Uniform Civil Code- Past, Present and Past

Every step of our’s does involve the legal aspects. In our day-to-day life we do a lot of activities and while doing them a lot of criminal activities are also involved in them such as murder, theft, etc. To govern these activities we(Indians) do have a criminal law, which is equal all over the world. Many activities do not involve criminal aspects like marriage-related provisions, property transfer acts, etc. These activities are governed by Civil laws but it does vary from religion to religion that is different laws are enacted to govern these activities, for different religions. In this article, we are going to talk about the same in a detailed way and will highlight the topics like “beginning of Uniform Civil Code, some acts before independence, etc”.

Introduction

Every religious community has its laws in respect of marriage, divorce, etc but if a Hindu does a murder he will be punished in the same way as a Christian, Muslim, or any person from a different religious community. Uniform civil code (UCC) aims 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. Personal laws are distinguished from public law and cover marriage, divorce, inheritance, adoption, and maintenance.

Why it is in news?

For the past 6-7 months, the bill of Uniform civil code has been introduced two times in the Rajya Sabha as a Private member bill but the opposition urged the chairman of Rajya Sabha and eventually it got blocked. It is expected that the government might introduce the bill in the next Parliamentary session.

Beginning of UCC

The concept of the Uniform Civil Code was first introduced in 1835 in the 2nd Law Commission report. The report says “ Stressed the need for uniformity in the codification of Indian laws relating to crimes, shreds of evidence and contracts but recommended that codification not extend to matters like the personal laws of the Hindus, Muslims and other religious communities which derive their authority from their respective religions. The reason behind the same was the Britishers that is as we Indians were under British rule, therefore, they don’t want to interfere in the religious matters of India and as a result, they were unable to establish Uniform Civil Code. Their main motive was more and more of economic exploitation only”. After this, the revolt of 1857 happened and as a result, the control shifted from the company (East India Company) to the Crown. In 1858 Queen Victoria in her proclamation promised her Indian subjects that absolute non-interference would be there from our side (Britishers) in religious matters.

Contextual Issues

  1. Legitimacy

 Once it could be argued that it was probably wise in 1858 for a foreign colonial power to stay away from areas related to religion and personal custom in the overall interest of maintaining peace. But in independent India, where sovereignty rests with the people, there is no external constraint that can prevent the Indian government to legislate a common uniform personal civil code.

  • Majority viz. Minority

It is not only non-Hindus who may have severe objections to the promulgation of a law that will govern their most inherent beliefs and faith as well as customs and practices. There has been opposition to the principle in question amongst sections of the Hindus as well because of wide variations in customs amongst its many castes and communities.

  • Gender equality

                 It is also known that the Hindu law discriminated against women for a long time by depriving them of inheritance, remarriage and divorce. Their condition, especially those of Hindu widows and daughters, was poor due to this and other prevalent customs. Here the question arises that “Could religious practices be employed to deny basic fundamental rights and freedom to women?” Could not the Uniform Civil Code be employed to rectify the errors of a rigid discriminatory society and bring greater equality and compassion into social life?

Events before and after independence

  • Movement by progressive sections in British-ruled India and women’s organizations led to a spate of laws passed concerning the Hindus which were beneficial to women, such as the:
  •  Hindu Widows’ Remarriage Act, 1856, enacted on 26 July 1856, legalised the remarriage of Hindu widows in all jurisdictions of India under East India Company rule. It was drafted by Lord Dalhousie and passed by Lord Canning before the Indian Rebellion of 1857. It was the first major social reform legislation after the abolition of Sati by Lord William Bentinck.
  • Married Women’s Property Act (MWPA) Married Women’s Property Act 1874 (MWP Act) was created to protect the properties owned by women from relatives, creditors and even from their husbands. Section 6 of the MWP Act covers life insurance plans. Any married man can take a life insurance policy under the MWP Act. This includes divorced persons and widowers.
  •  Hindu Inheritance (Removal of Disabilities) Act, 1928 was enacted to abolish the exclusion from the inheritance of certain classes of heirs, and to remove certain doubts regarding their ability to inherit property. The Act specifies that persons who are diseased, deformed, or physically or mentally handicapped cannot be disqualified from their right to own or share joint-family property unless the law specifies otherwise. This Act essentially abolishes the ancient Hindu legal practice that those who are handicapped are ineligible to inherit property from their family.
  • Women’s Right to Properties Act, 1937 The Hindu Women’s Right to Properties Act 1937, gave a death blow to the doctrine of survivorship. Under this Act, the widow of a deceased coparcener of a Mithakshara undivided family will have the same interest which her husband had while he was alive. It may be noted that the widow has the right to claim partition.
  • The growing tide of legislation on personal issues generated debate and controversy and required a reasoned and measured response from the government of the day.

B. N. Rau Committee of 1941

Officially Hindu law committee was tasked to examine the question of the necessity of common Hindu laws. Committee recommended a codified Hindu law, which would give equal rights to women in keeping with the modern trends of society. However, it must be mentioned that its focus was primarily on reforming the Hindu law following the scriptures.

Discussion continued but was endless, the Hindu code bill lapsed and was resubmitted only in 1952.

Passage of Hindu Code

The provisions had to be passed in separate parts:

  • Hindu Marriage bill was passed in May 1955
  • Hindu Succession Act in June 1956
  • Hindu Minority and Guardianship bill in August 1956
  • Adoptions and Maintenance bill in December 1956.

Despite all this, the question remains to the day that why was the personal law of Hindus alone being codified and why a uniform code for the entire populace was not being attempted by the farmers of the constitution?. The answer to the question was given by G.R. Rajagopal, he said that “an attempt should be made to codify the Hindu law and if this succeeded, and of the measures produced thereby had in themselves intrinsic merits commending the on the universal application, the time would not be far off when other communities might have to follow suit and ask for reconsideration of their law in the light of changed situations.”

How UCC got into the political narrative?

Arguments by Hindu Fundamentalists against Hindu Code-

  • Need to protect the hallowed tradition of Hindu shastras
  • Resentment from the fact that Muslim Personal Law remained untouched
  • Measures have not been circulated to ascertain public opinion and were being pushed through hastily
  • Grant to equal property rights to women threatened the well-entrenched economic rights of the male in society.

A section tried to suggest that the Hindu code was, after all, a communal measure and Uniform Civil Code should have been made instead, to give effect to the secular ideas of the country.

How UCC got into the Constitution?

Nehru accepted that the bill was incomplete. A UCC according to him was essential for the country, but he hesitated in forcing it down upon any community, especially if that community is not ready. In a gesture to indicate the willingness of parliament to consider UCC at some later point in time, it was decided to add the implementation of a UCC in Article 44 as Directive principles. This decision to add UCC as a non-judicial Directive was opposed by progressive women members like Rajkumari Amrit Kaur and Hansa Mehta.

Efforts towards UCC

  • Special Marriage Act of 1954

The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. The Act originated from a piece of legislation proposed during the late 19th century. Marriages solemnized under the Special Marriage Act are not governed by personal laws.

  • Shah Bano Case of 1985

Here in the above-mentioned case, Shah Bano refused to claim her maintenance and as a result, the Supreme court ruled in her favour u/s 125 of CrPC, which applied to all citizens. Supreme Court further recommended that the pending UCC be finally enacted.

Way forward

  • With repeated exhortations by the judiciary, a strong women’s movement and a majoritarian government there is a better chance of getting through now. All Indian Muslim Personal Law Board (AIMPLB) is clear that it shall oppose any attempts to adopt a UCC. In an age when citizens are of paramount significance, and the admitted position is to move towards a society that respects human rights irrespective of caste, religion, region and gender, the imperative to legislate on a UCC cannot be denied.

Conclusion

The future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary.

References

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