mandate to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Article 44 of the Directive Principles expects the state to apply these while formulating policies for the country. Apart from being an important issue regarding secularism in India & fundamental right to practice religion contained in Article 25, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. Although Article 44 of the Indian Constitution guarantees UCC to all citizens, the debate arose when the question of making certain laws applicable to all citizens without abridging the fundamental right of right to practice religious functions. The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law, permitting unilateral divorce, polygamy and putting it among the legally applying the Sharia law.
The Importance of Uniform Civil Code
Majority of family laws were perceived as an approach since it was observed to be truly established and politically consensual. From chronicled investigations it can be followed out that, however the Mughals had cut out an enormous domain and built up an efficient criminal equity framework, they abstained from presenting a uniform family code. In spite of the fact that a portion of the Mughal rulers came in the method for Hindu religious practices by obliterating their temples, they sometimes interfered with the Hindu personal law. Indeed, even Mughal Emperor Akbar, who attempted to declare his new religion, “Din-i-Illahi”, did not alter the Hindu personal law. For instance, he permitted the act of sati to proceed, however it was ethically offensive and additionally prohibited in Shariah, as per which the practice added up to suicide and in this way was not admissible in Islam.
After the British arrived in India they adjusted the effectively working legal order. It is with regards to socio-political foundation of contemporary India that the British have no arrangements to present a Uniform Civil Code for all religious groups as they had done in regard to the criminal justice system. Moreover, the Indian rebellion of 1857 which undermined the British lead in India sent the political flag to England that it is better to refrain from interfering with the social existences of the Indians and put a brake on British endeavours to change the Hindu personal legal codes and social traditions. Regarding policy matters, the British government reacted by assuming control over the organization and broadcasting that it would cease from all impedances in the social existences of Indians; in actuality, it would ensure all their religious laws.
The British political sense about respecting the local sentiments to broaden their rule was evidenced from the earliest starting point itself. The reality of the matter is that if a sensible normal individual law is sanctioned, it will help wipe out numerous unfair practices common over the groups and will likewise reinforce the solidarity and respectability of the country. An arrangement of laws to oversee individual matters of all residents independent of religion is the foundation of genuine secularism. This sort of change would not just help end gender discrimination on religious grounds additionally reinforce the secular character of India. They likewise served to renew a countrywide debate on consummation across the board sexual orientation separation, particularly on religious grounds.
Does India not already have a uniform code in civil matters?
Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc. States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws. Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List. But “personal laws” are mentioned in the Concurrent List. Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.
Is there one common personal law for any religious community governing all its members?
All Hindus of the country are not governed by one law, nor are all Muslims or all Christians. Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments. The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed. Muslims of Kashmir were thus governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law. Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
In the Northeast, there are more than 200 tribes with their own varied customary laws. The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Even reformed Hindu law, in spite of codification, protects customary practices.
The judiciary on Uniform civil code
he Writ petition by Shayara Bano in the Supreme Court questioning the legitimacy of the “triple talaq” has brought into the general population circle the open deliberation on the uniform civil code for all of India. In such arguments, the Uniform Civil Code is set as a solitary answer for the various issues of the numerous personal laws in India. It is a thought that has received the backings of the courts, numerous associations working for women’s rights. The instance of Mohd. Ahmed Khan v. Shah Bano Begum and Others might be the first case where the Supreme Court exhorted the Central Government to enact a “uniform civil code”. In 1985, the Supreme Court decided for Shah Bano, who had moved the apex court looking for maintenance under Section 125 of the Code of Criminal Procedure after her husband pronounced talaq against her. The then Chief Justice, Y. V. Chandrachud, observed that a uniform civil code can help the cause for national coordination by method for expelling unequal loyalties to law. The Court directed the Parliament to outline a common civil code.
Following a decade, in Sarla Mudgal, President, Kalyani and others v. Union of India and others the Supreme Court has coordinated the then Prime Minister P. V. Narsimha Rao to investigate Article 44 of the Constitution which urges the State to secure a uniform civil code which, as per the court is basic for both protection of the abused and advancement of national solidarity and respectability. In Lily Thomas, Etc. v. Union of India and Others the court could not direct the centre to present a uniform civil code, but that did not prevent the Supreme Court from affirming the desirability of such a code and this time with regards to the succession.
The Supreme Court in ABC v. The State (NCT of Delhi) lamented the absence of a Uniform Civil Code with regards to the guardianship of Christian child, without going into why a change in the Guardians and Wards Act, 1890 would not suffice. Through this judgment the Supreme Court allowed a single mother of Christian religion the privilege to apply for sole guardianship of her child without the assent of his natural father.
Gender discrimination and Uniform civil code
The reaction of the women’s movement to a Uniform Civil Code has taken a wide range of structures. In 1937, the All India Women’s Conference initially enunciated the desirability for a quality uniform civil code for all religious groups. This request kept on being broadened by bigger segments of the women’s movement until the late 1980s. In the mid 1990s, be that as it may, there was impressive reconsidering. By 1995, what had risen was an expansive scope of positions, from the proceeded with interest for a Uniform Civil Code, to by and large dismissal of such a move and rather, a call for changes inside every religion’s close to home laws. The general agreement in the women’s development before the finish of the 1990s was that the crusade for sexual orientation just laws ought to be led at three levels; in the first place, the support for endeavors to change personal laws; second, a push for enactment in ranges not secured by either mainstream or personal laws and in this manner dodging a headto-head encounter with groups and common governmental issues and finally, setting up a more drawn out term, exhaustive, sex only structure of rights covering regions secured by personal laws as well as to incorporate people in general area of work which ought to be accessible to all subjects.
Amid the debate in the Constituent Assembly, Dr. B.R. Ambedkar, while supporting the need to outline a Uniform Civil Code, communicated the expectation that its application may be absolutely intentional. He additionally stated: “I personally do not understand why religion should be given this vast and expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, we are having this liberty in order to reform our social system, which is full of inequities, discriminations and other things which conflict with our fundamental rights.”The Constituent Assembly while debating Article 44 of the Constitution had no clear concept of what the Uniform Civil Code would be.
In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Jawaharlal Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole. Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
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