Uniform Civil Code: What Is It And Why Is It Controversial

13/10/2015 7:31 PM IST | Updated 15/07/2016 8:25 AM IST
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The Supreme Court has asked the government if it is serious about implementing a Uniform Civil Code (UCC). A bench of Justices Vikramjit Sen and Shiva Kirti Singh questioned the government about its mandate on framing the Uniform Civil Code so that "unvarying standards are ushered in and all religions are regulated by the same yardsticks in matters of law."

Moreover, the implementation of UCC was a part of BJP's 2014 election manifesto as well. The party promised that it will implement it if it comes to power. The BJP which has frequently accused the Congress and UPA of not moving on the UCC, because of vote bank politics, is now under pressure to live up to its promise.

Now, the SC has given a time of three weeks to the Solicitor General to update the court with Centre's position on the matter.

Meanwhile here's a ready reckoner on why the UCC has been an issue of contention for several decades:

What is the Uniform Civil Code?

A common of set of laws applicable to all citizens irrespective of their religion. That means religious ordinances governing marriage, divorce, adoption and inheritance will be subservient to what the Constitution-framed law holds is fair and just. It is among the Directive principles of the Constitution of India for government to implement a UCC and seven decades on, we're still waiting. A uniform civil code will mean that personal laws that permit unfair practices among minority religions--polygamy among Muslims, for instance--will become subservient to equitable constitutional law.

Why has it been difficult to implement?

For one, the sheer range of India's diverse religions and communities. The Constitution also enjoins all religions and faiths to be respected equally and adherents be free to carry out the articles of their faith. So in a sense, forcing such a code in matters like marriage and divorce might contradict this extremely basic principle. The Hindu right, first through the Jana Sangh and then the BJP, has been pushing for a ‘Common Civil Code’. Its argument is that Hindus have to abide by codified laws on marriage, adoption, inheritance and succession under a set of Acts brought in by the Jawaharlal Nehru government in the face of opposition from the Hindu orthodoxy. Goa, incidentally, is the only state which has a uniform civil code because it used to be ruled by the Portuguese.

Have political parties made a serious effort to push for the UCC?

On paper, yes, but in practice behind some of India's most raging controversies have occurred because political parties have actively sought to subvert the spirit of the UCC. The most well-known of these cases is the Shah Bano case of 1985. Shah Bano was a lady from Indore whose husband, citing provisions in Muslim law, refused to pay her lifelong alimony. She filed a criminal suit--and going against Muslim Personnel Law--The Supreme Court upheld the decision of the lower court which had directed Shah Bano's husband to pay a maintenance amount under the alimony provision of Indian law applicable to all communities. The Rajiv Gandhi government, of the time, brought in an act to nullify the SC judgement but subsequent cases nullified the government action. Today the alimony rulings of the All India Shia Personal Law Board are fairly consistent with the Supreme Court verdicts.

Another example of civil law conflicting with religious laws was in the Githa Hariharan vs Reserve Bank of India case of 1999 the Supreme Court of India dealt with the Hindu Minority and Guardianship Act, 1956. According to this act, the father is the natural guardian of a Hindu child. However, as per the act if the child is born out of wedlock, the mother is the natural guardian. This provision was struck down by the Supreme Court and it was held that the father cannot have a preferential right over a mother in matters of guardianship.

Is it exigent to have a UCC?

India's Special Marriage Act was enacted in 1954, and allows people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party, to marry or divorce under it. The only exception is Jammu & Kashmir. A marriage performed under the Special Marriage Act is a civil contract and, accordingly, does not involve rites or ceremonial requirements.

Moreover several women's right organisations have constantly fought for fair treatment and influenced several court decisions that have managed to rise above the frequent parochialism of religious laws. This has extended to the rights of women in a live-in relationship, surrogate motherhood, rights of sexual minorities-all of which have never even been conceived by religious laws. So with the general liberalism of the courts there is, technically, a way around the binding of religious customs, a uniform civil code may provide a certain consistency and transparency and quicker resolution to the generally-torturous legal proceedings in India.

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