This article is submitted by:
- Pulkeshwar Rajpurohit
“Injustice anywhere is a threat to Justice Everywhere “- Martin Luther King
On 26th November, 1949 we, the individuals of India provided for ourselves a constitution, comprising India into a [Sovereign, Socialist, Secular, Democratic and Republic][1]which ensures Justice, Liberty, Equality and Fraternity. The Constitution of India is the grundnorm which gives every one of its residents, Fundamental Rights under Part III and the system to implement them. Likewise, Directive Principles of State Policy under Part IV accommodates rights which are non-enforceable however the principles set down are all things considered central in the administration of the nation and it is the obligation of the state to apply these principles in making laws.[2] One such Directive Principle is given under Article 44 which peruses:
“The State shall endeavour to secure for the citizens uniform civil code throughout the territory of India”
Uniform civil code: Reasons given for its upcoming need –
The Colonial India saw huge numbers of her laws getting arranged by the British such as the criminal law, the law of agreement and move of property and so forth these laws were made by the British while stripping ceaselessly with all strict, social elements. Consequently, we see that the law of agreement is absolutely along the law that existed in Great Britain around that time. The just circle which was abandoned was the individual laws which represented different parts of the ways of life of the individuals, for example, marriage, family, progression and so forth The British considered such civil points to come quite close to the religion and along these lines explicit strict principles ought to oversee these civil laws. The exchange of power from the colonizers to the colonized in our country was defaced by the high public pressures. Reclamation of common agreement which was debilitated generally was in the brain of the Constitution producers. Article 35 of the draft Constitution of India was added as a piece of the directive principles of the state policy to some degree IV of the Constitution of India as article 44. It was fused in the Constitution as a viewpoint which would be satisfied when the country would be prepared to acknowledge it and the social acknowledgment to the UCC could be made.
Constituent Assembly Debates –
The Sub-Committee of the Fundamental Rights had included UCC as one of the Directive Principles of State Policy. Article 35 of the draft Constitution read: “The State will try to secure for residents a Uniform Civil Code all through the region of India”. However, it was suggested that while a UCC is profoundly attractive, its application ought to be made on a totally deliberate basis.
The movement was unequivocally challenged by the Muslim delegates on the ground that impedances in Muslim Personal Laws would add up to encroachment of their Fundamental Rights. Mohammed Ismail Sahib, Naziruddin Ahmed, Mahmood Ali Baig Sahib Bahadur and B. Pocker Sahib Bahadur proposed different changes to Article 35 of the draft Constitution. They looked for the inclusion of a stipulation with the impact of ‘nothing in this Article will influence the individual law of the resident’. No people group shallbe obliged to surrender its very own law which will not be changed aside from with their earlier approval.
AlladiKrishnaswamiAyyar convincingly invalidated their contentions by saying that a civil code runs into each branch of civil relations to the law of agreements, to the law of property and comparable matters. “By what means can there be any issue with the overall statement here that the State will try to make sure about a uniform civil code all through the region of India?” K.M. Munshithen drew the consideration of the House towards the Hindu Law Draft which was before the administrative gathering. He contended that the greater part of the arrangements of the new Bill oppose the orders by Manu andYagnyavalkya.He at that point underlined that after all we are a propelling society and in a phase where we should bring together and solidify the country by each mean without meddling with strict practices.
Judicial Developments –
In 1985, without precedent for Indian history, the Supreme Court in Mohammad Ahmed Khan v. Shah Bano Begum guided the Parliament to institute a UCC. The court said that it involves lament that Article 44 of our Constitution has stayed a dead letter. A typical Civil Code will help the reason for public reconciliation by eliminating dissimilar loyalties to laws which havclashing belief systems. This was repeated in Jorden Diengdeh v. S.S. Choprawherein the Court was of the view that an administrative mediation was justified so as to accommodate a uniform code of marriage also, divorce. The court in SarlaMudgal v. Association of India[3]demanded the requirement for a UCC and held that basic rights identifying with religion of individuals from any network would not be influenced thereby.
Arguments and Counter Arguments –
One of the contentions given by the minorities against the order of Uniform Civil Code is that it encroaches their Fundamental Right to Freedom of Religion. It is their Fundamental Right to profess, rehearse and engender religion by keeping their own laws. Yet, a legitimate inquiry emerges as to how a training (like triple talaq) might be considered inside the domain of strict movement in spite of the way that it isn’t endorsed by the strict text? In Muslim Law, talaq-al-bidat is considered as a tainted type of divorce. There is no authorization in the Quran with respect to talaq-al- bidat and shias don’t perceive its validity. Even however in opposition to the Shariat, the sunnis follow this type of talaq as an unpredictable structure. Actually, numerous Muslim nations have improved their Muslim Personal Laws and nullified sex biased practices like polygyny and triple talaq. The act of having more than one spouse is completely denied in Tunisia and Turkey and in nations like Pakistan, Bangladesh, Indonesia, Iraq, Somalia, Syria, Egypt, Morocco, Iran it is seriously restricted. Also, the act of triple talaq has been annulled in Egypt, Jordan, Sudan, Indonesia, Tunisia, Syria and Iraq. In Pakistan and Bangladesh any type of extra-legal talaqis notvalid except if affirmed by an Arbitration Council. If Muslim nations can change Muslim Personal Law then for what reason are Indian Muslims living under laws passed during the 1930s? The individual laws of different networks including Muslims ought to be improved like that of changes in Hindu laws as proposed by 174th Law Commission Report.
“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shallnot be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
Adjusting Right to Equality and Freedom of Religion –
Fundamental Rights in India are not total in nature and the Right to Freedom of Religion as given under Article 25(1) of the Constitution is no exemption. Article 25(1) ensures opportunity of religion, opportunity of still, small voice, and opportunity to profess, rehearse and spread religion to all people in India. And yet it is “subjected to the other provisions of this Part” counting Right to Equality under Article 14 and 15.
The creators of the Constitution while drafting the said arrangement looked to recognize the pith of a religion and other common exercises which may be related with strict practice however didn’t shape a piece of the center of the religion. They acknowledged the rule that if a strict practice covers a mainstream movement or falls inside the field of social change or social government assistance, it is available to Parliament to make laws about it. [4]The enactment so ordered will not encroach the Fundamental Right to Freedom of Religion of the minoritiesand with this end they embedded Cl. 2(a) as follows:
“Nothing in this article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activities which may be associated with religious practices.”
Conclusion –
As to Uniform Civil Code there is an absence of mindfulness among the individuals particularly in the minorities. The facts confirm that they don’t have a clue about the real importance and degree of the code. They believe that on the off chance that the law gets authorized, at that point they need to follow the strict acts of the dominant part also, subsequently they will lose their personality. So the initial step ought to be to make the individuals mindful as to what is the real significance and extent of UCC. We ought not overlook the qualities and principles typified in the pre-eminent tradition that must be adhered to make sure about social equity; freedom of conviction, confidence and love; correspondence of status; and solidarity and uprightness of the country. There ought to be a harmony between Right to Opportunity of Religion and Right to Equality. Uniformity in variety ought to be the principle objective of the code. In a nation like India where Rule of Law wins, the Constitution can’t be docile to individual laws. The unfair practices like triple talaq which are in camouflage of strict practices and customs must be oppressed on the standard of Article 14 and 15. Right to Equality which is the essential structure of the Constitution ought to be given need over the so called strict practices. In the expressions of Leila Seth, “If we can’t give them all the rights in one go, let us progress little by little, but let us not be stagnant. Let us move towards gender-just laws and a uniform civil code”
“The views of the authors are personal“
Biblography –
1. The Constitution of India.
2. Henry Campbell Black, ‘Black’s Law Dictionary’ (6th edn, West Publishing Co., 1995)
3. Abul Bashar Mohammad Abu and NomanSaeedAhsan Khalid, ‘Uniform Family Code: An Appraisal of Viability in Pluralistic Bangladeshi Society’ (2011) 16 The Chittagong University Journal of Law <http://www.culaw.ac.bd/files/jurnal-2011/Vol.%20XVI,%202011%20(p.81-109).pdf>
4. Constitutent Assembly Debates Official Report, Book No. 2, Vol. No. VII, ‘4 November 1948 to 8 November 1949’, LokSabha Secretariat, New Delhi, 5th Reprint 2009.
5. B. Shiva Rao, The Framing of India’s Constitution vol 2 (1st edn, Universal Law Publishing Co. Pvt. Ltd. 2012) 206
6. Saeed Khan, ‘Stop Muslim Polygamy, its ‘heinously patriarchal’ says Gujarat High Court, pitching for a Uniform Civil Code’ The Economic Times (Ahmedabad, 6 November 2015) <http://economictimes.indiatimes.com/news/politics-and-nation/stop-muslim- polygamy-its-heinously-patriarchal-says-gujarat-hc-pitching-for-a-common-civil- code/articleshow/49683665.cms>
7. BhadraSinha, ‘SC to examine Muslim personal law, aim to end gender bias’ The Hindustan Times (New Delhi 28 October 2015) <http://www.hindustantimes.com/india/sc-to- examine-muslim-personal-law-for-polygamy-triple-talaq/story- qpLYAycFxuLkHyvv8zCRTL.html>
8. UtkarshAnand, ‘Uniform Civil Code: There’s total confusion, why can’t it be done, SC asks govt’ The Indian Express (New Delhi, 13 October 2015)<http://indianexpress.com/article/india/india-news-india/uniform-civil-code-supreme-court-asks-govt-why-cant-it-be-done-tell-us-your-plan/>
9. M. Hidayatullah, Mulla Principles of Mahomedan Law (19th edn, Lexis Nexis 2011) 261
10. Durga Das Basu, Commentary on the Constitution of Indiavol 3 (8th edn, Lexis Nexis 2008) 4132
11. Law Commission, Property Rights of Women: Proposed Reforms under the Hindu Law (Law Com No 174, 2000) <http://www.lawcommissionofindia.nic.in/kerala.htm>
12. Leila Seth, ‘A Uniform Civil Code: towards gender justice’ (2005) 31 India International Centre Quarterly 40
13.Prof. MP Jain, Indian Constitutional Law (6thedn, Lexis Nexis 2010) 1510
