Common Civil Code or Uniform Civil Code
A uniform civil code means codification of personal and civil laws for all citizens of the nation, removing the contradictions based on ideologies or religions.
The basis of uniform civil code is yet another step towards gender justice by providing human rights, equality and justice for women.
Though the fight on the face of it, is made to believe to effect religious code, but in fact in absence of a uniform civil code, the real suppression and sufferance is that of women.
Uniform Civil Code is yet another step of providing equality to women and women empowerment which people speak but are not willing to give.
There is no connection between religious codes and personal laws in a civilized society. Both can co-exist and blend simultaneously.
Religious code relate to personal dos and donts which help us to move towards self realisation or discover our destiny, while Civil Code relates to laws relating to:
Marriage
Divorce - maintenance
Guardianship
Adoption
Inheritance and Succession
Religious Endowments
These are all economic and property issues. They have nothing to do with the religion of a person at all.
In late 1980s, Shah Banu an old and penurious woman had knocked on the courts for justice after she felt she was wronged in the way her husband divorced her. The learned judges of the Supreme Court of India, upheld her right to maintenance and the need for enacting a Uniform Civil Code since after all it was part of the Directive Principles enshrined in the Constitution which the nation was duty-bound to implement.
This seemingly innocuous event upset the Muslim orthodoxy, in the persona of Z.A.Ansari and Syed Shahabuddin. They invoked religious sentiments and charged people passions by wielding street-level power. They gave the call of Islam in danger, the masses thronged the streets and the Parliament passed an Act removing the basis of the Supreme Court judgement. It was sheer petty politics against women. Payment of Rs.125 per month to a muslim divorcee as maintenance, is an economic issue for a women and finally not only she did not get it but hundred thousand of divorcee women remain deprived of that. Religion, politics and law was used to deprive women of justice , equity and fair play.
The second time, in 1995 in Sarala Mudgal case, Supreme Court and again in 2003 Supreme Court while striking down Sec. 118 of Indian Succession Act yet once again held that the need for a uniform civil code.
The courts have ample power to strike down any element of the current personal law which they feel is discriminatory. The Christian laws have indeed been changed drastically by judicial legislation. Thus the Christian divorce laws, property rights of women and laws relating to wills
have been made non-discriminatory. The adoption laws are also expected to be changed in this manner soon.
The courts do not pass the buck when the cases come before them. It is also not the duty of the courts to do guess work on what will usher in national integration and what will not. This is the function of the law makers and they must discharge their duties. If the Parliament do not discharge its duties, it cannot blame the courts for interfering or encroaching into the field of policy and law makers
Article 44 of the Constitution of India enjoins upon the State 'to endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.' This article forms a part of Chapter IV on 'Directive Principles of State Policy' and has no judicial force. That is, the provisions contained in this part shall not be enforceable by any court. But, the principles laid down therein are, nevertheless, fundamental in the governance in the country and the State continuously applies these principles in making policy and laws.
Personal laws are flawed, archaic and discriminatory, particularly against women. Outdated and out of touch with the reality of modern times
Marriage Christian Marriage Act, 1873
Christian Divorce Act, 1869
Guardianship and Wards Act,1890.
Indian Succession Act, 1925 - Section 118 of the Indian Succession Act of 1925, imposes restrictions on Christians in the country:
"If a Christian wants to donate his property for religious and charitable purposes, he must write his will 12 months before his death,".
Not having a common civil code expressly violates the letter and spirit of Article 44 of the Constitution of India. Article 44 is a Part of Directive Principles of State Policy and was incorporated by the founding fathers, because they felt that the principle underlying was the same as was for the freedom struggle. Those who were leaders of freedom struggle have not only forgotten the principles but are acting contrary to the same.
The traditional objections to a Uniform Civil Code hark back to the argument posed when the matter was debated in the Constituent Assembly. The two main objections then were that it would infringe on the fundamental right to freedom of religion guaranteed by Article 25, and that it would constitute tyranny of the majority.
The first objection is misconceived because the directive in Article 44 does not infringe the religious practices as stated under Article 25. The secular activities associated with religious practices are specifically saved from the guarantee of religious freedom.
The second objection would be valid, if the laws of one community were made incumbent on the rest. However, if a common set of laws for inheritance, marriage, divorce, custody, adoption and guardianship were to be framed with a special emphasis on gender equality which neither resembled any existing personal law nor sought to impose any one personal law on the rest, it would simply be a common and secular civil code.
The only reason for not enacting the Uniform Civil Code is that it will effect the create communal vote banks which is keeping the people separate.
Even Italy has one, as do the rest of the developed world. Nowhere is a scenario like in India, of various personal laws jostling together, allowed. But it needs to come on the heels of a political consensus, which is what the BJP, as a responsible party in power, needs to evolve
The cornerstone of a democratic society is equality. Without equality, there can be no justice, just as without justice there can be no equality. True justice cannot be based on unjust laws. Just laws are a pre-requisite for a democratic society and, therefore a just and orderly society. The concept of justice also changes with the dynamics of the times. Laws evolved and deemed sacred in more primitive times cannot continue to be considered so, if they do not satisfy the conditionalities of the doctrine of equality. This is violation of Article 14 of the Constitution of India
Christians have been demanding changes in these laws since 1958. In 1994, the Catholic Bishops Conference of India in consultation with 39 Christian groups submitted three draft bills -- the Christian Marriage Bill, 1994, the Indian Succession Amendment Bill, 1994 and the Christian Adoption and Maintenance Bill, 1994
John Rawls wrote In his celebrated work A Theory of Justice: 'Laws and Institutions on matter, however, efficient and well arranged must be reformed, or, abolished if they are unjust.'
The process of equalisation, so essential for modernisation and development cannot be endlessly delayed, we cannot wait forever for a reformist Indian Muslim leadership to emerge. Given that even predominantly Islamic countries like Egypt, Indonesia, Malaysia and even Pakistan constitutional authorities have enacted several measures to reform their societies, there is no reason why we cannot do so
Such a common and secular civil code, while not interfering with any of the rituals and many practices of the various religious and caste groups, would seek to merely legitimise the larger precepts of law that are being made secular. For instance, a Hindu from Kerala many marry his niece under the Marumakkathyam law, whereas it would be decreed as a voidable marriage for a Mitakshara Hindu. Under a common and secular civil code, the validity of a marriage would begin with the age of consent and end with a legitimate registration or certification by any authorised person or body such as a priest or locally elected officials or even traditional village elders.
By applying the doctrine of equality, all grounds of divorce, like adultery, desertion and cruelty, will be equally available to husband and wife. Thus, if a concealed pregnancy by another man before marriage is a ground so will the concealed pregnancy of another woman by the man. If bigamy is to be a ground for divorce so will polyandry. Naturally, divorce by mutual consent will be allowed to the husband and the wife jointly.
A common and secular civil code will also then address the issues that make marriages void or voidable in a uniform manner. A void marriage is one that in law does not exist. A voidable marriage is one that exists legally, and can only be annulled by a court of law. Thus the grounds for making a marriage void can be concealed impotence, or if the proposed marriage is bigamous or polyandrous, or where consent is fraudulently obtained. Grounds for making a marriage voidable could be when the marriage is not consummated or the bride is pregnant by someone else and of which the husband is unaware.
When the equality doctrine prevails, it will entail that in matters of maintenance and alimony, it will become the duty of the spouse with the greater or only income to maintain the other. A similar application of the doctrine on the questions of inheritance, maintenance of children, custody and guardianship and adoption will result in a dramatically different and more egalitarian social scenario.
A uniform civil code is the need of the hour and the best way to introduce it will be through a norm-setting National Civil Code:
1. Use of terminology National Civil Code will remove the objection of relative merits of various religious, civil systems, or imposition of one religious code on all the peoples.
2. The approach should be women/ gender centric and not religion centric. This will fetch support of women and open minded men
3. Citizens must be given an option to opt out of the National Civil Code
4. The National Civil Code must represent a well integrated scheme based on equality, justice and reason, perpetrating human rights and gender justice;
5. Special Courts must be created to deal with disputes relating to national civil code. The State judicial system should not intervene in civil disputes arising under the National Civil code.
6. Disputes between citizens appertaining to different religious codes will be subject to the National Civil Code.
7. Disputes between citizens for a single religious code be decided according to the National Civil Code, should any of the parties choose to take recourse to the official judicial system.
