UNIFORM CIVIL CODE AND ROLE OF INDIAN JUDICIARY

CONCEPT AND MEANING OF UNIFORM CIVIL CODE
The expression ‘Uniform Civil Code (UCC)’ consists of three terms- ‘Uniform’, ‘Civil’, ‘Code’. The word ‘Uniform’ means one and the same in all circumstances whatsoever; the term ‘Civil’ has been derived from the latin word ‘Civils’ meaning citizen when used as an adjective to the term ‘law’, it means pertaining to the private rights and remedies of a citizen, as distinguished criminal, political, etc. The word ‘Code’ is derived from the Latin word ‘Codex’ which means a book. Therefore, the term ‘Civil Code’ is read in conjunction with the adjective ‘Uniform’ it connotes a code which shall be uniformly applicable to all citizens irrespective of their religion, race, sex, caste and creed.
Uniform Civil Code, therefore, generally refers to that part of law which deals with family affairs of an individual and denotes uniform law for all citizens, irrespective of his/her religion, caste or tribe.
UNIFORM CIVIL CODE AND INDIAN CONSTITUTION
Article 44 of the Constitution of India requires the state to secure for the citizens of India a Uniform Civil Code throughout the territory of India. India is a unique blend and merger of codified personal laws of Hindus, Christians, Parsis and to some extent of laws of Muslims. However, there exists no uniform family related law in a single statutory book for all Indians which are universally acceptable to all religious communities who co-exist in India.
The constitution, by virtue of Article 44, is very clear that unless a uniform civil code is followed, integration cannot be imbibed. However, the fact is that it is only a “directives principle” laid down in the constitution and as Article 37 of the Constitution itself makes clear, the directive principles “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”. This shows that although THE constitution itself believes that a Uniform Civil Code should be implemented in some manner, it does not make this implementation mandatory. Hence, the debate on having a uniform civil code for India still continues.

The demand for a uniform civil code essentially means having one set of laws that will apply to all citizens of India irrespective of their religion. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde

POSITION IN INDIA

CONSTITUTIONAL ASSEMBLY DEBATE ON UCC:
When India attained independence and the issue of Uniform Civil Code (UCC) arose, much was debated at the Indian Parliament in 1948. There were inconsistent views expressed in the Constituent Assembly when it came to the concept of ‘Civil Code’.
While the founding father of our constitution and Chairman of the Constitution Draft Committee, Dr. B.R. Ambedkar, supported by eminent nationalists like Gopal Swamy Iyenger, Anantasayam Iyengar, KM Munshiji, Alladi Krishnaswamy Iyer and others favoured the implementation of the Uniform Civil Code; it was strongly opposed by Muslim fundamentalists like Poker Saheb and members from other religions. On 23rd November 1948 a Muslim member, in Parliament, gave an open challenge that India would never be the same again if it tried to bring in Uniform Civil code and interfere with Muslim personal law. Earlier, the Congress had given an assurance that it would allow Muslims to practice Islamic personal Law and the architects of the Constitution, therefore, found a compromise by including the enactment of a Uniform Civil Code under the Directive Principles of State Policy in Article - 44. While explaining the reason for including Article 44 in the Directives Principles, it was observed,
"When you want to consolidate a community, you have to take into consideration the benefits which may accrue to the whole community and not to the customs of a part of it. If you look at the countries in Europe, which have a Civil Code, everyone who goes there forms a part of the world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to the minorities."
Distinguished members like Shri Minoo Masani, Smt. Hansa Mehta and Rajkumari Amrit Kaur put in a note of dissent saying that one of the factors that has kept India back from advancing to nationhood has been existence of personal laws, based on religion, which keep the Nation divided into watertight compartments in many aspects of life. They were strongly in favour of the view that Uniform Civil Code should be guaranteed to the Indian people within a period of five to ten years. But even after sixty-four years, because of perverse secularism and perverted communalism, Uniform Civil Code has not come into being.
Therefore, family affairs such as marriage, divorce, inheritance, guardianship and adoption are legally permitted to be governed by customs or rules applicable to the persons and their community. This has been the practised from the time of British rule (even before that), because it was considered prudent not to disturb the people’s religious and community customs as far as their private affairs are concerned. The same position continues even after the independence and people are permitted to follow their respective personal laws. Over the period, there have been attempts to codify personal laws applicable to each religious group.

INDIAN CASE LAWS: DIRECTIONS TO ENACT A CODE:
The Supreme Court of India for the first time directed the Indian Parliament to frame a Uniform Civil Code in 1985 in the case of Mohammad Ahmed Khan Vs. Shah Bano Begum. In this case a penurious Muslim woman claimed maintenance from her husband under Section 125 of the Code of Criminal Procedure after her husband pronounced triple Talaq (divorce by announcing the word “Talaq” thrice). The Apex Court held that the Muslim woman had a right to get maintenance under Section 125 of the Code of Criminal Procedure, 1973 and also held that Article 44 of the Constitution had remained a dead letter. However, to undo the above decision, the Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim Woman for maintenance under Section 125 of the Court was enacted by the Indian Parliament.
Thereafter, in the case of Sarla Mudgal Vs. Union of India, the question which was raised was whether a Hindu husband married under Hindu law can, by embracing Islamic religion, solemnize a second marriage. The Supreme Court held that a Hindu marriage solemnized under Hindu Law can only be dissolved under The Hindu Marriage Act and conversion to Islam and marrying again would not by itself dissolve the Hindu marriage. Further, it was held that a second marriage solemnized after converting to Islam would be an offence of bigamy under Section 494 of the Indian Penal Code. In this context, the views of Mr. Justice Kuldip Singh are pertinent:
“Where more then 80 percent of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of the ‘Uniform Civil Code’ for all the citizens in the territory of India.”
Thus, the Supreme Court reiterated the need for Parliament to frame a common civil Code which will help the cause of national integration by removing contradictions based on ideologies.
The Directive Principle of enacting a uniform civil Code has been urged by the Apex Court repeatedly in a number of decisions as a matter of urgency. Unfortunately, in a subsequent decision reported as Lily Thomas Vs Union of India, the Apex Court, dealing with the validity of a second marriage contracted by a Hindu husband after his conversion to Islam, clarified that the court had not issued any directions for the codification of a common civil code and that the judges constituting the different benches had only expressed their views in the facts and the circumstances of those cases. Even the lack of will to do so by the Indian government can be deciphered from the recent stand stated in the Indian press. It has been reported in the Asian Age, by the Press Trust of India (the Official Government News Agency) that the Indian government does not intend to bring legislation to ensure a uniform civil code because it does not want to initiate changes in the personal laws of minority communities. However, this ought not to deter the efforts of the Supreme Court of India in issuing mandatory directions to the central government to bring a common civil Code applicable to all communities irrespective of their religion and practices in a Secular India.
Hopefully, the Apex Court may review its findings in some other case and issue mandatory directions to the central government to bring a Common civil code applicable to all communities irrespective of their religion.

SECULARISM AND THE UNIFORM CIVIL CODE:
The Preamble of the Indian Constitution resolves to constitute a “Secular” Democratic Republic. This means that there is no State religion and that the state shall not discriminate on the ground of religion. Articles 25 and 26 of the Constitution of India as enforceable fundamental rights guarantee freedom of religion and freedom to manage religious affairs. At the same time Article 44 which is not enforceable in a Court of Law states that the state shall endeavour to secure a uniform civil code in India. How are they to be reconciled? What will be the ingredients of a uniform civil code? Since the personal laws of each religion contain separate ingredients, the uniform civil code will need to strike a balance between protection of fundamental rights and religious principles of different communities. Marriage, divorce, Succession, inheritance and maintenance can be matters of a secular nature and law can regulate them. India needs a codified law which will cover all religions in relation to the personal laws of different communities.
In a report, it has been reported that the Supreme Court of India dismissed a public interest litigation petition challenging the legality of the customs of polygamy, talaq and divorce practiced by Muslims under personal laws. The plea for a direction to the Central Government to make Uniform Marriage Laws for all communities was rejected on the ground that it is for Parliament to change or amend the law. Thus, the debate is endless and the issue remains unresolved.
To sum up, it can be concluded that for citizens belonging to different religions and denominations, it is imperative that for promotion of national unity and solidarity a unified code is an absolute necessity on which there can be no compromise. Different streams of religion have to merge to a common destination and some unified principles must emerge in the true spirit of Secularism. India needs a unified code of family laws under an umbrella of its entire constituent religions. Whether it is the endeavour of the State, the mandate of the court or the Will of the people is an issue which only time will decide.

JUDICIAL ACTIVISM IN FAMILY LAWS: A TURNING POINT
A series of decisions by the Supreme Court of India in the areas of family laws in the recent past has gone to show that the Apex Court is motivating a lot of positive and well meaning reforms which have become necessary over a period of time. Three recent decisions of the Apex Court can be cited in support of this proposition:
In, In Re: Enforcement and Implementation of Dowry Prohibition Act,1961, the Apex Court directed the Indian central and state governments to implement all the interim directions issued by the Supreme Court earlier and take effective steps for framing rules and enforcing the provisions of the Dowry Prohibition Act, 1961 22 by devising measures to create honest, efficient and committed machinery for the purposes of the implementation of this Act.
In Sushil Kumar Sharma Vs Union of India and others, the Apex Court, upholding the constitutional validity of Section 498A of the Indian Penal Code, held that the object of Section 498A is prevention of dowry menace and to check cruelty and harassment of women. Therefore, the court concluded the provision does not offend the Constitution of India.
In St. Theresa’s Tender loving Care Home Vs State of Andhra Pradesh, the court held that the workings of the homes run by state governments for abandoned and destitute children and the process of offering them for adoption need to be seriously improved and the central and state governments would do well to look at these problems with the humanitarian approach and concern they deserve.
However, the Supreme Court has also tested various aspects of personal laws on the touchstone of fundamental rights.
In Gita Hariharan Vs Reserve Bank of India, the Supreme Court interpreted Section 6 of The Hindu Minority and Guardianship Act, 1956 to mean that the mother is also a natural guardian and irrespective of whether the father was unfit or not, the mother should also be given equal rights as a natural guardian.
In John Vallamattom vs. Union of India, Section 118 of the Indian Succession Act was struck down as unconstitutional, as it was held to be discriminatory against Christians in imposing unreasonable restrictions on the donation of their property for religious or charitable purposes by Will.
In Daniel Latifi Vs Union of India a Constitutional Bench of the Supreme Court gave a categorical finding that in view of their interpretation of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the provisions of the Act were not in violation of Articles 14 and 21 of the Constitution, which fundamental rights guarantee equality of law and right to life and personal liberty.
A legislative setup which is slow to respond to societal changes and a proactive judiciary which is keen to motivate reforms in law is therefore clearly visible on the Indian horizon. Even in matters affecting environment, pollution and health of people, the role of the judiciary in India has been very constructive. The vibrant, dynamic and open jurisprudential system in India is amenable and flexible to changing needs of people. We could therefore well have reform in family law with the views of the court even if there is opposition from religious communities in respect of personal laws. If a uniform civil Code does not come as a result of legislation, decisions of courts will always suggest reforms to improve the plight of children and women who are affected the most. The Indian judiciary indeed deserves to be hailed in this regard for its yeoman efforts in this regard, or the welfare of Indians.

UNIFORM CIVIL CODE IN GOA
Not many know that a UCC exists in the small state of Goa accepted by all communities. The Goa Civil Code collectively called Family Laws, was framed and enforced by the Portuguese colonial rulers through various legislations in the 19th and 20th centuries. After the liberation of Goa in 1961, the Indian State scrapped all the colonial laws and extended the central laws to the territory but made the exception of retaining the Family Laws because all the communities in Goa wanted it. The most significant provision in this law is the pre nuptial Public Deed regarding the disposal of immovable and movable property in the event of divorce or death. During matrimony, both parents have a common right over the estate, but on dissolution, the property has to be divided equally; son and daughters have the equal right on the property. As the procedure involves compulsory registration of marriage, this effectively checks child and bigamous marriage.
The philosophy behind the Portuguese Civil Code was to strengthen the family as the backbone of society by inculcating a spirit of tolerance between husband and wife and providing for inbuilt safeguard against injustice by one spouse against the other.

CONCLUSION
UNIFORM CIVIL CODE: An Aspiration or an Illusion

A net analysis of the various propositions and viewpoints discussed above drives home the ideal solution that for Indians there is needed one indigenous Indian law applicable to all its communities which coexist democratically. Analytically speaking, the answers to the social issues discussed above are within the system. Codification of a unified civil code may be the ultimate solution. Other measures will only tide over time. Judicial verdicts will keep the momentum going. Accommodating personal laws of all religions under such a code is an uphill task. It may take time. The legislature will ultimately have to perform this onerous duty of drafting the Code. Religion will have to keep pace with law. Unity in India exists in its diversity. Times have moved ahead, but personal laws have not kept pace. The courts in India perform a Herculean task in carving out solutions on a case to case basis. The executive and the legislature arms of the government in India however now need to contribute to provide the much needed solutions. In the e-age today, the path to progress must be chartered with harmony at home. As the largest democracy in the world, India has an opportunity to be a role model in various aspects of family laws. Maybe, with further changes and amendments in some aspects, a better role model to emulate may emerge in the Indian sub continent.
Thus, the Supreme Court has through its various decisions reiterated the need for Parliament to frame a common civil Code which will help the cause of national integration by removing contradictions based on ideologies.
The section of the nation against the implementation of UCC contends that in ideal times, in an ideal State, a UCC would be an ideal safeguard of citizens’ rights. But India has moved much further from ideal than when the Constitution was written 53 years ago.
But to conclude, I would like to say that citizens belonging to different religions and denominations follow different property and matrimonial laws which is not only an affront to the nation’s unity, but also makes one wonder whether we are a sovereign secular republic or a loose confederation of feudal states, where people live at the whims and fancies of mullahs, bishops and pundits.

*

BIBLIOGRAPHY
BOOKS:
* Agnes Flavia, “marriage, divorce, and matrimonial litigation”, volume 2, oxford publication, 2011 * Mahmod Tahir, “laws of india on religion and religious affairs”, universal law publishing co. 2008 edition.

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[ 2 ]. The shorter Oxford English Dictionary, Vol. 1, 1973, 34
[ 3 ]. Encyclopedia Americana, Vol. 7, 1960, 194
[ 4 ]. Constitutional Assembly Debates Volume VII pg. 547
[ 5 ]. AIR 1985 SC 945
[ 6 ]. AIR 1995 SC 1531
[ 7 ]. 494. Marrying again during lifetime of husband or wife.—
Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception.- This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge
[ 8 ]. 2000 (6) SCC 224
[ 9 ]. August 5, 2006
[ 10 ]. ARTICLE 25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a). regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b). providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly
[ 11 ]. 26. Freedom to manage religious affairs
Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law
[ 12 ]. May 11, 2006 in The Hindu
[ 13 ]. Judgments Today 2005(5) SC 71
[ 14 ]. Judgements Today 2005(6) SC 266
[ 15 ]. Judgments Today 2005(9) SC11
[ 16 ]. 1999(2) SCC 228
[ 17 ]. AIR 2003 SC 2902
[ 18 ]. 2001(7) SCC 740,