"I personally do not understand why religion should be given this vast,
expansive jurisdiction, so as to cover the whole of life and to prevent the
legislature from encroaching upon that field. After all, what are we having this
liberty for? We are having this liberty in order to reform our social system,
which is so full of inequities, discriminations and other things, which conflict
with our fundamental rights."
-Dr. Bhim Rao Ambedkar.
Dr. B. R. Ambedkar wanted to introduce an Uniform Civil Code in India, during the constitutional debates by getting inspired by the western world where such Uniform Civil Code all ready in societies, with the object of bringing uniformity and unity in society.
But due to vast varieties of culture and religion of India the idea of Uniform Civil Code was strongly opposed by the other members of the Constituent Assembly; debating that implementation of Uniform Civil Court will infringement the right of freedom of religion and right to manage religious affair given under article 25 and 26 of the Constitution of India respectively.
Thus, the Uniform Civil Code was left to be implemented by government in the future and was added under Part - IV of the Constitution as one of theDirective Principles of State Policy.
According to Article 44:-"The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory if India."
Goa is the only state in India where there is a Uniform Civil Code is applicable ;i.e. irrespective of caste, community or religion there is one Common Family Code which deals with the matrimony, succession and adoption. In rest of India, many religious groups are still in doubt on authenticity of a Uniform Civil Code in India.
Not only during the Constituent Assembly's debate in pre-independence era but also in the post independence era also the topic of Uniform Civil Code has been in debate. In Shah Bano Case [Mohd. Ahmed Khan v. Shah Bano Begum]:theConstitution Bench of Hon'ble Supreme Court, while deciding the case of maintenance of Muslim woman Shah Bano under section 125 Cr.P.C, was of theopinionthat the Parliament should take steps to enact a Uniform Civil Code to bring uniformity in personal laws, from practice of the women status in society is getting degraded. But due to criticism and opposition received to this judgment by some groups, the then Central Government enacted a separate law for maintenance of Muslim women namely ‘Muslim Women (Protection of Rights on Divorce) Act, 1986.'
Second time; during the case of Smt. Sarla Mudgal, President, Kalyani & Ors. v. Union Of India & Ors. While deciding the case of bigamy through converting into Muslim just for getting marriage second time while still being married; after going through the various cases where status of women are getting degraded in society economically and morally due to practice of age old customs till date. Kuldip Singh J. has requested the parliament to take step towards enactment of Uniform Civil Code so that there can be uniformity in Succession and Maintenance laws throughout India.
However, this judgement also got high criticism from public, as minority groups see it as an attack on their Freedom of Religion and Freedom to manage religious affairs.
Supreme Court's View on Non-implementation of Uniform Civil Code:
In Lily Thomas Case while dealing with this case the Hon'ble Supreme Court pointed out that:
"43. ...in the supplementary affidavit filed on 5th December, 1996 on behalf of Govt. of India in the case of Sarla Mudgal, it has been stated that the Govt. would take steps to make a uniform code only if the communities which desire such a code approach the Govt. and take the initiative themselves in the matter."
Hence, the Court in Lily Thomas Case stated that "this Court had not issued any directions for the codification of the commonCivil Codeand the judges constituting the different Benches had only expressed their views in the facts and circumstances of those cases."
In the case of Pannalal Bansilal Pitti and Ors. v. State Of Andhra Pradesh and Anr. It was held that:
The first question is whether it is necessary that the legislature should make law uniformly applicable to all religious or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religions or their off- shoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, sex or sub-sections in the society speaking different Languages and dialects in different regions and provided secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualise diversity and attempted to foster uniformity among people of different faiths. A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.
What can be done constitutionally to implement the Uniform Civil Code?
Article 25 of the Constitution of India gives Freedom of conscience and free profession, practice and propagation of religion. And;
Article 26 of the Constitution of India gives Freedom to manage religious affairs.
Whenever the debate of Uniform Civil Code get initiated the rights given in above two articles forms a defence against the implementation of Uniform Civil Code; however, the rights given above, though being fundamental rights are not absolute in nature, as they are ‘Subject to /Public Order, Morality and Health' as according to Clause 1 of Article 25 and 26 of the Constitution.
According to Clause 2 of Article 25- "Nothing in this article shall effect 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;"
Hence, ill practices in customary laws can be prohibited by enacting a law by the central government.
From the discussion of above case laws, it is clear that there is distrust among the religious minority groups relating to implementation of Uniform Civil Code, as according to them it will infringe there right to practice religion as a Uniform Civil Court might became bias towards the laws of community having major population.
Other than that people are emotionally attached towards following their religious customs and they are afraid of loss of religious identity with loss of their customary laws and this insecurity not only lies with the minority religious groups but also with the religious group having majority of population;
As for example during the Constituent Assembly Debate on Uniform Civil Code; ‘Many Congress members also opposed a reform of Hindu practices concerning inheritance, marriage (and divorce) and adoption, as shown by the fate of the Hindu Code Bill.'
This distrust in the Uniform Civil Code by public was also recognised by the Hon'ble Supreme Court in Lily Thomas Case, and it was pointed out by the court that: ‘A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation.'
Although, the Uniform Civil Code can be enacted constitutionally, it would not be accepted and suited to a society having such a diverse religious culture.
On the other hand, the ill practices in the religious customary laws, which degrade the status of women in society or doesn't give the equality in society, can be prohibited by enacting special laws by the Parliament under clause 1 of Article 25 and 26 of the Constitution.
There can be a solution in implementation of Uniform Civil Code; if it is enacted as a ‘Grundnorm' in which instead of replacing all the customary laws, a set of guidelines should be made to abolish or replace only those laws or customary practices which degrades the status of women and doesn't provide equality status in society as compare to man. This type of Uniform Civil Code will be acceptable by all as it will not replace all the customary laws or the major part of it. As it will also preserve the diversity of Indian culture and religion, which rarely seen in western world where the Uniform Civil Code is already in practice.
1985 SCR (3) 844.
1995 AIR 1531 : 1995 SCC (3) 635
Lily Thomas v. Union Of India & Ors., (2000) 6 SCC 224.
1996 AIR 1023: 1996 SCC (2) 498
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