Context:
The Ministry of Law and Justice sent a communication to the Law Commission requesting it to examine and report on all issues pertaining to a Uniform Civil Code.
What is UCC?
- Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen.
- Currently, there is a Hindu Marriage Act, a Muslim Personal Law (Shariat) Application Act, 1937, a Christian Marriage Act and a Parsee Marriage and Divorce Act. Hindu Marriage Act applies to any person who is a Hindu, Buddhist, Jain or Sikh by religion.
- There is also a Special Marriages Act, 1954 under which people can perform marriage irrespective of the religion followed by either person.
- These laws deal with the matters involving marriage, divorce, inheritance, adoption, and maintenance of the respective religions.
- Having a Uniform Civil Code will mean that all these laws will be replaced by a new law which will be applicable for all irrespective of their religions.
Why is it difficult to implement?
- The vast diversity of the personal laws, along with the devotion to which they are adhered to, makes uniformity of any sort very difficult to achieve.
- Even under the Hindu Marriage Act, 1955, marriages may be solemnized in accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu.
- In the Muslim law too, though there are no elaborate rites or ceremonies, there exist some differences between the Sunni and Shia marriages.
- Many people still do not know what the uniform civil code really means. There are still false conceptions surrounding it, especially among the minorities, which make a rational debate on its implementation quite difficult.
- UCC is also sometimes perceived as the imposition of the Hindu code and procedures, and this adds to its opposition from the minorities.
- Some people also argue that it would lead to a loss of the culture and the identity of the minorities in the Indian society.
Arguments in favor and against of status quo:
- One argument in favor of a status quo and against a UCC is that the courts have in innumerable cases given secular laws precedence over personal, religious codes.
- In the past 12 months alone, a two-judge bench ruled that Muslim women are entitled to maintenance beyond the iddat(roughly three months) period. It upheld a previous Allahabad high court judgement that “polygamy was not an integral part of religion”.
- It has questioned why Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others.
- Earlier still, it gave Muslim women the right to legally adopt children even though this goes against their personal law.
- There is another alternative—change from within. For example already social organizations within the realm of religion have begun demanding an end to practices such as triple talaq.
- The All India Muslim Personal Law Board has not, so far, responded favorably even though an online petition by the Bharatiya Mahila Muslim Andolan demanding a ban has already attracted over 50,000 signatures. In spite of that there is no drowning out of voices demanding justice.
Earlier law commission reports:
- The two reports of the 18th Law Commission recommended certain amendments to the Special Marriage Act of 1954 to rid it of its discriminatory provisions.
- The other called for a central law for compulsory registration of all marriages in compliance with the Supreme Court directions in this regard. Neither of these examined, or reported on, a Uniform Civil Code.
- According to some experts the two “hurdles” in the way of the present Commission in examining the feasibility of a Uniform Civil Code are: The Shariat Act of 1937 and a Bombay High Court judgment that gave the Muslims “freedom to opt for the 1937 Act”.
- But the Bombay High Court ruling — pronounced in a case on the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 — had nothing to do with the Sharia Act.
- Never in the history of the Law Commission has either the issue of Muslim law reform or a Uniform Civil Code been referred to it by any government.
- In the Sarla Mudgal case of 1995 dealing with the issue of bigamy by non-Muslims after a “conversion” to Islam, a Supreme Court judge had advised the government to request the Law Commission to prepare, in consultation with the National Commission for Minorities, a comprehensive report on these matters. However, the advice remained confined to the pages of law reports.
Conclusion:
- According to some experts the enactment of a UCC at once might disrupt communal harmony. The better course would be to bring about small reforms, correcting some inherent irrationality in some of the personal laws, and make them suitable for modern times.
- The focus should also be on removing disparities between different religions. This might lay the foundation of implementing a UCC at a later date.
- Goa has a Common Family Law, which is also called Goa Civil Code. It is a set of civil laws that governs all Goans, irrespective of religion.
- Although it has some exceptions for some communities and is quite different from a Uniform Civil Code, it shows that the enactment of a UCC is indeed feasible in India.
This Article is a part of ForumIAS Mains 2016 Initiative. For a list of all articles that will be published on ForumIAS Portal for Mains visit https://forumias.com/portal/mains2016
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