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Freedom to Practice Religion and the Uniform Civil Code

by Arihant Dev

UCC or Uniform Civil Code

Background

Secularism is a fundamental component of the Indian Constitution, and people in India adoption, inheritance, marriage, divorce, and other family-related matters. India is a diverse nation with a huge population and a variety of religions, castes, ethnicities, languages, and ideologies. Since the country’s independence, one of the most contentious issues has been the Uniform Civil Code (hereinafter UCC).The issue was prominently  brought up in 1985 after the Supreme Court upheld the High Court’s order  to provide Shah Bano with maintenance under s. 125 of the Code of Criminal Procedure  in the case of Mohd. Ahmed Khan v. Shah Bano Begum. This brought into question the conflicts between personal and secular laws in India and concerns about how orthodox personal laws may be violating women’s rights. It also brought into question whether the government or the Supreme Court could interfere with citizens’ personal laws. It is to be noted that in 2018, the Law Commission of India stated that the UCC was  neither desirable nor feasible, which has createdlots of practical difficulties  because the UCC is the primary agenda for Bharatiya Janta Party in the 2024 Lok Sabha elections

The second instance in which the Hon’ble Supreme Court raised concern regarding UCC was in the case of Sarla Mudgal, where the Hon’ble Supreme Court dealt with a matter in which people were using religious conversions as a way to solemnize a new marriage with another partner without divorcing the previous one.

The third and most recent instance was the Triple Talaq issue, in which Hon’ble SC held triple talaq to be unconstitutional, and recently a bill was passed by the parliament declaring Triple Talaq to be an  offence in the Muslim Women’s protection bill, 2017.

All of these cases demonstrate the need for UCC in India, but they have been met with strong opposition as violating the  fundamental rights of the citizen, which is an obstacle to the nationwide application of the UCC.

What is the Uniform Civil Code

Uniform Civil Code is mentioned under Article 44 of the Indian Constitution, which is a DPSP (Directive Principle of State Policy), which states that the state shall endeavour to secure a Uniform Civil Code for its citizens. Despite the complexity of the matter, the Constitution’s framers decided to leave it up to the subsequent governments to decide the legislation and implement it. The primary principles behind UCC would be regardless of a person’s  religious affiliation, they  would be  subject to the same rules under the Uniform Civil Code. In a multi-religious nation like India, adherents of various religions follow their own religious principles on marriage, divorce, maintenance, adoption,  and inheritance. UCC would ensure  that, while adhering to their own personal  laws, all religions should obey the same rules in these situations.

To combat prejudice against vulnerable groups and harmonize various cultural groups across the nation, Article 44 of the Directive Principles of the Indian Constitution was created. While drafting the Constitution, Dr B. R. Ambedkar stated that while the UCC is desirable, it should remain voluntary for the time being. As a result, Article 35 of the ft Constitution was added which later became Article 44 of the Directive Principles of the State Policy in Part IV of the Constitution of India. It was included in the Constitution as a provision that would be fulfilled whenever the country was ready to embrace it and the UCC could gain social support.

The origin of UCC

The British government’s report from 1835, which emphasized the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommended that the personal laws of Hindus and Muslims be kept outside of such codification, is where the concept of a UCC first emerged.

The government created the B N Rau Committee to codify Hindu law in 1941 as a result of an increase in laws addressing personal matters at the end of British rule. The Hindu Law Committee’s task was to investigate whether common Hindu laws were necessary. The committee proposed a codified Hindu law that would grant women equal rights by the scriptures a review of the 1937 Act and a civil code of marriage and succession for Hindus was recommended by the committee.

How will UCC help combat prejudice and promote equality?

The Uniform Civil Code by ensuring a common law for the country will ensure equality and end the prejudice women face due to personal laws. To better understand, let’s look at a few landmark judgments of the Hon’ble Supreme Court.

Mohd. Ahmed Khan v. Shah Bano Begum

In 1932, Shah Bano married Advocate Mohd. Ahmed Khan, after 43 years of marriage, Shah Bano was forced to leave her matrimonial home in the year 1975. And in the year 1978, she approached a court in Indore to seek maintenance under sec. 125 of CrPC, 1973 in the presence of a Judicial Magistrate.

Ahmed Khan argued that as per the Muslim Personal Law Board, the husband was liable to pay maintenance only up to the Iddat period (three months after the divorce after which women can remarry). He argued that the court could not interfere with  the personal laws of Muslims and supported his argument with the Muslim Personal Law Board’s contentionthat interference in Muslim personal law violated the provisions of the Muslim Personal Law (Shariat) Application Act, 1937. After detailed arguments, it was upto the discretion of the Hon’ble Supreme Court to decide whether the CrPC, 1973 would apply to all the citizens of the country regardless of their religion. Upon which the then Hon’ble Chief Justice Y.V. Chandrachud upheld the judgment of the Hon’ble High Court to provide maintenance to Shah Bano and even increased the sum of the maintenance.

Sarla Mudgal v. Union of India

In this instance, the issue was whether a Hindu husband who had been wed according to Hindu law may enter into a second marriage after converting to Islam. The Hindu Marriage Act of 1955 stipulates the only grounds for dissolving a Hindu marriage that has been solemnized according to Hindu law. The Hindu marriage would not be dissolved by itself under the Act if the individual converted to Islam and remarried. A second marriage that is solemnized after a person converts to Islam would,  therefore, be illegal according to Section 494(5) of the Indian Penal Code. In this case, the court held that the second marriage of a Hindu husband after converting to Islam would be invalid if his first marriage is not dissolved.

In this case, as well, Article 44 of the Indian Constitution was referred to.

Shayara Bano v. Union of India (Triple Talaq Case)

Shayara Bano was married to Rizwan Ahmad for around 15 years, In the year 2016 Rizwan divorced Shayara Bano through Triple Talaq, after which Shayara Bano filed a petition in the Hon’ble Supreme Court of India against Triple Talaq, Nikah halala, and Polygamy, contending that it infringes the Fundamental Rights of the women (Article 14, 15, 21 and 25). A onstitutional Bench of the Hon’ble Supreme Court ruled in favour of Shayara Bano and others and declared Triple Talaq to be unconstitutional. It also directed the legislature to take appropriate measures to curb future incidents of Triple Talaq after which the parliament passed the Muslim Women (Protection on Rights of Marriage) Act, 2019, making Triple talaq punishableup to 3 years with a fine.

The primary argument in favour of the Uniform Civil Code is not only saving women’s rights from getting infringed upon but also empowering them by eliminating the evils of society such as polygamy, Nikah halala, etc.

UCC and its challenges

The application of UCC would ensure applicability of secular and equal laws. It is ironic that Article 14 of the Indian Constitution, the supreme law of the land, provides for the right to equality. The implementation was UCC remains a challenge because the Fundamental rights clashes with the Directive Principle of State Policy (DPSP). Article 25 talks about the Right to Freedom of religion or the right to practice, profess and propagate religion, and UCC clashes with the fundamental rights of the citizens. Personal laws are now synonymous with “forum shopping” and are applied dependent on the convenience of the individual, which impedes access to justice in its purest form. In the case of Minerva Mills v. Union of India, the Hon’ble Supreme Court of India held that the Fundamental rights should go in line with the DPSP, but with the case of UCC, this doctrine cannot be followed. Fundamental rights are the basic sets of rights ensured to every citizen of the country, whereas DPSPs are directions for the state to function in a particular manner when we look at the matter of the right to education, it was initially a part of DPSP which was a direction for the government to do it as a priority but keeping other factors in mind, but after the right to education became a fundamental right it was the duty of the government as well as the right of the citizen to have education and that he could approach the court if his right has been infringed this gives a prime most priority to the right to education which somehow proves that the Fundamental rights are more important and that they cannot be infringed, similarly Freedom to practice and profess religion is also a fundamental right ensured to the citizens by the constitution itself. As a part of practising a religion, one has the right to follow their personal laws for the matters of marriage, inheritance, and adoption. India is a secular country and what it means to be secular, means that everyone is free to practice and profess their own religion without any problems, India was a secular country from the start but the word secularism was added to the preamble through the 42nd amendment 1976 which was a major step to ensure the citizens of the country their rights once again. In the year 1976, the decision of the supreme court in the case of Keshavananda Bharati established the doctrine of basic structure, as per which the government cannot amend the basic structure of the constitution which are the rule of law, secularism etc, and implementation of UCC will somehow clash with the doctrine of the basic structure.If we look into the debate keeping aside the legal challenges, the Muslim community contends that the government is trying to force majoritarian rule and ideology upon them.

All India Muslim Personal Law Board has been advocating for the recognition of personal laws and argues that secularism in a country like India should be followed and that UCC will hamper its important principle of Unity in Diversity.

UCC is not only a threat to Muslims but also affects many tribal communities in our country. As per the latest data from the Ministry of Tribal Affairs, the tribal population in India constitutes 8.6% of the total population, making up around 10.4 crores. There are over 730 Scheduled Tribes as notified under Article 342 of the Constitution of India. The Indian Constitution protects the customary rules of various communities including the tribal people in the Northeast. The Northeast of the country is home to about 220 distinct ethnic groups, making it one of the world’s most culturally varied regions. Large Northeastern tribal communities fear that the Uniform Civil Code—especially one that takes a majority-centric approach—would violate their long-standing, constitutionally protected customs and practices. Inheritance, marriage, and religious freedom laws in the northern states—Mizoram, Nagaland, and Meghalaya, in particular—are expected to be impacted by UCC.Especially since, the 2011 census, the proportion of tribal people in Mizoram, Nagaland, and Meghalaya is as high as 94.4%, 86.5%, and 86.1%, respectively. For a very long time, different tribal groups in India have been practising their own customary laws which are in some way different from those of others, due to their unique and distinct culture many tribal groups were excluded from the Hindu personal Laws, the implementation of UCC will try to bring the tribal community under one umbrella, endangering their distinct culture that needs to be preserved. Hindu Undivided Family gets separate treatment in the tax because the Hindu Undivided family is often treated as a combined entity so they get some tax exemptions, Implementation of UCC will also abolish Hindu Undivided Family and its exemptions, which will outrage Hindus as well.

The most important of all is that there could be nationwide protests, riots etc., which would totally hamper the law and order of the country. We have come across many protests over time which were converted into violent clashes all across the country, Recent protests on CAA, NRC, and Farm Laws are evidence for the same.

Conclusion

UCC is a controversial topic throughout the nation and it’s hard to determine whose stand is right. Before implementing the UCC the government formed an independent committee to gather different views from all over the country ranging to different communities and groups of people and to see if the UCC is implementable at the point of time. The government. The majoritarian rules cannot be imposed on minorities and tribals, so the law should be framed in a manner that does not hamper the long-standing rituals of the tribals and that does not infringe upon their rights and consecutively end the suffering of the women

The last and most important step the government could take is to educate the citizens of the country about the UCC and its advantages to women. So, that they can decide as per their own prudence.

India is more prone to communal violence than to any natural calamity, even a minute misunderstanding between communities can lead to a huge riot, so while implementing the UCC the government should check up on every possibility of disturbance in law and order and should take all necessary security arrangements before the implementation so that these violent mob clashes can be prevented.

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

Uniform civil code is neither desirable nor necessary at this stage, says Law Commission. (2018). The Hindu. 31 Aug. Available at: https://www.thehindu.com/news/national/uniform-civil-code-neither-desirable-nor-necessary-at-this-stage-says-law-commission/article61498390.ece.( [Accessed  31st July. 2023]

Sarla Mudgal v. Union of India, (1995) 3 SCC 635.

Shayara Bano v. Union of India, (2017) 9 SCC 1.

What’s uniform civil code (UCC): What does the constitution say & why it’s such a controversial topic in India?, The Economic Times (2013), https://economictimes.indiatimes.com/news/how-to/what-is-uniform-civil-code-what-does-constitution-say-about-it-why-its-such-a-controversial-topics-in-india/articleshow/101348565.cms (last visited Aug 01, 2023).

What’s uniform civil code (UCC): What does the constitution say & why it’s such a controversial topic in India? The Economic Times (2013), https://economictimes.indiatimes.com/news/how-to/what-is-uniform-civil-code-what-does-constitution-say-about-it-why-its-such-a-controversial-topics-in-india/articleshow/101348565.cms (last visited Aug 14, 2023).

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556.

Sarla Mudgal v. Union of India, (1995) 3 SCC 635.

Shayara Bano v. Union of India, (2017) 9 SCC 1.

Article 14 of the Indian Constitution.

Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591.

Guriya Kumar, Development of right to education as a fundamental right in India – Legal Vidhiya Legal Vidhiya – Legal Vidhiya (2022), https://legalvidhiya.com/development-of-right-to-education-as-a-fundamental-right-in-india/#:~:text=Originally%20Right%20to%20Education%20was,Constitution%20to%20provide%20quality%20education. (last visited Aug 15, 2023).

Kesavananda Bharati v State of Kerela (1973) 4 SCC 225.

Article 342 of the Indian Constitution.

Afrida Hussain, ‘How will UCC affect Northeast?’ (India Today, Jul 1, 2023)< https://www.indiatoday.in/india/story/how-will-ucc-affect-the-northeast-220-ethnic-tribes-dread-potential-impact-2400655-2023-07-01&gt; accessed 3rd August 2023.

The “Hinduization” of tribes: Examining the application of the Hindu Code Bill to Scheduled Tribes, Law School Policy Review & Kautilya Society (2022), https://lawschoolpolicyreview.com/2022/11/13/the-hinduization-of-tribes-examining-the-application-of-the-hindu-code-bill-to-scheduled-tribes/#:~:text=According%20to%20the%20Court%2C%20a,tribal%20communities%20(%C2%B615). (last visited Aug 6, 2023).

Deepak Joshi, Uniform civil code: Why it can impact Hindu undivided family’s tax benefits The Indian Express (2023), https://indianexpress.com/article/explained/explained-law/expert-explains-hindu-undivided-family-ucc-8823492/ (last visited Aug 9, 2023).


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