THE DEBATE REGARDING THE UNIFORM CIVIL CODE
What is Uniform Civil Code?
- Uniform Civil Code is a part of Part IV of the Constitution which deals with Directive Principles of State Policy (DPSP).
- The Directive Principles are discussed from Articles 36 to 51.
- Though DPSP’s implementation is not mandatory, it functions as a guide or a reference point to the Constitution-keepers.
- As Article 37 says, “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”
- Article 44 states that “the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”.
What does it deal with?
- Uniform Civil Code is one of the most controversial issues enshrined in the Constitution.
- It deals with a proposal to have a common set of laws governing all citizens in matters related to marriage, divorce, inheritance, adoption and maintenance without taking into consideration their religion.
- If implemented, it will do away with the existing personal laws based on the scriptures and customs of each major religious community.
What’s the debate around it?
- So far, Uniform Civil Code has evaded the country.
- It has acquired a political and religious dimension with the BJP and fringe Hindu organisations like the Vishwa Hindu Parishad supporting it.
- On the other hand, the minorities, particularly Muslims, have vehemently opposed its implementation.
- They argue that 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 violate these rights.
What was the high point of Uniform Civil Code?
- It shot to prominence in 1985 in the famous judgment of Supreme Court in the Shah Bano case.
- The 73-year-old Muslim woman sought maintenance from her husband on being divorced after 40 years of marriage under the Muslim Personal Law – by triple “Talaaq” and denial of regular maintenance.
- She won her case in a local court in 1980 and the Supreme court also gave the judgment in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code.
- The Shah Bano case became a major national political debate.
- Fearing the loss of Muslim votes, the Congress government of Rajiv Gandhi supported a Bill in Parliament in 1986 to shield the personal law of Muslims.
- Despite vehement protests from the Hindu right, Left and women’s organisations, Parliament passed the Muslim Women’s (Protection of Rights on Divorce), making Section 125 of the Criminal Procedure Code inapplicable to Muslim women.
- However, it dealt a huge blow to efforts of implementing Uniform Civil Code in the country.
What has the Supreme Court said on the issue?
- Very recently, while hearing a case pertaining to whether a Christian has the right to bequeath property to a charity, the court regretted the fact that the state had not yet implemented a uniform civil code.
- This is not the first time that the apex court has expressed itself in favour of a uniform civil code or taken a dim view of the government’s and legislature’s inability to bring it into being.
- There have been other occasions — like during the Shah Bano case and later in the Sarla Mudgal case — where too the apex court has come out strongly in favour of the enactment of a uniform civil code.
- However, none of these comments are binding on the executive or the legislature and do not amount to orders.
- At best, they exert some moral pressure on the Indian state to move towards formulating a uniform civil code.
On October 12 (2015), Supreme Court observed that there was “total confusion” due to personal laws governing different religious practices.
It asked the Centre whether it was willing to implement Uniform Civil Code in the country and sought a reply within three weeks.