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EDITORIAL ANALYSIS : Legitimacy Of a uniform civil code

 

Source: Indian Express, The Hindu

 

  • Prelims: Uniform civil Code, Directive Principles of State Policy etc
  • Mains GS Paper II: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc

 

ARTICLE HIGHLIGHTS

  • Prime Minister addressing workers during the “mera booth sabse majboot” programme in Bhopal reminded the country of the government’s obligation and duty to implement the Uniform Civil Code (UCC) envisaged in the Constitution.

 

INSIGHTS ON THE ISSUE

Context

Uniform Civil Code:

                

  • It provides for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
  • Article 44: It lays down that the state shall endeavor to secure a UCC for the citizens throughout the territory of India.

 

Constituent Assembly about the UCC:

  • Sub-committee on fundamental rights(headed by Sardar Vallabhbhai Patel): It decided that securing a UCC was not within the scope of fundamental rights.
  • Member Naziruddin Ahmad from Bengal: UCC would come in the way of Article 19 of the draft Constitution-now Article 25(which guarantees the right to freedom of religion subject to public order, morality, and health).
  • Member K.M. Munshi: UCC will promote the unity of the nation and equality for women.
  • B.R. Ambedkar: He stated that the Article “merely” proposed that the state shall endeavor to secure a UCC, which means it would not impose it on all citizens.

 

Article 44 of the Constitution:

  • The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India’.
  • The language of Article 44 reveals the unambiguous intention of the framers of the Constitution and that they felt the UCC was in the national interest.

 

The legitimacy of UCC stems from three crucial sources:

  • Constitution of India: The Constitution serves as the guiding light, embodying the principles of justice, gender equality, and secularism forms the bedrock of the UCC.
  • Constituent Assembly debates: The Constituent Assembly debates offer valuable insights into the intent behind promoting a common civil code.
  • Supreme Court judgments: They have consistently reaffirmed the significance of the Constitution and its fundamental values.
    • While interpreting personal laws and addressing conflicts between customary practices and fundamental rights.

 

Benefits of UCC:

  • UCC can protect against discrimination in matters pertaining to divorce, maintenance, adoption and succession.
  • The UCC seeks to establish a common set of civil laws for all citizens, regardless of their religion and culture, thereby promoting equality and ensuring justice for all.

 

Judicial stand:

  • Sarla Mudgal (1995): Court said:
    • It appears that the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it has been lying since 1949.
    • The governments have so far failed to make any effort towards unified personal law for all Indians.
  • Indian Young Lawyers Association case (2018):
    • In the constitutional order of priorities, the right to religious freedom is to be exercised in a manner consonant with the vision underlying the provisions of Part III (Fundamental Rights).
    • Personal laws should be constitutionally compliant and in conformity with the norms of gender equality and the right to live with dignity.
    • The supremacy of fundamental rights over customary law ensures that various freedoms guaranteed to all citizens under the Constitution are safeguarded.

 

Arguments in favour of UCC:

  • Uniformity in cases: India does have uniformity in most criminal and civil matters like the Criminal Procedure Code, Civil Procedure Code etc
  • Gender Justice: If a UCC is enacted, all personal laws will cease to exist. It will do away with gender biases in existing laws.
  • Secularism: A secular nation needs a common law for all citizens rather than differentiated rules based on religious practices.
  • Various communities in India: Example: All Hindus are not governed by a homogenous personal law even after the enactment of the Hindu Code Bill.
  • Shariat Act: There is no uniform applicability when it comes to the Muslim personal law or the Shariat Act 1937.
  • Hindu Marriage Act of 1955: It prohibits marriages amongst close relatives but they are considered auspicious in the south of India.
  • Hindu Succession Act of 1956: Wives are not coparceners(a person who shares equally with others in the inheritance of an undivided estate) nor do they have an equal share in inheritance.

 

Arguments against UCC:

  • Plurality in already codified civil and criminal laws: So concept of ‘one nation, one law’ cannot be applied to diverse personal laws of various communities.
  • Constitutional law experts: Framers did not intend total uniformity.
    • Example: Personal laws were placed in Concurrent List(power to legislate being given to Parliament and State Assemblies).
  • Customary laws: Many tribal groups in the country, regardless of their religion, follow their own customary laws.
  • Communal Politics: The demand for a uniform civil code is considered to be framed in the context of communal politics.
  • Article 25: It seeks to preserve the freedom to practice and propagate any religion.

 

Supreme Court judgements about implementation of UCC:

 

Law Commission about UCC:

  • Unified nation did not necessarily need “uniformity: Secularism could not contradict the plurality prevalent in the country.
  • UCC: It is neither necessary nor desirable at this stage.

 

Recommendation by Law Commission:

  • Discriminatory practices, prejudices and stereotypes within a particular religion and its personal laws should be studied and amended.
  • Fixing the marriageable age for boys and girls at 18 years: So that they are married as equals
  • Simplifying the divorce procedure: Making adultery a ground for divorce for men and women.

 

Way Forward

  • Governments in the past could not muster the courage to implement the UCC because they feared it would incur the wrath of a section of voters.
  • Opposition parties must realize that they could play a constructive role in the smooth implementation of UCC.
  • Politicians opposing the implementation of UCC should acknowledge a fundamental principle — that India’s governance is rooted in the Constitution, and not in any religious book.
  • The UCC seeks to harmonize personal laws and ensure equal treatment and protection of fundamental rights for all citizens, irrespective of their religious affiliations.
  • The UCC is not an attempt to undermine or marginalize any specific religious community, but a means to create a just and unified legal framework that upholds the principles enshrined in the Constitution.

 

QUESTION FOR PRACTICE

Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)