Published on: August 06,2021 11:05 IST
By Meher Sunil Dabrai
Introduction
India is a diverse and secular country. Due to this, the laws have been devised differently for people belonging to different religious groups. The laws have been formulated in such a way so as to incorporate the cultural and religious scriptures and customs into the legal system.
These laws are known as personal laws. These laws are only restricted to civil and family related matters such as divorce, adoption, succession and so on. They do not govern any part of the criminal laws in the country.
The bill is based on the belief that while India is a “Socialist, Secular, Democratic, Republic”. The diversity is the essence of India but diversity in law is unjust.
Article 14 of the Indian Constitution states that every citizen is in the same pedestal in case of the law of the land but there has always been a gap between making laws and their implementation.
The Uniform Civil Bill intends to establish a code that mainly governs all the personal matters of the citizens of India without discriminating irrespective of the religion to ensure the fundamental rights and the Constitutional rights of the citizens of the country.
In a country like ours, which is the most diverse country in the world, a Uniform Civil Code is an extremely debatable topic which really brings out the question as to whether it will really be a benchmark t the Indian Personal laws or whether it will put an end to the diverse personal laws in the country.
The proposal of the Bill
Article 44 of the Indian Constitution states that the State shall endeavor to secure for the citizens of a uniform civil code throughout the territory in India.
The Uniform Civil Code is meant to replace the laws that are currently applicable to various respective communities which are inconsistent with each other including the Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Indian Divorce Act, the Parsi Marriage and Divorce Act.
Meanwhile certain laws such as the Sharia laws have not been codified and solely based on their religious scriptures.
The Uniform Civil Code includes certain concepts that are to be made uniform irrespective of whichever community the person may belong to. Some of the proposals under the Uniform Civil Code include monogamy, equal rights for son and daughter over inheritance of paternal property and gender and religion neutral laws regarding charity, divinity, guardianship and sharing of custody.
The Hindu society is not affected much by this bill as the Hindus have been following the Hindu Code Bills for a very long time.
The Shah Bano Judgement
Article 44 of the constitution states that the State shall secure a Uniform Civil Code throughout the territory of India. This article is often ignored and neglected by the readers and the framers of the law alike.
There has been no evidence for any movement that has been aimed at surrounding a common code for the entire nation at large.
A conviction was made for the Muslim people to take a lead in the matters to change their own laws. A typical civil code will help in coordinating the laws that have conflicting belief systems.
In the case of Mohd. Ahmed Khan Vs Shah Bano Begum,[1] the Chief Justice at the time, Y.V. Chandrachud observed that a common civil code for all the citizens of India would help in the removal of all the discrimination amongst the people of different religions and would be helping in being lawful.
Legal Status and Prospects
The Uniform Civil Code Bill has been included in the manifesto of the Bharatiya Janta Party for the 1998 and the 2019 elections and was even proposed to be introduced in the Parliament in the year 2019 by Narayan Lal Pancharya.
The Bill was strongly opposed by some of the MPs in the Parliament and therefore, it was eventually withdrawn to make certain amendments. The bill was introduced again in the March 2020 but was not introduced again.
In the meantime, a plea was filed in the Delhi High Court for the establishment of a judicial commission or an expert committee to direct the central government to draft the Uniform Civil Code Bill within three months.
Following this, many more pleas were filed in many other High Courts across India and the plea was moved to the Supreme Court to avoid any discrepancies and inconsistencies in the High Court orders of different states. The draft would further be published on the website for 60 days to facilitate extensive public debate and feedback.
Steps that have already been taken towards the Uniform Civil Code
The adoption regulations that have been laid down under the Juvenile Justice (Care and Protection of Children) Act as well as the Special Marriage Act that governs marriages and divorces of the citizens of India irrespective of their religious beliefs are some major steps that have already been taken towards the establishment of the Uniform Civil Code in India.
The Juvenile Justice Act that has the various adoption laws is major step towards allowing Muslims to adopt as Islam does not permit adoptions by the Muslim community.
On the other hand, the Special Marriage Act allows the people from different communities to marry each other thereby breaking the religious divide that usually takes place in inter-religious marriages. Any couple is allowed to register their marriage under the Special Marriage Act.
Registering the marriage under the Special Marriage Act is a way in which a married couple starts being governed by the Common law in the country rather than being governed by the private or religious laws.
It must be noted that as of now, this is only an option that is available to the citizens.
The existence of the Special Marriage Act does not bar the citizens from registering the marriage under their own personal laws and the couples have the right to choose which laws they want to be governed by at the time of registering the marriage.
Pros of the Uniform Civil Bill
- The uniformity in the laws will give equivalents status to all the residents irrespective of their religion, class, standing, sex etc.
- To avoid confusions and discrepancies that may occur between the different personal laws that may violate Article 14 of the Constitution.
- To avoid the amendments of the various personal laws.
Cons of the Uniform Civil Bill
- The diverse religious beliefs and their rigidity makes it difficult to establish a typical and uniform arrangement of rules however the Government is attempting to think of regulating these principles.
- It may be considered to be contradictory to Article 25 of the Constitution which states that all the people are equally entitled to freedom of conscience and the right to profess and practice any religion of their choice which is a Constitutional right that is contradictory to the concept of the Uniform Civil Bill.
Conclusion
The Uniform Civil Code can either be a welcome change or a huge conflict of interest between the people of various religious beliefs. The concept of the Bill is to establish a secular nation but the conflict between the various fundamental rights of the constitution need to be kept in mind while framing the code.
Another point that shall be notes is that for any Bill to become an Act it needs to be have a two-third majority vote which is a condition that had not been fullfiled in this case as the Bill was passed during the emergency without a majority vote.
Taking into account all the factors that have been mentioned in the article, the Uniform Civil Bill may either be welcomed with open arms or may be the cause of immense social unrest across the country but all that depends solely on the framework and the drafting of the code which is yet to be witnessed.
References
- 164.100.47.5
- blog.ipleaders.in
- main.sci.gov.in
- timesnownews.com
- .thehindu.com
- economictimes.indiatimes.com
- Mohd. Ahmed Khan Vs Shah Bano Begum 1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945] ↑