By Aviral Saxena & Shantanu Sahay,
B.A., LL.B. (Hons) IV year, National Law Institute University, Bhopal
The Imrana imbroglio has opened the Pandora’s box once again after the highly acclaimed remarks by former Chief justice V.N. Khare while declaring as Unconstitutional, Section 118 of the Indian Succession Act of 1925 on the grounds of arbitrariness, irrational and violative of Article 14 of the Constitution. The bench allowed a Writ Petition filed by a Christian priest John Vallamattom, challenging the provision as it discriminated against Christians bequeathing their property for Charitable and religious purposes[i]. Though that was just an observation made by the then Chief Justice, it put up before the society at large, a ground for a national debate to evaluate the pros and cons of having a Uniform Civil Code in our country. The so called pseudo secularists immediately set the alarm bells ringing, stating vehemently that the Code would result in the personal laws of the Hindus being imposed on other communities. The recent case of Imrana has put up another pertinent yet serious question before us, which is “ whether the time has come to have a Uniform Civil Code in the country?”
Legal Uniformity and Cultural Diversity
to the geo-political nature of the country, various cultures and religions
flourished in the country and as a result, we have various personal laws in
place. The ramifications of the defects within the various personal laws have
resulted in an increase in the cultural diversity within the Indian society. In
a complex situation such as India, the question that ultimately comes to our
minds is regarding the reconciliation of the inherent Pluralism of the Indian
social order with a demand for uniformity. It is pertinent to note that, the
aspect of Legal Uniformity is supposed to be in consonance with Cultural
Diversity. There are various cultural factions within various religious
communities. The existing personal laws not only promote cultural diversity but
also fail to provide social justice particularly equal rights for women[ii],
aspects relating to adoption and inheritance. Hindus, Sikhs and Jains are governed by Hindus Marriage Act 1956 and Hindu
succession Act, 1956. Even though the laws prohibit bigamy, the practice
continues on a large scale. The Hindu Succession Act gives Hindu women an equal
right to parental property even then they sign away their right to their
father’s property at the time of marriage while accepting dowry as a recompense
for a share. The Shariat Act states that Muslim
personal laws shall govern the Muslims and that “law has priority over custom”.
However in practice personal law is mostly based upon interpretations of Quran[iii]
and the Hadit. The Registration of Marriage is
compulsory within the Christian Laws. However, it is optional as per the Hindu
For proper regularization of the institution of marriage within the Indian
society, compulsory registration of marriage is a necessity. Similarly, there
are other aspects within the various communities, the reform of which is
important for the reform of the Indian society and for that a uniform system of
laws in the nature of Uniform Civil Code is desirable. There are various
Islamic countries in the world that strictly ban the system of bigamous
marriage and have done away with the system of
“Triple Talaq”. In India, widow remarriage has been
recognized and practice of Sati has been completely done away with. Time
has now come when we create a conducive atmosphere for social and cultural
integration by accepting a single system of governance.
Uniform Civil Code and Religious Minorities
The UCC is all about National Integration. It does not talk about abolition of any religious identity. The Supreme Court has time and again talked about having a uniform civil code as per Article 44 of the Constitution. Personal laws largely concern the Minorities. Matters like property, marriage etc. are however, still a function of religious identity for Hindus as much as there are for Muslims and Christians. Also, Hindu code bill did not lay the foundation of ‘secularization of Hindu laws’. The law has missed granting minorities within the Hindu fold itself, a decent and deliberative space. There are various ambiguities within the Hindu laws itself[v]. Therefore, there is a real need to evaluate and revaluate the Hindu code itself along with the Christian and Muslim personal laws so that they are in consonance with the constitution and other codified laws like IPC, Cr.P.C. etc. Whenever there is a talk of formulating a Uniform Civil Code in the country, some minority fundamentalist organizations come together protesting that it poses a threat to their religious identity. The politics of vote bank takes precedence over India’s integrity and unity. The Uniform Civil Code does not mean a Hindu Code. It means an attempt to inculcate the best from all the communities and religions, both minorities as well as majority. The Code shall not endanger the freedom of religious minorities in any way. It will rather reflect the sanctity of one’s religious beliefs and practices in a more matured form.
Even after 57 years of independence, coming of womens’ liberation and start of the age of IT revolution, India still reels under the vicious social set up which has its roots within the patriarchal domain. In Orissa a drunken Sheikh Sher Mohammad says ‘talak’ thrice to his wife but forgets in the morning. The neighbours and the clerics asked him to desert her even though within Islamic laws ‘Talaq’ pronounced in intoxicated state is invalid. In Haryana, the panchayat dominated by male Hindu hardliners forcibly asked wife to tie ‘rakhi’ to her husband because they later turned out to be from same ‘gotra’. Likewise there are various instances within every religious community where the males dominate their will upon the weaker sections just for the satisfaction of their ‘egos’, which gets backed by lousy religious interpretations. [vi]Need of the hour is therefore to evolve a mechanism to check religious misinterpretation, for which a Uniform Civil Code is desirable.
The inconvenient as well as archaic features of the personal laws are necessary ingredients in causing hardships to the women community. Legal reforms have been in the center of the agenda for promoting gender justice in India[vii]. Women have been the targets of injustice even today. India is a signatory to the Convention on Elimination on All forms of Discrimination Against Women[viii] or CEDAW. The Uniform Civil Code can incorporate the provisions of CEDAW for the welfare of women[ix]. Incidents of divorce, bigamy, polygamy, inequality with respect to property laws etc. have time and again brought to notice the fact that there is a need to have a uniform system of laws that will protect the interests of women. Their interests shall only be guarded if we have a single law at the national level; applicable to the entire women community, irrespective of the community or religion they belong to. The CEDAW also talks about sanctions, where possible in order to prevent discrimination against women[x]. However the instances of Imrana, Guddi, and Shah Bano etc. clearly state that imparting justice to women is a far cry if we let the women be governed by their respective personal laws. The Universal Declaration of human Rights also talks about Equal protection of law, which is also applicable to women [xi]. The formation of a Uniform Civil Code shall also ensure the incorporation of the various International Human Rights Treaties within its domestic laws.
The Supreme Court has time and again suggested that the Parliament should frame a Uniform Civil Code for the country, as that will help the cause of national integration. The Supreme Court is the upholder of the Constitution and interprets it in the light of the spirit of the same. While Article 25 guaranteed freedom of conscience and free profession, practice and propagation of religions, Article 44 has divested the religions from social relations and the personal law. Thus Article 44 is not in conflict with Article 25 and 26[xii] of the Constitution. These are reflected in the various Supreme Court exhortations over the years on this sensitive and contentious issue. The Court has gone to the extent of saying that Article 44 has remained a dead letter[xiii], thereby expressing their anticipation as to the possibility of the existence of a Uniform Civil Code. Laws relating to marriage, divorce, inheritance, maintenance etc. are of a secular nature and therefore a uniform system of law governing them is a possibility and is consonance with spirit of the Constitution.
It is ironic that a constitutional provision intended to bring people closer in a secular order has become an object of divisive, often acrimonious debate. The Challenge today is to separate the core issues from the dross and the reactionary. Personal laws relate to marriage, divorce, maintainance, succession, and adoption. They also have tax and other implications. While the domain of these of these laws should not be exaggerated, self-evidently a secular and democratic society requires the common law to “invade” all aspects of human relationships. However, the matter is not as simple as it sounds. As democratic women’s organizations have been pointing out, the concept of a uniform, or rather equality, between communities and equality within communities, that is, between men and women The unfortunate truth is that personal laws, as they exist in India, tend stubbornly to discriminate against girls and women. This is not to deny the gains made by various attempts that are reforming these laws and the progressive contributions made over the long term by the higher judiciary in moderating or lessening the iniquitous impact of the personal laws. It cannot also be denied that, for a complexity of reasons, the personal laws of some religious than the counterpart laws of other communities. Muslim women are about the worst off, but the essential problem does not concern Muslim women alone. Women—Hindu, Muslim, Christian, Sikh and so on – are invariably the losers under the personal law regime. The embryo of a common civil code is seen in such progressive enactments as the Special Marriage Act, 1954 but such instances are few and far between. Gender discrimination is the critical issue. Pious advocacy of a uniform civil code as an instrument for ushering in “national integration” and communal campaigns that use Article 44 as a stick to intimidate minorities with fail to address this issue. The democratic women’s movement is absolutely right when it proposes that call for a uniform civil code, which must eventually be put in place by any society that calls itself secular and democratic, must be “preceded” by the demand for equal rights and equal laws that ensure gender justice. The task is well cut out.
History and Codes and Codification in India
According to Oxford dictionary, ‘code’ means ‘a systematic collection of statutes, body of law, so arranged as to avoid inconsistency and overlapping’. Legislature seems to be the most important source of law in modern times. By legislation, sometimes, a new law is made, sometimes, a custom or an usage is embodied in a statute, and it is put in a coherent and systematic form. The law put in this form is called code. The law making and putting it in this form is called codification. Thus codification means promulgation, compilation, collection and systematization of the body of law in a coherent form by an authority in a state competent to do so.
There have been codes since very ancient times. In India, the Code of Manu[xiv] is a very ancient code. There were many other law givers who gave their codes as Yajnavalkya, Brihaspati, Narada, Parashara etc. These various codes applied in different parts of the country. Though these codes cannot be said to be codes in the modern sense of the term, they are important because they made a beginning out of which the modern codes evolved in course of time.
During medieval period personal laws and customs governed people. When the Britishers came here, they too, as a matter of policy, recognized personal laws and local customs, and justice was administered in accordance with that. But after they had consolidated their position here, they paid their attention to codification. Under the provisions of the Charter Act of 1833 the first Indian Law Commission was appointed with Lord Macaulay as its chairman. They drafted a number of codes such as the Indian Penal Code, the Civil Procedure Code and the Indian Limitation Act. A Second Law Commission was set up under Charter Act of 1853. The Indian Penal Code was passed. Later on, the Criminal Procedure Code and some other Acts were drafted and passed. Law Commissions were set up again in 1861 and 1879, which drafted and revised many Acts. Thus the criminal law, civil law, in most part, And procedural laws had been codified. Now the personal laws remained operative in respect of limited fields only. With the introduction of legislatures in Provinces and the Centre the codification was expedited. After nation became independent, various Law Commissions made recommendation in regard to personal laws which are still pending.
India is a developing country facing numerous problems. Planning has been resorted to for a comprehensive development. The planned development of legal jurisprudence is possible only through codification. A nation cannot make the desired development if the people are left to regulate their relations in different and divergent ways. By codification there comes uniformity and the desired development is speedily achieved.
For the national unity and integrity, which unfortunately are very grave problems of India, the uniformity of the law is very necessary, which can be achieved only through codification. Perhaps it was keeping this objective in view that Article 44 of the Indian Constitution that is, ‘Directive Principles of State Policy’. It runs as: -
“The State shall endeavour to secure for the citizens a uniform civil code through out the territory of India”.
Thus in India, though much has been done towards codification, there still remains more to be done as far as personal laws are concerned.
Codification brings about certainty. Laws no longer remain vague and uncertain as it is generally in precedent and custom. It makes law simple and accessible to everybody. It can be said that law is logically arranged in a coherent form. There are little chances of any conflict or inconsistency arising among the different provisions of the law. Thus the law is harmonized and systematized in the code. This would in a sense prevent frivolous petitions filed before Courts regarding personal laws and their implementation and thus preserving precious time.
The codification makes the law stable. The law which comes into existence through other sources has not that much of stability. Stability is very essential for law so that the people may have confidence in it and legal transaction may be made easily and smoothly. Also, it is an instrument of forging unity among the people. Codified laws have uniform and wider application. The persons governed by the same laws, in course of time, develop an affinity amongst them and they come closer to each other. Thus, it helps in creating unity and integration in a country like India, which is a land of diversities. This is one of the major arguments for promoting the idea of uniform civil code in India
It is pertinent to note that most of the demerits of the codification have been magnified and exaggerated. Codification of personal laws has undoubtedly some demerits but they are very insignificant in comparison to the merits it has. Codification causes planned developed of law. It enables the law to fulfill the purpose for which it is meant. Many of the demerits have been attributed to it due to mistaken view that codification means the complete abolition of case law and customary law. Contrary to it, these case law always work as a supplement to the code by interpreting it, reconciling it and filing up the lacuna, if any because in code, howsoever meticulously prepared they might be, some defects generally find their place. If case law functions side by side with the code, most of the demerits would not come into being at all.
India needs a Uniform Civil Code. The Constitution says, bit only in a manner of speaking –in the soft part labelled “Directive Principles of state Policy”, which include such tall promises as the “right to work [and] education”, “free and compulsory education for all children”, and so forth. Article 44 “directs”, non-bindingly of course, that the state shall make an effort to bring about uniform civil code. Even Italy has one, as do the rest of the developed world. Nowhere is a scenario in India, of various personal laws jostling together. It needs to come on the heel of a political consensus, which has been a long term demand. We all know that this has to be marked by consensual politics. But when and how…. these questions still remain unanswered?
[i] Under Section 118 of the Indian Succession Act, applicable only to the Christians, “no man having a nephew or niece or any nearer relative shall have the power to bequeath any property to religious or charitable uses except by a will executed not less than 12 months before his death”.
[ii] It would be obvious to note that while Imrana was issued the ‘Fatwa’ that made her ‘haram’ to her husband while her father-in-law Ali Mohammad was booked under IPC (section 376) and not stoned to death as per the Islamic laws.
[iii][iii] That the Muslim Personal Law has not delivered justice to women is well chronicled. (Misinterpreted and misguided decrees have been repeatedly reflected in cases like Bai Tahira v. Ali Hussain Fissali Chota case of 1979 or the Smt Khatoon v. Mohammad Yamin case of 1982)
[iv] Under Section 8 of the Hindu Marriage Act 1954, there exists a provision for registration of marriages. However, it's left to the contracting parties to either solemnize the marriage before the sub-registrar or register it after performing the ceremony in conformity with Hindu beliefs.
[v] The Hindu Marriage Act prohibits marriage between two persons within the prohibited degrees of relationships. For example, a Hindu cannot marry his own brother's or sister's daughter. However, the Act immediately adds that such marriages are valid if permitted by the customs governing the parties to the marriage. In the South there is a custom to marry one's sister's daughter, while in the North it is prohibited; * Though `Saptapadi' is essential for solemnising the marriage but not so if it is not required under the customs governing the parties to the marriage. * In the matter of succession and inheritance, the `mitakshara' and `dayabhaga' schools have different rules of succession with even different sub-schools within the former. For example, while in the North, in a partition between father and sons, the mother is given a share equal to that of a son. In the South, this practice has fallen into disuse and hence the mother would not get a share;
[vi] Faizan Mustafa, “ Notional Integration”, Hindustan Times, 21st July 2004.
[vii] Kirti Singh, 'Unequal Personal Laws', The Pioneer, 28 February 1996.
[viii] India became a signatory to the Convention on 30 July 1980 and ratified on 9 July 1993 with two Declaratory Statements and one Reservation
[ix] Article 2(a) of the Convention states that in order to embody the principle of equality of men and women the state shall undertake such steps through legislations and other means, if they are not yet incorporated within the national laws.
[x] Article 2(b)
[xi] Article of the UDHR states that men and women, within limitation with respect to race or religion are entitled to rights as to marriage, during marriage and at its dissolution.
[xii] Article 26 talks about the rights of the religious denominations to manage the affairs of their religion without any interference from the state, whatsoever.
[xiii] Article 44 of the Constitution of India states that the State shall endeavor to secure a Uniform Civil Code for the people of India.
[xiv] It refers to Manu Smriti