In Karnataka, BJP promises uniform civil code if elected

Context: The BJP’s released its manifesto for the May 10 Karnataka Assembly elections with several poll promises. Prominent among them are implementing the Uniform Civil Code in the State based on the recommendations by a high-level committee which will be constituted if the party is voted to power.

Uniform Civil Code (UCC)

Article 44 of the Indian Constitution states that the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. However, it is not so easy to make a uniform law on personal laws of all religions as each aspect of personal life like marriage, divorce, succession etc. are governed differently. So, Uniform Civil Code is an attempt to unify all civilian laws including personal laws for people of all faith living in India
UCC is the proposal to administer same set of secular civil laws to govern all people irrespective of their religion, gender, domicile, caste, etc. This law will be distinguished from public law and will subsume all laws covering marriage, divorce, inheritance, adoption and maintenance of different religions into one codified law. However, so far it has been difficult to achieve uniformity in personal laws of all religion.

Present push for UCC

Recent promises by BJP in its poll manifesto for Karnataka poll.

Proposal to Examine UCC by Uttarakhand CM days after Uttarakhand Chief Minister took oath.
Private Members’ Bill proposed on UCC by Rakesh Sinha, Rajya Sabha member.
Matter to be taken by 22nd Law Commission as per the Law Minister.
Supreme Court – government should explore the UCC to secure gender justice, equality and dignity of women.
Proposal by Chancellor of Maulana Azad National Urdu University asked the Supreme Court to direct the government to constitute a judicial commission or a high-level expert committee to prepare a draft UCC in tune with international conventions which protect the rights of women.

UCC and Indian constitution

UCC has been provided under part IV of the Indian constitution and is part of DPSP. Article 44 states – “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”
The objective is to harmonize diverse cultural practices and address the discrimination meted out to various vulnerable groups under the garb of religious practices.
During the drafting of the constitution, UCC met with stiff opposition from various corners. Various minority religions especially the Muslims felt that UCC would curtail their freedom of religion, hence were apprehensive of replacing their personal laws with UCC.
It was due to this apprehension that UCC was included as a DPSP rather than a Fundamental right and it was envisaged that it will be achieved gradually and not all at once.
Nevertheless, having UCC embodied in DPSP reflects the intention of securing justice and equality for all citizens.

Benefits of Uniform Civil Code

UCC would not only protect the vulnerable sections, including women and religious minorities, but “promote nationalistic fervour through unity” as well as simplify the complex personal laws.

It will do away with diversity in matrimonial laws, simplify the Indian legal system and make Indian society more homogeneous.
It will de-link law from religion.
It will create a national identity and will help in containing fissiparous tendencies in the country.
It will also help in establishing social justice and gender equality in family matters.
The introduction of UCC will promote monogamy among all the citizen of India including Muslim and it will lead to betterment in the position of women.
It will also remove prejudices against women regarding personal laws on divorce and maintenance.
It will help in strengthening the secular fabric of the country and promote unity.

UCC and the Supreme Court

a) Shah Bano case: In 1985, the Supreme Court ruled in favour of Shah Bano, who had moved the apex court seeking maintenance after her husband divorced her. The then Chief Justice, Y.V. Chandrachud, observed that a Common Civil Code would help the cause of national integration by removing disparate loyalties to law. The Court directed Parliament to frame a Uniform Civil Code.

Despite the Judgment, the government, in 1986, enacted the Muslim Women (Protection of Rights on Divorce) Act, which nullified Shah Bano judgment. The Act allowed maintenance to women only for 90 days after the divorce”.

b) In the John Vallamattom v. Union of India case in 2003, Chief Justice V.N. Khare had observed: “It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country.”

c) S.R. Bommai – SC warned against “mixing politics with religion”. The court had worried whether a secular state should bring a code which can be perceived to be a threat to personal laws based on the religious beliefs of individual religions.

Goa is the only state where Uniform Civil code exists

The Goa Civil Code collectively called Family Laws, was framed and enforced by the Portuguese colonial rulers through various legislations in the 19th and 20th centuries. After the liberation of Goa in 1961, the Indian State scrapped all the colonial laws and extended the central laws to the territory but made the exception of retaining the Family Laws.

Law commission report on UCC – 2018

Law commission said that UCC is currently neither necessary nor desirable in India.
Need for Religion wise Amendment – The commission has recommended religion-wise amendment in personal laws to end discrimination against women within the communities.
Ensure equality within community – It urged the legislator to “first consider equality within communities i.e. between men and women rather than equality between communities:”
Preserve diversity of personal laws in absence of consensus through codification – In the absence of consensus over UCC Commission felt that preserving the diversity of personal law is best way forward. To achieve this, it is desirable that all personal laws relating to matters of family must first be codified to the greatest extent possible and then the inequalities that have crept into codified law, should be remedied by amendment.

Argument Against UCC

Against Right to Freedom of Religion – It will introduce State interference in religious affairs hence against the concept of secularism and may violate Article 25. This may go against S.R. Bommai Judgment which held – The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law and structure of the Indian political system.
It may impact the cultural practices of some tribal communities in India.
Considering the plural society of India – it will be a complex task to unify all personal laws of all religions, castes, communities, tribes etc. across the country.

Way Forward

Hence, when and if an Uniform civil Code is brought into effect, it will have to ensure a balance between the protecting of fundamental rights and religious principles of different communities. Before enacting a common personal law, it is necessary to take into confidence all religion and communities of India.
Further, steps can be taken to legislate on such common matters which are least controversial but with complete consent of every community in India. The idea is to provide uniformity in set of rules by consent and not to create more fissures and fault lines in the name of enforcing a uniform common law for India.