Uniform Civil Code in India: The Past and the Future

On the 13th of this month, a Bench of Justices of the Supreme Court, questioned the government about its mandate on framing a Uniform Civil Code so that all religions are regulated by the same yardstick in measures of law. The Bench was hearing a petition, challenging a provision that compels Christian couples to wait for at least two years for divorce, whereas this period for other religions is one year. The BJP which has always supported the need for a uniform civil code in the country is under attack from various sections of the society for delaying the much needed reforms.
The Uniform Civil Code are a set of laws which will replace the personal laws, based on scriptures and customs of each religion (Hindu Code and Muslim Personal Law). This new set of laws will govern each and every citizen of the country irrespective of his religion. As of now, Goa is the only state with a uniform civil code called the 'Goa Family Law' (continuing after its annexation in 1961).

History:
(Pre-Independence)

• The British allowed personal laws to be governed by religious scriptures and customs of various communities. These personal laws involved inheritance, succession, marriage and religious ceremonies. The British took care of laws pertaining to crime, taxation, revenue, contracts, etc.
• The Lex Loci Report of October 1840 emphasised importance and necessity of uniformity in 'codification' of Indian law, relating to crimes, evidences and contract but recommended that personal laws of Hindus and Muslims should be kept outside of codification.
• These religious and customary laws were often discriminatory against women. Several reforms were made to these laws in the 19th century, like the Abolition of Sati and Widow Remarriage Act, with active participation of reformers like Raja Rammohan Roy and Ishwarchandra Vidyasagar.
• Women's organisations demanded a uniform civil code to replace existing personal laws, basing it on the Karachi congress resolution (1931) which guaranteed gender-equality.

(Post-Independence)

• In 1946, there were extensive debates in the Constituent assembly over the place of personal laws in the new Indian legal system. Some were of the opinion that India's personal laws were too divisive and a uniform civil code should be instituted in their place. Others resisted the proposal on the grounds that its imposition would destroy the cultural identity of the minorities.
• After independence, the then prime minister Jawaharlal Nehru, his supporters and other women members wanted a uniform civil code to be implemented. At the same time, then Law Minister pushed for reforms in the Hindu laws. Nehru saw this as the first step towards Hindu unity and the uniform civil code.
• The bill was met by severe opposition from many quarters including the then president, Rajendra Prasad and Congress party president, Vallabhbhai Patel and members of the Hindu fundamentalist parties. The conservative Hindu politicians, organisations and devotees were unhappy about being singled out as the only community whose laws had to be reformed.
• The main provisions opposed were those concerning monogamy, divorce, coparcenaries and inheritance to daughters. A scaled down version of four Hindu bills were successfully passed in the Parliament in 1955-56. They were Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, Hindu Adoptions and Maintenance Act.
• Since Act applied only to Hindus, women from the other communities remained subordinated. 

(Shah Bano Case, 1985)

• Shah Bano was a 73 year old woman who sought maintenance from her husband, Muhammad Ahmad Khan. Khan divorced her after 40 years of marriage by oral Talaaq and denied her maintenance. Unilateral divorce was permitted under Muslim Personal Law.
• Supreme Court ruled in favour of Shah bano under "maintenance of wives, children and parents" provision (section 125) of All India Criminal Code, which applied to all citizens irrespective of their religion. It also recommended that a uniform civil code be set up.
• This became a nation-wide political issue. The All India Muslim Board defended application of their laws. Criminal Code was seen as a threat to Muslim Personal Law, which they considered their cultural identity. For them, the judiciary recommending the uniform civil code was evidence that Hindu values would be imposed on every Indian.

Countries like Turkey and Tunisia have modernised their Islamic personal laws as have also Pakistan and Bangladesh. The Uniform Civil Code is not a magic wand and will not take care of all the problems faced by women overnight. It must emerge from an evolutionary process where participation of the civil society itself is important for the drafting of the code.

Justice R.M. Sahai in Sarla Mudgal, suggested that the Law Commission of India and the commission of minorities could work together to propose reforms, while co-opting bodies like All India Muslim Personal Law Board. There have also been recommendations to adopt a parallel civil and religious system, where in, certain matters like maintenance, inheritance, etc. civil law would prevail and be mandatory. These parallel systems exist in London, New York and Toronto. Such a parallel system would encourage an idea of uniformity that would respect autonomous laws for religious communities and address provisions inconsistent with the constitution.

In a country as diverse as India, it becomes cumbersome for the judiciary to judge cases when different laws apply to different communities. The Uniform Civil Code will be an important step towards national integration and national unity. Article 44 of the Constitution says that 'the state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India'. Although this article is not justiciable, the state has an obligation towards civil society to set up the uniform civil code. It is important in the sense, that it will promote gender equality and do away with archaic personal laws of Muslims which allow unilateral divorce and polygamy.

(sources: Indian Express and Wikipedia)