Recently, the Delhi High Court said that it backs a Uniform Civil Code. Article 44 of the Indian Constitution clearly states that the state shall endeavour to adopt a Uniform Civil Code for the citizens throughout its territory. There is enough debate in the air about the gradual adoption and possible implementation of the code. However, the ambiguity of such an aspirational decision is a matter of concern. First, it is crucial to understand the crux of UCC before jumping to further conclusions.
A Uniform Civil Code (UCC) would provide one law for all its citizens in personal matters concerning marriage, divorce, adoption, inheritance and so on.
Why Is There A Debate Over It?
Article 44 comes under the purview of Directive Principles of State Policy. Article 37 of the Indian Constitution mentions that Directive Principles are not justiciable in the court of law. However, the principles are fundamental in governance. Fundamental rights are mandatory to be adhered to, whereas Direcctive Principles are not. In Article 44, the Constitution specifically mentions that the state "shall endeavour to", which means that the state shall attempt to attain a specific objective. It does not mandate the citizens to follow the directives.
UCC And Its Liaison With Goa
Goa's Portuguese Civil Code of 1867 is an alien code left behind by the Portuguese rulers of then Goa. The eventual continuance and non-enforcement of the Hindu Marriage Act of 1955 and Hindu Succession Act 1965, or Shariat (Application) Act 1937 and Dissolution of Muslim Marriage Act of 1939 might have been perceived by many as a negation of the applicable law for the nation. Goa's civil code is segregated into four divisions: civil capacity, acquisition of rights, right to property, and the breach of rights and remedies. The law begins in the name of God and Dom Luis, the King of Portugal and Algarves. The Constituent Assembly of India had rejected HV Kamath's proposal of a similar acknowledgement of God for the Constitution.
Why Could UCC Be crucial?
Several voters have supported the idea of a uniform code. The laws that govern personal decisions like marriage, divorce, inheritance and so on have origins in Hinduism. Some people argue that the laws that cater to a vast population and are not gender-equal. India's history is not very glorious as far as gender equality is discussed, and a similar pattern is observed in the existing laws. Therefore, a standardized code would place all genders on the same pedestal.
Enforcement of a uniform code would help society accept the sky-high aspirations of the country's youngsters. Over 55 per cent of the Indian population comprises the younger generation. Therefore, the demand for periodic modernization is valid. Youngsters prefer living in a society that offers respect and equal treatment to one and all. The goal will help in realizing multiple aspirations to inspire the next generations. UCC would facilitate this by bringing in a law that would put previous differences behind and benefit all.
The feeling of oneness could potentially increase the sense of patriotism. People would understand and relate to each other better since everyone is governed under the same personal laws. The adoption of UCC would diminish any discrimination and thereby promote national integration.
Why Do Some Oppose UCC?
In 2017, the then Law Commission Chairman Justice Balbir Singh Chauhan said, "UCC is not possible and not even an option". Many women activists and minority communities have pushed for uniform rights rather than a single code. Their argument is UCC would be fair only if it caters to the needs of all communities, which is practically impossible in a country as diverse as ours. They argue that religions like Sikhism, Jainism, Buddhism and the like would lose a number of their practices owing to UCC. There should be an expansion of civil rights like domestic violence and the Juvenile Justice Act, which would be an umbrella to social evils.
A Roadmap Of An Ideal UCC
An ideal UCC is better discussed over tea than enacted in real life. Arriving at an equal ground unanimously is almost impossible. Several rituals would have to be stopped, and practices unfollowed to reach the desired objective of the code. While on the one hand, polygamy and arbitrary divorce would reduce in Islam, on the other hand, the Hindu undivided family would also not reap tax benefits. If reservations are extended to one community, the rest would also demand it. At the same time, a lack of reservation would compromise the development of some essential communities.
Taking note of such contrasting complexities, the Union government had advised keeping personal laws out of the purview of the rights mentioned in the Constitution. However, the drafting of the Hindu Code Bill showed an opposite stance. Before 1955, the Hindus who constituted the majority were also governed by their laws based on customs, traditions and principles.
The question has been lingering for decades. One must understand that personal laws are not governed by religion, even though they are practised within religious communities. Religions have their essence rooted in morality and spirituality, whereas personal law concerns ceremonies like marriages and divorces. Religion and private law are two entirely different concepts. Some argue that uniformity in personal laws would be against democracy since it does not grant 'enough freedom'. However, in that case, differing punishments in criminal cases should also be considered undemocratic. In contrast, it would enable justice to all genders irrespective of their castes and social backgrounds.
Implementation of the Uniform Civil Code seems unrealistic as of yet. Without a broad consensus for the enforcement of UCC, the Directive Principle remains a principle. It is sad to see that politics drives almost everything in our country and may not help evolve a national consensus. So, civil code remains a far-reaching goal