Uniform Civil Code – A Constitutional Obligation of the Law Makers

Bharat claims to be secular country. Secularism means religious neutrality and non interference in the matters of the State by religion and vice versa. Critics who oppose uniform civil code argue that such a code will infringe upon the personal and religious rights that are hitherto protected by the constitution through the respective personal laws.

Matters related to religion can be broadly classified as under-

  1. Man and religion
  2. Man and society

Religion is an individual belief and one is free to practice a religion of his choice. As long as the religious practices of individuals do not disturb the social order it would be acceptable. In other words, the conduct of an individual in adherence to certain religious practices in his personal/ private life as well as public life would be acceptable as long as it does not disturb the law and order or social justice. Therefore, a common civil code becomes imperative in order to maintain social order and social justice in a pluralistic society like Bharat.

In most of the western countries the laws of marriage, divorce and inheritance are uniform for all citizens even though there is absolute freedom with regard to worship, dress and other religious practices. Every religion will have traditionalists as well as modernists who keep defending or arguing their views on religious practices vis-à-vis social reforms. The fact is that due to globalization the countries are gradually moving towards multi linguistic and multi religious regimes and therefore the need for a uniform civil code is realized as imperative for the peace, harmony and the progress of all countries.

Pakistan, Afghanistan, Iran, Iraq, Saudi Arabia, Yemen and few other countries follow sharia laws in all walks of life. Egypt, Malaysia, Sri Lanka, Singapore, Bharat and few other nations follow sharia laws for the personal laws of Muslims. Sharia laws are applied in varying degrees in the countries like Greece, Indonesia, UAE, Nigeria and Thailand. Interestingly in Turkey which is a muslim majority nation, sharia is not part of the legal system. Israel follows different personal laws for jews and muslims. Lebanon has nearly 15 different personal laws and there are autonomous religious courts that are given the jurisdiction to administer the respective personal laws.

Seen from the broader perspective, it is an accepted fact that in many cases adoption of personal laws have resulted in violation of human rights and more particularly leading to gender discrimination. This can be attributed to continuing the age old practices that may not have relevance to the current scenario and adherence to patriarchal form of social norms that are losing their relevance in the modern era.

The Bharatiya Parliament discussed the report of the Hindu law committee during the 1948–1951 and 1951–1954 sessions. However, due to opposition from section of Hindus a diluted version of this bill was passed by the parliament in 1956, in the form of four separate acts, the Hindu Marriage ActSuccession ActMinority and Guardianship Act and Adoptions and Maintenance Act. As a compromise formula it was decided to add the implementation of a uniform civil code in Article 44 of the Directive principles of the Constitution stating, “The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.”

Goa is the only state in Bharat that has uniform civil code for all its residents bequeathed from the erstwhile Portuguese customs. Of course there is also criticism on the Goan uniform civil code saying that it is in favour of certain dominant class/ caste.

In July 2015 the Supreme Court said religion must be kept at a distance from law in a secular country like Bharat and favoured implementation of Uniform Civil Code as enshrined in the Constitution. In October 2015, Supreme Court of Bharat asserted the need of a Uniform Civil Code and said that, “This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court”.

The very fact that the matter of uniform civil code is included under the directive principles but not under the fundamental rights of the constitution indicate the intention of the law makers that this issue is to be resolved by discussion and consensus but at the same time reminding the future law makers that Bharat needs a uniform civil code. 

Unfortunately our law makers have used this issue as a political tool for their vested interests for appeasement of the religious minorities. It is very sad and ironical that on one side the government under the pretext of endowment ministry controls the finances of several Hindu temples but on the other side resorts to appeasement of other religious minorities by giving financial aid and even sponsoring their pilgrimages!!! This negates the very spirit of secularism i.e., religious neutrality as enshrined in the Bharatiya constitution. 

Interestingly  article 15. (1) of the constitution which is a part of fundamental rights, says, ”  The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. “

Therefore, deferment of uniform civil code due to political compulsions of the parties for an indefinite period goes against the fundamental rights of the people and violation of the article 15 (1). It is high time that the government steps out from associating itself with the religious activities by disbanding the endowments ministries, leave the management of all religious establishments to the people of the respective religions, upholding the true secular spirit of the constitution.  The law makers should come to a consensus at an early date to evolve a uniform civil code covering –marriage, divorce, inheritance, adoption and maintenance in order to address the issues of violation of human rights and gender discrimination. 

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About the Author

B.N.V. Parthasarathi
Ex Senior Banker, Management and Financial Consultant, Visiting faculty at premier B Schools and Universities. E mail- [email protected]