Starting 2nd April – APSIP Essay Course with K Siddhartha
Target 140+ | Click to see how & register for the module
Currently, believers of various religions can marry, adopt, inherit property and divorce under their own customs.
Under a Uniform Civil Code, it is believed, personal laws and sanctioned practices of different religions will be largely harmonised with accepted fair practices for all citizens, under guidelines laid down by Constitution.
Article 44 of the Constitution, which is one of the Directive Principles of State Policy, says: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Directive Principles are not justiciable or mandatory, only a guideline.
Articles 29 and 30 guarantee minorities the right to conserve their culture and script, and run their own educational institutions.
It was understood that minorities could practise their religion and follow their customs and traditions.
The Supreme Court asked the central government, whether it was willing to bring a Uniform Civil Code to ride over inconsistent personal laws in different religions.
There was “total confusion” over the incoherent stipulations about marriage, divorce, adoption, maintenance and inheritance.
Currently, different laws regulate these aspects for adherents of different religions.
Far from it. Parsis, Jains, Sikhs, Christians, apart from of course Hindus and Muslims, have their own civil codes.
While the Muslim Personal Law is yet to be codified (because of deep divisions within), Christian and Parsi codes were specified before Independence.
The personal laws of Hindus, Jains, Sikhs and others were codified in the 1950s.
Article 25, which guarantees the freedom to practise, profess and propagate any religion. By the 42nd Amendment of 1976, India was declared a secular nation.
The understanding of Article 25, the State and its institutions have not interfered with religious practices, including in relation to various personal laws.
There is a view that this principle runs contradictory to the idea of secularism which requires the State to be inert to religious considerations, and not tacitly support them by following a practice of non-interference, no matter what.
Clause (2) of Article 25 empowers the State to frame any law to regulate or restrict “secular activity which may be associated with religious practice”, therefore, it is argued, Article 25 is no bar to having a Uniform Civil Code.
The inconsistency in personal laws has been challenged on the touchstone of Article 14, which ensures the right to equality.
Litigants have contended that their right to equality is endangered by personal laws that put them at a disadvantage.
The first prominent case founded on Article 14 was Shah Bano case (1985) in which the apex court ruled that a Muslim woman was entitled to alimony under the general provisions of the CrPC, like anybody else.
Following protests from Muslim leaders, Rajiv Gandhi’s government in 1986 got the Muslim Women (Protection of Rights on Divorce) Act passed in Parliament, which nullified the ruling.
In effect, the verdict did a balancing act between the Shah Bano judgment and the 1986 law.
In Githa Hariharan vs RBI (1999), the top court adjudicated upon the constitutional validity of certain provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardian Constitution and Wards Act, on a petition claiming they violated Articles 14 by treating the father as the natural guardian of a child under all circumstances.
It ushered in the principle of equality in matters of guardianship for Hindus, making the child’s welfare the prime consideration.
The BJP, kept the Uniform Civil Code in its 2014 election manifesto. The BJP and RSS have long demanded it, and cited the example of Goa, which has a common law called the Goa Civil Code.
What the government tells the court next month will be a test of its political will , and mark the next chapter in the evolution of this debate.
Yes, you say? Well, there seems only one way to see through this crazy fog.
Every aspect of the personal laws must be examined in the light of constitutional guarantees to every Indian, equality, justice, right to life.
Laws that fail to uphold these basics must be thrown away, Isn’t it ?
Published with inputs from Arun
This is a development in direction of a Uniform Civil Code and women issues
At present the issue is in the SC, and it remains to be seen what its final decision will be. Triple talaq has been a very controversial issue. The fundamental factors here are which constitutional value is supreme – rights of individuals or religious freedom.
Note: Debates like these drag for years and years. While they may provide you with some fodder points, do not spend more time on such op-eds. Just get a feel of new angles and questions which are being raised.
Discuss: Discuss the possible factors that inhibit India From enacting for its citizens a uniform civil code as Provided for in the directive Principles of State Policy? [Mains 2015, GS II]