Abstract- This article specifically gives attention to Uniform Civil Code and gender justice. If we discuss the Indian socio-legal perspective then we can find these two are closely related to each other. The basic issue is that to ensuring justice, rights, liberty and equality to women. There is a need to address gender issue very seriously. This paper is an attempt to relate the UCC and gender justice. It is the necessity to improve the condition of women of all religion. Women empowerment is must in all areas like, social, health, security. Article-44 of Indian constitution talks about the Uniform Civil Code.
This article of the constitution had been made for the promotion of unity and integrity of the nation, which is the aim enshrined in the preamble of the constitution. India is a state, where the welfare of the people always gains the priority. In a welfare state, there is no discrimination exists on the basis of caste, religion and sex. But, In India, there is a difference between all the personal laws, because of them the inequality on the basis of gender prevails. The Indian constitution provides several provisions to secure gender justice under Part III as well as in Part IV. We can say UCC is the need of the country to provide rights and liberties to its citizens without any discrimination. Social Justice includes the term gender justice. Women of all religion will get the justice in the court of law and they can enjoy their rights freely through the Uniform Civil Code. The establishment of Uniform Civil Code is the ongoing debate between the constitutional experts and religious leaders and extremists because Uniform Civil Code refers to a single law which would be applicable to all citizens in India even in their personal matters like marriage, adoption, maintenance , inheritance etc.
Keywords- Constitution, women, gender
justice, uniform civil code, equality, inequality, fundamental rights, right to
religion.
Introduction- Uniform Civil Code
simply means one nation one rule. Uniform Civil Code has been incorporated in
Directive Principle of State Policy(DPSP) under Part IV of the constitution. In
the constituent assembly there were two type of members, those who wanted to
adopt the Uniform Civil Code and reform the society and other, those who
opposed the adoption of Uniform Civil Code. Basically there were a number of
Muslim representatives from Muslim League and some minor communities, which
were opposing the adoption of UCC because those all were governing by their
personal laws. Historian Ramchandra
Guha writes in the book India after Gandhi , that Dr. B.R.
Ambedkar and Pt. Jawaharlal Nehru wanted
to established Uniform Civil Code in the country. On this basis of Lex Loci report, in 1840 the
British government had framed Uniform laws for crime, contract and evidence but
personal laws of Hindu and Muslims were left as uncodified by them. In India
Uniform Civil Code is widely debatable topic and since a petition had been
filled in Supreme Court in 2019, the question to frame Uniform Civil Code for
the country to enhance national integrity and gender justice, social justice ,
equality and dignity of women. Often women suffer gender based prejudice,
that's why they are marginalized. Reformation should be done in personal laws
without violating the fundamental rights of the constitution to promote gender
and social justice to women.
Constituent assembly and Uniform Civil Code - In the constituent assembly, the main objection against the Uniform
Civil Code had been raised by Muslim members. According to them, there are two
objection regarding the Uniform Civil Code. Firstly, UCC would violate the
fundamental right mainly right to religion. Secondly, it would become the cause of tyranny for the
minority. They pointed out that there is a huge diversity in personal laws and
secular activities comes under their personal laws. Secular activities which are associated with
religious practices, protected by Clause 2 of Article 25, with the
guarantee of religious freedom under Article
25(1).
On the second objection
of Muslim members, K.M. Munshi a
member of drafting committee argued that, the makers of the constitution are
going to consolidate personal laws in such a way that the way of life of the
entire nation can be unified and secular. He also gave the example where
Uniform Civil Code prevails. In support
of UCC, Dr. B.R. Ambedkar said
" I don't personally understand
why religion should be given this vast, expensive jurisdiction so as to cover
the whole life and to prevent the legislature from encroaching upon that field.
After all, what we are having this liberty for ? We are having this
liberty in order to reform our social
system, which is so full of inequalities, discrimination and other things,
which conflict our fundamental rights."
The constitutional
framers used to talk about UCC in constituent assembly and incorporated the
provision for UCC in the constitution to integrate law for religion and to
promote equality and unity among the citizens which will lead India, to become
a strong nation. However, the issue of gender justice was not more debatable
and prominent in the constituent assembly.
Supreme Court of India and Uniform Civil Code- The Supreme Court of India through its various
decisions has expressed the desire to frame a Uniform Civil Code. The judiciary
in India has noted that there is a need to frame UCC for the women empowerment
and also for the development of society from old customary law's which are
irrelevant and discriminative in nature. Some cases are given below:
In the case of Mohammed Ahmad Khan v. Shah Bano Begum and
Ors (1985), popularly known as Shah Bano case, the Supreme Court of India
directed parliament for the first time to frame a U Chandrachud Uniform Civil
Code to provide women in India equality and justice. In this case Shah Bano had
claimed the maintenance under section 125 CRPC because she was given triple
talaq by her husband. The former chief Justice of India Y.V. Chandrachud upheld
the order of High court and gave to order to provide maintenance to Shah Bano
and also increased the sum of maintenance.. This case is the milestone of
Muslim women fights in India for their right. Justice also contested that, in
order to provide a quick relief and remedy to a class of person who are not
able to maintain themselves. But this decision was unfavorable to All India
Muslim Personal Law Board and contemporaneous Rajiv Gandhi Government in 1986.
That's why desperately they passed Muslim Women ( right to protection on
divorce) Act, 1986. This act overturned the decision of Apex court in Shah Bano
case and affected the right of Muslim women for maintenance under 125 CrPC.
Ms. Jordan Diengdeh v. S.S. Chopra (1985), in this case Justice Chinnppa Reddy observed
that, the present case as Shah Bano case is another case which focuses on the
immediate and compulsive necessity to frame a Uniform Civil Code. We might
refer the observation of Chief Justice Chandrachud in the Shah Bano case. On
the lack of a Uniform Civil Code, the unsatisfactory affairs of state has been
exposed by the facts of present case.
In Smt. Sarla
Mudgal, President,Kalyani and Ors. v. Union of India AIR (1995), the court emphasized
that there is no relation between personal law and religion in a civilized
society. Supreme Court held that if a Hindu
man is getting married with a Muslim by conversion in Islam, without dissolving
his first marriage. The husband will be guilty under 494 IPC. The court urged the government should take the
cognizance of framing the Uniform Civil Code. But the court in
a subsequent case clarified that, the court has not issued any direction to the
government to enact the Uniform Civil
Code.
Lily
Thomas v. Union of India AIR(2000), In this case almost similar issue, as in earlier
Sarala Mudgal case raised again. The main issue was, if a converted Muslim
enter into a second marriage only with a view to avoid his first marriage and
without any change then, whether the second marriage of that person will become
void?
The Supreme court
held that, where a non Muslim person gets converted into Muslim and enter into
the marriage without dissolving his prior marriage. Then, the second marriage
would be void. Further the Supreme Court had clarified his view on Uniform
Civil Code and said that, court had not issued any direction and guidelines for
the enactment of Uniform or common civil code in the Sarala Mudgal case.
Indian
Young Lawyers Association & Ors v. The State of Kerala( Sabrimala Verdict)
2006
The issue of
Sabarimala has been a burning topic in India. A temple named Sabarimala is
situated in Kerala. This temple is dedicated for the worship of Lord Ayyapan.
Due to customs and traditions of the temple, the priest and other authorities
of temple excluded the women entry into the premises of temple, who are 10 to
50 years old. A PIL was filled in Supreme Court by Indian Young Lawyer
Association, a group of five women lawyers against this customary practice of
the temple. It was argued by them that Rule 3(b) of Kerala Hindu places of
worship rules 1965 ''which states that women, who are not allowed by custom and
usage to enter into place of public worship and temple shall not be entitled to
enter into such places, is unconstitutional and the fundamental right, Right to equality and Right to freedom of
religion and also against the gender equality in the country because it is
discriminative in nature.
The Supreme court
of India has expressed views on Uniform Civil Code through its various
judgement. The Supreme court has also said the government should frame a common
law for its citizens. But, the ability and
power to frame and implement a Uniform Civil Code in the country in the
hands of parliament that's why only government can frame such for the whole
country.
Shayara Bano V. Union of India 2017, there
was a lady named Shayara Bano. She married with Rizwan Ahmed . After the 15
year of marriage, he divorced her through the Triple Talaq. Then she filled a
writ petition in the supreme court against the practice of Triple talaq. Triple
talaq or talaq-e-biddat is a form of divorce, in which a man speaking the word
‘talaq' three times. After that, it is considered that man has given divorce to
his wife. The judges of five bench, on August 20, 2017 declared this practice
unconstitutional by a majority judgement 3:2. As this practice violates A-14,
A-21 of the constitution. By this judgement, Supreme Court improve the
condition of women and provide them justice against this discriminatory practice
of Islam.
Position
of Personal Laws in India and
discrimination against women- If we talk about
Muslim then we find that the holy Quran equal rights as men to women and it
considers women at respectable positions. But there are certain aspects where a
women gets lower place than a men. Hiba is the concept, provides by
Quran. According to this concept, men are the guardian of the family and also
the guardian of a women. Thus, it is the duty of a man to feed his women. Quran
also gives a permission to men that they can married with four women but such
type of right has not been given to women. In the case of divorce women have
less rights. However the concept of ''Triple Talaq'' has been declared illegal.
If we consider the matter of succession, women can not take half of the share
as compared to men. The concept of ''iddat period''( it is the period after
the divorce or the death of the husband) prevails in Muslim law, it means during this period
Muslim women is not allowed to remarry. By these inequalities we can find the
gender inequality in Muslim's. Shariyat law governs the Muslim which is their
personal law.
Now, we will
discuss the Hindu law, in Hindu's we can find the women have equal rights and
liberties in the ancient and vedic times. But there were some aspects, in which
women were being discriminated. Sati system was a example of gender injustice, however by
the endeavors of the Raja Ram Mohan Ray this system has been abolished. Hindu
women right to property act 1937 came into existence to provide equity
to women in the matters of succession. Before the Amendment
act of 2005, A women can't be a Karta of the family but after this
amendment there is drastic change came for the rights of women in Hindus and
now women can become the Karta of the family.
''If an Indian
Christian domiciled in India marries an Indian Christian woman domiciled in
India , subsequently embraces Islam, marries a Muslim woman, his second
marriage shall be legal . But if a Christian woman who had married a Christian
according to Christian rites, converts to Islam during the life time of her
husband and marries a Muslim, she will be guilty of bigamy''. This is the
example of gender bias and injustice in Christians. Christians are governed by
Indian Divorce Act,1869 which is considered as personal law for Christians in
India.
Goa
is the shining example of Uniform Civil Code-
With some concession
Goa is the great example of UCC in country. The Supreme court of India stated
that in a judgement, Goa is a shining example as Goa has implemented the UCC
related to all, irrespective of all religion, while protecting certain limited
rights. Goa is governing PCC
( Portuguese Civil
Code) as uniform civil code. In a judgement, Justice Deepak Gupta and Bose
stated that PCC shall govern rights of succession and inheritance of all Goan
domicile located in India. The PCC is applicable in Goa in many aspects.
According to this code, a Muslim man whose marriage has been registered in
state, he can not practice polygamy. All the spouses equal right and get equal
share of property as per the code. There is no discrimination on the basis of
gender in Goa. Just like the Goa, a UCC should be implemented throughout the
territory of India with the protection of some rights.
Challenges
associated in the implementation of Uniform Civil Code
I.
Constitutional
challenge(Fundamental rights violation): There
is a possibility that uniform civil code may violate the fundamental rights of
citizens. UCC may be engaged in a conflict with Article 25 and 26 of the constitution. Under Article 25 to 28 of Indian
constitution, the right to freedom of religion have been enumerated. UCC
may violates these rights. Some religious practices can be changed through UCC.
UCC is against the fundamental rights guaranteed under Article 29 as
this article is the protector of 'culture' . Personal laws is the part of the
culture. That's why it is against this article.
II.
Diversification in
personal laws: There are many different customary
practices among several communities. It is very tough to make uniformity and
find a common point between them, still people do not know what actually Uniform
Civil Code is. There is a false perception about UCC among communities, especially among the minorities.
They think uniform civil code will lead their culture laws and tradition to an
end. They fear that UCC will neglect their old traditions and impose rules on
them which would be affected and influenced by majority religious communities.
III.
Sensitive issue: Implementation
of such code is a very sensitive task as it might become the cause of riots. As
we can already faced some problems when the home minister Amit Shah make the
announcement about CAA and NRC in the parliament in 2019. Before the
implementation of this code, it is necessary that people should understand the
reality about the code. They should know it will make gradual changes in the
society and will ensure the gender justice.
Need
of Uniform Civil Code - UCC
promotes secularism in the country, in India there is a kind of selective
secularism as in some aspects we become secular and in some aspects we don't.
Hindus have their codified law but Muslim's are still governing their
uncodified personal law. By the UCC every citizen of India will follow the same
rules and regulation. When every person will be treated equally irrespective of
their religion then, it will called real and true secularism. A uniform civil code will give more rights,
freedom and liberties to women in the country. It will be fruitful in the women
empowerment. Our society is still patriarchal and misogynistic by allowing old
religious rules and regulations. Many loop holes are prevailing in personal
laws of the country. By granting the personal laws we are constituting an alternate
judicial system which still operates on the old traditions and laws. Personal
laws of every religion are widely divergent and, many times, they clashes with
fundamental rights of the citizens. Reformation to personal laws are very
inconsistent as Hindu law has been changed drastically but Muslim law has
adopted only few changes which result into the gender inequality and bias. A
Uniform Civil Code can lead to consistency in the gender equality when it comes
to personal laws.
Conclusion- It
has been clear that Article 44 of the Indian constitution said, '' the state
shall endeavor to secure for the citizens a uniform civil code throughout the
territory of India. A lot of
animosity is caused when preferential treatment is given to some religions.
This can be avoided by Uniform Civil Code. Under one national civil code of
conduct, India will become integrated and it would be helpful to unite India. With
the aid and advice of law commission, Supreme court, attorney general, national
commission of women, government should
frame a uniform civil code for the country. Uniform civil code can be
implemented but after enhancing the level of literacy, awareness on
social-legal and political awareness. A secular country like India needs a
uniform civil code. Several times, the present government of Bharatiya Janta
Party, strongly speaks about UCC but only as a political agenda. There is no any
kind of progress in the framing of a Uniform Civil Code for the entire country.
In a recent judgement, in the case of Vineeta Sharma v. Rakesh Sharma (2020)
, "the supreme court of India held that daughters become equal
coparceners at the birth, even if the father coparcener died before the
amendment act of 2005. In this situation, daughters would still have equal
rights of coparcenary to inherit her father's share of the property." The
apex court of India is still trying to give equal rights and liberties through
its judgement, to women, so that gender inequality and injustice would be
finished.
References
Article 44
''Indian Constitution."
Article 25 to 28 "Indian Constitution."
Mahendra Pal Singh, V.N. Shukla's Constitution of
India, 12th edition 2016.
M.P. Jain, Indian Constitutional Law, Lexis Nexis, 7th
edition 2015.
Constituent Assembly Debate, Vol. VII, 547-48.
Ibid. MSSV JOURNAL OF HUMANITIES AND SOCIAL SCIENCES
VOL. 1 NO.2 (ISSN 2445-7706).
Supra Note1, p.139.
Section 494 "Indian Penal Code."
Prof. S.N. Mishra “Indian Penal Code" 18th
edition
Section 125 "Code of criminal procedure."
http://www.legalservicesindia.com/article/1832/Uniform-Civil-Code-Towards-Gender-Justice.html.
Mohammed Ahmad Khan v. Shah Bano Begum and Ors (1985) AIR
945, SCR(3) 844.
Ms. Jordan Diengdeh v. S.S. Chopra ( 1985) AIR 985 SCR Supl.
(1) 704.
Smt. Sarla Mudgal,
President,Kalyani and ors. v. Union of India AIR (1995), AIR 1531, 1995 SCC (3)
635.
Lily Thomas v.
Union of India AIR (2000), SC 1650.
Indian Young
Lawyers Association & Ors v. The State of Kerala( Sabrimala Verdict) (2006)
, WRIT PETITION (CIVIL) NO. 373 OF 2006 .
Shayara Bano v.
Union of India (2017) , WRIT PETITION ( C ) 118 OF 2016.
