Updated: Apr 4, 2021
Modi government has although secured a notable gain in his tenure, he still has a long way to go when it comes to religion and people of India. With every year of amendment and change in law, more critical and important issues keep on rising. Apart from Climate Change, Women Empowerment and Security, Trading, India has to focus on its internal legal affairs and smoother functioning of economy as well. Right now India is not properly at peace, especially, our capital city, because of the continuous events that took place after the passing of the Bill of CAA. One of the most “effective way” to disrupt India’s peace and smooth working is, by attacking a person’s religion.
Religion, often misused by politicians for their strategies and agendas.
History is witness, whenever one has tried to change or has amended certain provisions regarding religion of a certain set of class, there has been an outbreak and riots are on their mark to get set go..
One of such unsolved Constitutional controversies is the Uniform Civil Code. A matter that has been touched several times yet left untouched.
A.44- Uniform civil code for the citizens.The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
A directive principle that the State should strive to achieve. Even if UCC were to be implemented, is India ready for it? Time and again the Supreme Court has reminded the government for implementation of UCC but no actions have been taken properly yet.
When A.370 was amended, Shiv Sena Chief, Udhav Thackrey, said, “By scrapping A.370 the dream of Balasaheb Thackrey has been fulfilled.Now we want UCC.”
The Supreme Court judgement in 1985 Shah Bano vs Mohd.Ahmed Khan created a havoc in the whole of India and only after over ruling of the judgement by then Prime Minister, Rajiv Gandhi, people came to at rest. If the matter of CAA, Sabrimala, Ram Mandir had such a grave response, imagine the situation if UCC were to be implemented ; where people will be basically asked to follow a uniform procedure and unfollow a few rituals and customs that they’ve been following for hundreds of years.
Every religion is unique in it’s own way. Will the choice of Seculsrism ,mentioned in the Preamble of our Constitution, get sacrifised? Is India ready for it?
There have been a lot of changes in the past years which has led to taking a step forward towards the development of UCC.
Recently, the BJP government has asked the Law Commission to “examine” the issue of implementing the uniform civil code. “This is the first time a government has asked the commission, which has a crucial advisory role on legal reform, to look into the politically controversial issue of a uniform civil code.”(1)
Firstly, abolition of Triple Talaq, wherein this concept allowed a husband to divorce his wife by repeating the word "talaq" (divorce) three times in any form, including on video calls, email or text message or verbally. The Muslim Personal Law (Shariat) of 1937 had legalised and allowed the practice of Triple Talaq which gave a Muslim husband special privileges over his wife. On July 30, 2019, the Rajya Sabha passed the Bill, with 99 votes in its favour and 84 against it and made Triple Talaq a criminal offence and on breach of the same imprisonment of three years for any Muslim man who commits the act. The law also makes Triple Talaq a cognizable and non-bailable offence.
Secondly, decriminalisation of S.497 IPC (Adultery) in Joseph Shinev v. Union Of India(2), where it was seen that not only the government but the judiciary is also taking steps towards UCC and gender equality. In July 2018, a 5 Judge Bench of the Supreme Court struck it down being violative of Articles 14. 15 & 21 of the Constitution.
Thirdly, allowing Muslim,Jews, Parsi to adopt a child. They had only guardianship rights and not adoption rights. Supreme Court in its judgement, ruled that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion does not permit it.
Fourthly, Mary Roy Case(3), Under the Travancore Christian Succession Act, 1092, a daughter was not entitled to the property of her intestate father except to the extent of 25% of the son’s share or Rs. 5000 whichever is less; and that only in the absence of any Streedhan or even the promise of one. However, according to the Christian law an individual’s property is treated as self-acquired notwithstanding the mode of acquisition. And The Indian Succession Act states that property shall be equally divided among all surviving children if an individual dies intestate — without leaving a Will. There was a confusion as to which law would be applicable. The Court then held,The right to inherit the property of intestate parents is to be governed by the Indian Succession Act, 1925 and will be also applied to the Indian Christian Community in Travancore that is merged with Cochin.
Fifthly,Special Marriage Act, 1954, a very commendable initiative by the Parliament, providing a special form of marriage divorce and succession under this Act. It is resorted to by Hindus, non-Hindus and foreigners marrying in India who wish to marry under this Act. Registration is made mandatory under it, something which is not mandatory in few personal laws.
Lastly, Increase in the number of petitions for implementing UCC.
To secure gender justice and to promote fraternity and national unity more cases are being filed.The first petition was filed by the BJP leader and lawyer Ashwini Kumar Upadhyay to draft the UCC, but All India Muslim Personal Law Board (AIMPLB), claimed that it was not maintainable and should not to be entertained.
To conclude,India is a unique mixture of secularism and personal laws. The principle is to treat persons equally and protect them by law which is just, fair, and acceptable. UCC will not only change the perception of how families are governed , but will also fill the gaps in the personal laws.
It will, no doubt be a tough task to reform personal laws of different religions but once enacted will have a smoother functioning.
2. Joseph Shinev v. Union Of India, 2018 SC 1676.
3. Mary Roy vs State of Kerela, 1986 AIR 1011,SCR (1) 371.
Author - PRIYANSHI MALOO
Student of Mumbai University, KES Jayantilal H. Patel Law