PublicationsINDIA ABOUT ARTICLE -44: A SHORT BRIEF

August 16, 20210
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INTRODUCTION

Recently, on 07th July, Delhi High Court made it clear that a new civil code for the country is necessary to meet the country’s fast social and demographic development. Justice M Prathiba M Singh observed that “youth of India belonging to various communities, tribes, castes, or religions should not be forced to grapple with issues arising due to conflicts in different personal laws, especially concerning marriage and divorce.” [1]

A Uniform Civil Code will make it possible for all India’s citizens to enjoy civil and personal rights (including marriage, divorce, inheritance, and adoption) equally regardless of their religion. In the contemporary scenario, religious denominations have various laws that govern different elements of religious practice, such as the Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Parsi Marriage and Divorce Act. Several Muslim personal rules are based on Islamic scriptures but are not legislated.

B.R AMBEDKAR’S OBSERVATIONS

Article 44 of the Indian Constitution lays down that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India.[2]The requirement of the Uniform Civil Code has been a subject matter of eternal debate since the Constitution was drafted, and no clear decision has been made as of yet. Dr.Ambedkar, widely known as the “Father of the Constitution,” was consistently in favour of a Uniform Civil Code in the Constituent Assembly, and he opined that in light of the absence of a UCC, the government’s efforts to promote social reform would be compromised.

He argued, “I do not understand why religion should be given this vast, expansive jurisdiction to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what do we have this liberty for? We have this liberty to reform our social system, which is so full of inequities, so full of inequalities, discriminations, and other things that conflict with our fundamental rights. It is, therefore, quite impossible for anybody to conceive that the personal law shall be excluded from the jurisdiction of the State.”[3]

WHY IS IT NEEDED?

For citizens from different religious groups, the laws of each religion tend to be radically different, and there is no consistency about how issues like marriage, succession, and adoption are handled for those from different communities, which goes against the guarantee of equality enshrined under Article 14 of the Indian Constitution. When it comes to personal laws, most reforms have been only partly effective. For example, Hindu personal laws have experienced many revisions, whereas there have been fewer changes to Muslim personal laws.

For example, Women are still members of their husband’s family even after marriage due to the 2005 modification to the Hindu Succession Act. To help ensure that Hindu widows do not lose their property because they die intestate, their property is passed to their husbands’ families upon their deaths.

A UCC will promote consistency between personal laws and gender equality. This in turn will cause a repel effect essential changes in the society.

HOW UNIFORM CIVIL CODE EFFECTS ON ARTICLE -25 OF THE INDIAN CONSTITUTION

The notion of a UCC undermines the right to freedom of religion (Article 25 of the Constitution). For ethnic and religious minorities, separating personal laws is one of the many ways individuals have defended their rights to follow their own faith. If implemented, the UCC may be used to diminish diversity and homogenize culture.

The Law Commission, in recommending a policy for advancing personal laws, noted that it would be crucial to protect the rich diversity of laws that people of different faiths, regions, and ethnicities have brought to their countries, while also ensuring that these laws do not conflict with basic human rights. A proposal is that the legislature initially focuses on the equality of men and women inside their respective communities, rather than on the equality of different groups.

THE SUPREME COURT OF INDIA’S VIEW

The Supreme Court from 1985 in Mohd. Ahmed Khan v. Shah Bano Begum[4] held that “A national integration promoting Civil Code is needed in order to provide uniform loyalties and create a context-free of contradictions for the country.”Article 44 is said to be a “dead letter,” as the court noted.

Sarla Mudgal, President Vs Union Of India &Ors[5][6]held thatIt appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. When more than 80% of the citizens have already been brought under the codified personal law, there is no justification whatsoever for keeping in abeyance the introduction of a “uniform civil code” for all citizens in the territory of India.

The Supreme Court in Lily Thomas, Etc. Etc. vs Union Of India & Ors[7] observed that: A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation.[8]Making law or amendment to a law is a slow process, and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be unwise and incorrect to think that all laws have to be made uniformly applicable to all people in one go.[9] The process of law can remedy the mischief or defect which is most acute at stages.

CONCLUSION

Despite criticisms of introducing a uniform civil code, India is arguably the only country in the world in which efforts to create one are seen as communally motivated. The cornerstone of democracy is a common civil code, which helps to minimize social tensions. India is the world’s largest democracy. It doesn’t make sense that India does not have its own. Although every year the debate on it kicks off, nothing is being done. Now is the time that government should have consultations in place and implement them accordingly.

REFERENCES

[1]Hope for a Uniform Civil Code should not remain a mere(https://www.barandbench.com/news/litigation/hope-for-uniform-civil-code-should-not-mere-hope-delhi-high-court-law-ministry)

[2]https://www.advocatekhoj.com/library/bareacts/constitutionofindia/44.php?Title=Constitution%20of%20India,%201949&STitle=Uniform%20civil%20code%20for%20the%20citizens

[3]Why not a Common Civil Code for all? – The Hindu. (https://www.thehindu.com/opinion/lead/Why-not-a-Common-Civil-Code-for-all/article14491018.ece)

[4] 23 April 1985 AIR 945, 1985 SCR (3) 844

[5]Uniform Civil Code(Article 44) – rachit baijal.(https://rachitbaijal.wordpress.com/2016/08/24/uniformcivilcode/)

[6] 10 May 1995 AIR 1531, 1995 SCC (3) 635

[7]5 April, (2) ALD Cri 686, 2000 (1) ALT Cri 363,

[8]Should Uniform Civil Code be implemented in India? (http://www.legalserviceindia.com/legal/article-226-should-uniform-civil-code-be-implemented-in-india.html)

[9]Personal Laws vis-à-vis Fundamental Rights, Part III ( https://cjp.org.in/personal-laws-vis-a-vis-fundamental-rights-part-iii-of-the-constitution/)

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Legal Maxim (October 26, 2021) INDIA ABOUT ARTICLE -44: A SHORT BRIEF. Retrieved from https://www.legalmaxim.in/india-about-article-44-a-short-brief/.
INDIA ABOUT ARTICLE -44: A SHORT BRIEF.” Legal Maxim – October 26, 2021, https://www.legalmaxim.in/india-about-article-44-a-short-brief/
Legal Maxim August 16, 2021 INDIA ABOUT ARTICLE -44: A SHORT BRIEF., viewed October 26, 2021,<https://www.legalmaxim.in/india-about-article-44-a-short-brief/>
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INDIA ABOUT ARTICLE -44: A SHORT BRIEF.” Legal Maxim – Accessed October 26, 2021. https://www.legalmaxim.in/india-about-article-44-a-short-brief/
INDIA ABOUT ARTICLE -44: A SHORT BRIEF.” Legal Maxim [Online]. Available: https://www.legalmaxim.in/india-about-article-44-a-short-brief/. [Accessed: October 26, 2021]
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Author: Samrat Anand

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