India needs Uniform Civil Code - Why?
What is Uniform Civil Code
A Uniform Civil Code is one that would provide for one law for the entire country and is applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
Why does India need a Uniform Civil Code?
A uniform civil code is of an absolute necessity for individuals belonging to different religions and denominations.
It is imperative for the promotion of national unity and solidarity. Thus, divergent religious ideologies must merge and culminate in to common and unified principles and objectives, adhering to the true spirit of secularism.
However, after more than 60 years of independence the aspiration of a Uniform Civil Code remains unrealized.
Idea and Principle
The idea and principle of having a uniform civil code, governing personal laws is to treat every person equally and also so that just, fair and predictable laws protect everyone.
A uniform civil code would put in place a set of laws that would govern personal matters of all citizens irrespective of religion, which is the cornerstone of secularism.
It would enable to put an end to gender discrimination on religious grounds, strengthen the secular fabric and also promote unity.
As From Shah Bano to Shayara Bano who recently filed a PIL in the Supreme Court the emphasis has always been on gender friendly reforms of personal laws.
What does Constitution say:
Article 44 of the Constitution lays down that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India.
Article 44 is one of the directive principles. These, as defined in Article 37, are not justifiable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
Are Fundamental rights enforceable in a court of law??
While Article 44 uses the words “state shall endeavor”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
Article 43 mentions “state shall endeavor by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44. All this implies that the duty of the state is greater in other directive principles than in Article 44.
What are more important — fundamental rights or directive principles?
There is no doubt that fundamental rights are more important.
The Supreme Court held in Minerva Mills (1980): “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles".
To give absolute primacy to one over the other is to disturb the harmony of the Constitution”.
Article 31C inserted by the 42nd Amendment in 1976, however, lays down that -"if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14 and 19".
Does India not already have a uniform code in civil matters?
Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List. But “personal laws” are mentioned in the Concurrent List.
How does the idea of a Uniform Civil Code relate to the fundamental right to religion?
Article 25 lays down an individual’s fundamental right to religion; Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”; Article 29 defines the right to conserve distinctive culture.
An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
In the Constituent Assembly, there was division on the issue of putting Uniform Civil Code in the fundamental rights chapter.
The matter was settled by a vote. By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Vallabhbhai Patel held that the provision was outside the scope of fundamental rights and therefore the Uniform Civil Code was made less important than freedom of religion.
