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THE UNIFORM CIVIL CODE IN INDIA- ANALYSIS OF THE PROS AND CONS

By Amrisha Tripathi September 21, 2018


Author: Swechha Malik, Lawfarm Intern

In India, different communities are governed by different Personal laws like Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and Maintenance Act for Hindus. Whereas Muslims, Parsis and Christians are governed by their own personal laws. Article 44 of the Constitution provides that, “The State shall endeavor to secure for the citizens uniform civil code throughout the territory of India.[1]

The need for Uniform Civil Code has been pointed by Supreme Court in its various judgments which have led to the debate whether we should incorporate UCC. In Mohd. Ahmed Khan v Shah Bano Begum[2], the Supreme Court observed that, “A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies."[3] The Supreme Court in Shah Bano case has directed the legislature to go for Uniform Civil Code as mandated by Article 44 of Constitution.

Arguments in favor of Uniform Civil Code:

              UCC will promote justice, equality and national integration. The enactment of UCC will promote Gender equality and welfare of women. It can be argued that Personal Law system violates the principle of equality of the Constitution because by having different personal laws for different religions, we are going against the secularism and equality[4]. But UCC can promote equality and justice by incorporating similar laws for all citizens.

           Another advantage of UCC is that it will simplify the cumbersome legal matters governed by personal laws and will promote gender justice by removing the inbuilt gender injustice of personal laws[5]. In the absence of UCC judges interpret various provisions like maintenance in case of Muslim women according to their prejudices and opinion. The introduction of UCC will prevent such interference and promote Uniform provisions for the welfare of all women.

          The para

mount objective of unity and integrity of India as resolved by the People of India in the preamble could be achieved only when Article 44 is transformed into enforceable Uniform Civil Code[6]. In India, secular laws like Special Marriage Act 1954, already exists. This law governs members of all the religions whether Hindu, Muslim, Parsi, Christian, etc. it is acceptable among all the citizens of India. This shows that there is no reason that why a uniform secular law cannot be extended and enacted for whole India.

       It has been rightly pointed that UCC will not violate Article 25 and 26 and it will help in attaining secularism and Article 44.[7]Further, it can be argued that marriage, succession etc. are secular matters and law can regulate them.[8] Article 25 of the Constitution of India gives power to state to interfere in matters of religion. So, the state can enact provisions for welfare of religious entities and we can argue that UCC is welfare legislation because it will remove the inherent injustice and loopholes of Personal Law System.

        The introduction of UCC will promote monogamy among all the citizen of India including Muslim and it will lead to betterment in the position of women. It will also remove prejudices against women regarding personal laws on divorce and maintenance.

 In India, laws governing Hindu women are progressive and less discriminatory as compared to laws governing Muslim women. There is no reason that why one portion of women should be excluded from the benefits of such rights. The introduction of UCC will ensure uniform rights for the women all over India.

Arguments against Uniform Civil Code:

It is argued that drafting a UCC will not prove good for India because India has a more diverse culture with people of so many religions living and professing their religion and so India should not blindly copy the west positivism centered legal trajectory.[9] Secondly, the continuing personal law system can handle the potential inequality through the intricate process of gradual harmonization of Indian personal laws.[10]

It is largely looked upon by Muslims as a threat to their identity because the code in itself seems to be favoring the majority population of Hindus. It looks like a Uniform Hindu Code rather than a uniform code that will be secular in nature. But this problem can be resolved by taking into the consideration the problems of the minority group like insecurity, complete loss of identity and marginalization within Indian society.                                            

 Conclusion    

UCC will promote justice, Gender equality and national integration and it will simplify the cumbersome legal matters governed by personal laws. The objective of unity and integrity of India enshrined in the preamble could be achieved only when Article 44 is transformed into enforceable Uniform Civil Code and it can promote monogamy among all the citizen of India including Muslim and it will lead to betterment in the position of women. Moreover the problem of opposition of UCC can be resolved by resolving doubts relating to the problems of the minority group like insecurity, complete loss of identity and marginalization within Indian society. The benefits of UCC certainly outweigh its limitations and it’s high time that India should incorporate Uniform Civil Code for all its citizens.

 

[1] Article 44 of Indian Constitution

[2] AIR 1985 SC 945

[3] Tina M. Thomas,  A Uniform Civil Code in India, International Affairs Journal Vol. 5 No.1, 11 (2009).

[4] Nithya N.R, Uniform Civil Code for India: Prospects and Constraints, Global Research Analysis Journal Vol. 2 Issue 9 ,157(Sept.2013)

[5] Neepa Jani, Uniform Civil Code, A Vociferous Judicial Claim and reluctant Political Will, Voice of Research Vol1 Issue 4 , 58 (March 2013)

 

[6] Shivam Garg, Uniform Civil Code: In Context of Secularism, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2343500&download=yes

[7] Werner Menski,The Uniform Civil Code Debate in Indian Law ,German Law Journal Vol9 Issue 3, 214 (2008)

[8] ibid

[9] ibid

[10] Amit Kumar Kashyap, Decoding Uniform Civil Code: Scope and practicability, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520935

 

Tags: uniform civil code , ucc , importance of ucc


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