The preamble of the Indian constitution provides 'equality' of status and opportunity for all the citizens of India. Ideally, it should mean that the citizens are treated equally by the state irrespective of their religious identity. Unfortunately, that has not been the case for Indian citizens. Although the framers of the constitution had instructed the future lawmakers to keep Uniform Civil Code (UCC) in their minds while enacting the laws by including UCC in the Directive Principles of State Policy, the parliamentarians of free India have not shown much seriousness to implement it. As a result, India still has different laws for marriage, divorce, inheritance, and adoption for various religious communities, which is actually against the idea of equality before the law.
It is often said that the successive governments did not implement Uniform Civil Code because they were appeasing the Muslims. Appeasement would mean that the Muslims have more rights compared to the citizens belonging to the other religious communities, while Muslim women have inferior rights when compared to women of different religious backgrounds. Because of this reason, after witnessing the attitude of the then government on the question of the Uniform Civil Code, Nehru's cabinet colleague Mohammadali Carim Chagla, who belonged to the Muslim community, wrote in his autobiography, "The constitution is binding on everyone majority and minority...Jawaharlal showed great strength and courage in getting the Hindu Reform Bill passed, but he accepted the policy of laissez-faire, where Muslims and other minorities were concerned. I am horrified to find that in my country, while monogamy has been made the law for the Hindus, Muslims can still indulge in the luxury of polygamy. It is an insult to womanhood, and Muslim women I know, resent this discrimination between Muslim women and Hindu women."
The people who are against the implementation of the Uniform Civil Code often argue that it is incorporated only in the Directive Principles, so the constitution makers did not consider it as an essential law. On the contrary, the constitution framers have accorded such high importance to it that they incorporated a separate Article in the constitution for the Uniform Civil Code. In addition, there is another argument that Article 44 lacks enforceability. Though it is a fact that it is not enforceable, Article 15(3) is mandatory. The lawmakers of India can make special provisions for women in communal-personal laws, which might be the starting procedure for implementing the Uniform Civil Code.
The Uniform Civil Code is not new to India. It has already been implemented in Goa. It was introduced in Goa by the Portuguese rulers, and it continued to prevail, with some modifications, after the liberation of Goa. Although the Indian government had abrogated all the colonial laws after Goa’s liberation, the family laws were retained because the majority of Goans, who followed different religions, wanted them to be retained. Today, the population of Goa comprises approximately 64% Hindus, 31% Christians, 4% Muslims and 1% other communities, all of which are governed by the Portuguese Civil Code. The successful implementation of a Common Civil Code in Goa should be an inspiration to implement it in the rest of the state.
Apart from simplifying complex religious laws for civil affairs and implementing the same civil law for all citizens, the Uniform Civil Code has another aspect, which is the uniformity between men and women. All the religious civil codes give males the privilege and are anti-women. Indian women have to face many hardships because, in matters related to divorce, marriage, and inheritance, about a century old regressive laws were enforced, which did not give them equal status.
Even though the lawmakers of free India have not made serious efforts to implement the Uniform Civil Code but Indian judiciary through the judgments, has tried its best to protect the rights of women. In the Shah Bano case, a classic case of conflict between religious-personal code and secular criminal code, the Supreme Court applied the secular criminal code and granted maintenance to a divorced wife. This judgment is considered a milestone in India's fight for women’s rights. Still, the intervention of the judiciary is not enough to bring drastic changes in women's lives. As long as the parliamentarians do not come forward to secularize the religious-personal laws by proposing a Common Civil Code and making it an act, there can not be a permanent solution to the problem.
Furthermore, in a diverse society like India, where communal problems have been on the rise, the introduction of the Uniform Civil Code would promote national unity and integration. In the Shah Bano case, then Chief Justice YV Chandrachud observed, “A Common Civil Code will help the cause of national integration by removing disparate loyalties to laws that have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the state which is charged with the duty of securing a Uniform Civil Code for the citizens of the country, and unquestionably it has the legislative competence to do so.”
In the Sarla Mudgal case, Justice Kuldip Singh stated,
“The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India is on unequivocal mandate under Article 44 of the Constitution of India, which seeks to introduce a uniform personal law, a decisive step towards national consolidation.”
Hence, the Supreme Court, in various judgments, has observed that a Common Civil Code would strengthen the unity of the country.
In 21st century India, as we celebrate 75 years of independence (Azadi Ka Amrit Mahotsav), there should be a gender-neutral civil code for all Indian people, irrespective of their religion, which must end the male privileges of all religious communities and grant equal rights to women. By doing this, our parliamentarians can truly pay homage to the freedom fighters who fought and made many sacrifices for the country's freedom.
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