Whenever we take a topic on personal laws, India is the country to look out for. This is because of the fact that 1) presence of different religions within a country, 2) the presence of such religions means they are different in every aspect of personal religious practices such as rules relating to marriage, divorce, etc. These procedures and practices, in fact, incorporate various conflicts of interest between the communities themselves. But, the same shall not be questioned in the presence of religious freedom conferred by the Indian Constitution. Before coming to a conclusion on whether we need a new apex law to regulate us uniformly on the aspects of personal laws, it is important to view arguments for and against the issue of the Uniform Civil code in India.
Family laws in India:
In India, we have different religions, and they have their own practices and procedure for any aspect. These practices have been included in each personal law, that in under Hindu, Muslims, Christians, Sikhs, Parsi, Jain, etc. It is important to note that these laws are nothing but codifications of earlier exiting practices under each religion. They generally form as Family law, and in case of any conflicts in each division of laws or any part under each personal law, the laws itself prescribe the procedures, and if the same is also conflicted, then the Judiciary comes into the picture as these forms part of laws and rules, and such laws shall be interpreted, questioned and are also resolved in case of any contradictions with the supreme laws such as Constitution.
The problem starts right here, that is, while the Judiciary interprets, it comes to know huge backlogs exiting in procedures under each personal law. It is not contended that these religious practices never serve justice, but these laws sometimes render injustices to certain people. And one such example is with respect to the registration of marriages, and if the same is not done, we have seen the implication of the same taking away the rights and interests of women. This is one such example that pushes every legislator to come up with something called, Uniform Civil Code.
Article 44 and Constituent Assembly Debate:
Article 44 of the Indian Constitution is the direct provision that gives power or in other words, it enables the government to come up with the Uniform Civil Code. It reads as follows,
“The state shall endeavor to secure for its citizens a uniform civil code throughout the territory of India”.
Draft Article 35 of the Draft Indian Constitution dealt with the Uniform Civil code. Let us look into the constituent assembly debate that occurred on this draft so that we get to know the background in coming up with Article 44 of the Constitution that exists now. The debate took place on 23rd November 1948, and the same was mostly opposed by the Muslim community. Their arguments were on three main grounds are, 1) Uniform Civil Code would disable the right of religious freedom, 2) the same would affect the Muslim community, 3) such a law should not take place without the consent of the religious community. One disadvantage of this argument was that the same was concentrated more on the impacts on one community but not dealt with the other. This would be the direct negation of personal laws that exist in Hindu religions or Christianity or others etc. This line of criticism was drawn by the supporting members of the assembly, stating that others are also required to deal with it. Many members supported the same on the grounds that,
UCC would bring equality and justice to the entire women community of the society,
They rejected the argument that it disables the freedom of religion, as UCC comes under the purview of social reforms and welfare legislation, and the same is allowed under Directive principles.
The above two arguments continue to be used and backed by the supporters of UCC in India today as well, and that is really valid. But, this article does not look into its justiciability, rather covers the relevant facts existing on UCC.
Why conflict over interests continues?
The main point that we should notice when we look at UCC is the fact they bring up a direct conflict between the two main principles of our Constitution. That is between the Directive Principles that ensure the social justice and welfare of the people versus the fundamental right to freedom of religion under Part 3 of the Constitution. Dr. B.R. Ambedkar opined that framing of UCC should not invoke the Muslims to revolt against the state. Sardar Vallabhai Patel also observed that UCC is not important than religious freedom. It seems that these sentences and opinions have indirectly restricted the policymakers from framing a law on UCC till today. Later politicians have also followed the same, and some have opined otherwise as per their ideological stand and vote bank requirements.
India’s current attitude on UCC:
When we look at two main organs of our democracy, that is, the Legislature and Judiciary may be the temporary executive executives as well, it seems that the talk on UCC has increased, and views are changing from the earlier standpoint. A few of the examples that can be cited from the side of the Judiciary is the recent opinion of the Honorable former Chief Justice of India SA Bobde, which drew attention in the month of April. He praised the existing UCC in Goa and requested the intellectuals to visit the state of Goa for its better administration of justice. In a way, he requested the lawmakers to immediately visit this area which has not been attempted to be touched by the policymakers. His opinion, we believe, must have been backed with the possible women’s welfare measures that would be seen through the implementation. On the other hand, the Union government’s agenda over UCC in its manifesto also brings us to note its standpoint on enacting UCC sooner or later.
Conclusion:
Having seen the above facts and points, we can state that the current position on UCC by these stakeholders informs their endeavor to enact UCC. While doing so, all the stakeholders should make sure that Constitution is preferred over all other agendas and not politicize the topic for vote banks. The Indian Constitution is supreme, and nothing is more than that.
