IPF Webinar on Uniform Civil Code

India Policy Foundation    05-Aug-2023
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India Policy Foundation Webinar on
‘Uniform Civil Code’
July 15, 2023 
Dr Alok Sharma
Associate Professor of Law, Delhi University
Dr Seema Singh
Assistant Professor of Law, Delhi University
Lekshmi Parameswaran
(Sr. Research Associate, India Policy Foundation)
Dr Kuldeep Ratnoo:
I welcome you all. Today’s webinar will be moderated by India Policy Foundation’s Senior Research Associate Lekshmi Parameswaran. She will introduce the topic, after which Dr Alok Sharma, Associate Professor, Faculty of Law, University of Delhi, will share her views on uniform civil code (UCC). Dr Sharma has been associated with India Policy Foundation for quite some time and she helped IPF in preparation of some important documents. She has written some papers on Uniform Civil Code. Now I request Lekshmi to take the webinar forward.
Lekshmi Parameswaran
Good evening! I extend a warm welcome on behalf of India Policy Foundation to each and every one who has joined today’s webinar on the Uniform Civil Code (UCC).
The Uniform Civil Code, as we all know is embodied in Article 44 of the Indian Constitution and is part of the Directive Principles of State Policy. It has remained a dead letter for long. A look at the Constituent Assembly debates would reveal that the ideas of unity and equality have been at the core of what India represents. In fact, the majority opinion at that time was in favour of a uniform civil code. The differences were there only in the timeline for its implementation as most of the leaders at that time felt that the different communities were not ready for this.
Yet today, when the issue has finally become a part of the public discourse, it is being termed a direct assault on certain religions and its practices. It has also been termed a targeted attack on minorities. But the fact remains that a uniform civil code is exactly what it says it is – it will uniformly affect all communities, be it Hindus, Muslims, Christians, Sikhs or Parsis.
I believe, what we need to focus on while discussing uniform civil code are the inherent issues of ensuring gender justice and national integration which seem to be getting overlooked. It is interesting to note that today, India has almost 200-300 personal laws and some of them are highly discriminatory in nature. The two main arguments that we often hear being raised are that a common civil code will infringe on the fundamental rights given in Article 19 and it is unfair to the minority communities.
In today’s webinar, we hope to find answers to the need for a uniform civil code in the present times, how exactly will a uniform civil code affect different communities? What will be the impact, if it is implemented. And how can one address the concerns and criticisms? I request Dr Alok Sharma to share her views on the issue.
Dr Alok Sharma
Namaskar! I welcome you all to today’s webinar on behalf of IPF. Today’s topic is UCC. I must tell you that we started this topic in IPF in 2016 itself. We started working on UCC and formulated certain parameters on how to present this work. Later on, we focussed on triple talaq. As you all know, IPF has published research relating to triple talaq.
I thank Dr Kuldeep Ratnoo for giving me this opportunity to introduce this topic. We have been discussing so many things regarding UCC. But UCC has roots in the Constitution itself. Nowadays, we hear these things that it is Directive Principle under Article 44 but before that, I would like to take you to the Constitutional Assembly debates on this topic. When we see the debates, it was very much contended by Dr B.R. Ambedkar that it should be part of the fundamental rights. A lot of debate was there on this aspect. It was argued that UCC should be implemented with our Constitution itself and that there was no need to postpone it. But there were many members from the Muslim minority at that time, now they are the second majority, who felt the time was not right. The country was divided, partition was going on, few Muslim members had participated in this debate. Despite this, very few the members rejected the concept of UCC. Many scholars, many representatives from Muslim community opined that UCC should definitely be implemented in the country but at a later stage, when the conditions are suitable for that. For the last 75 years, we are waiting for those suitable conditions. When will those conditions happen in the country and when we can have UCC for all people?
As far as I am concerned, I always see UCC from the perspective of a woman. In all my writings which I have done on UCC, I have argued that the basic purpose of this aspect is to have gender equality. Being a professor of law, I have come across many laws and a number of laws are discriminatory against women. Of course, in Hindu Law, we have seen many amendments from time and again. There was some kind of resistance from this community but ultimately, it was easy for the parliamentarians to do reforms for the community of Hindus. The Hindu personal law has been codified and it has all kinds of modern concepts relating to gender equality. It talks about guardianship, it talks about adoption, equal property rights, succession, more rights for women as far as divorce is concerned. Hindu males have less grounds for taking divorce, but females have additional grounds for getting divorce in their marriage.
So, we can say, Hindu law is making pace with the changing times. But all other laws, be it Christian law or Muslim law or Parsi law, they are not making pace with the changing times and a lot of grounds are there where women are discriminated. So, I think today is the right time that we should think about implementation of UCC. Because it will give a kind of uniformity in the implementation of all laws. Ultimately, there will be peace and solace in society. When all of us have equal laws, there will not be any issues like we have seen in the recent past. If a Hindu male wants to remarry, then for namesake they convert themselves into a Muslim and solemnise a marriage under the Muslim law. It is a contract. So, all kind of vices can be removed if we have a uniform civil code.
Moreover, the Indian judiciary for the last many years is emphasising and pressurising the government to have UCC so that many kinds of discrimination in the implementation of laws can be removed. So, I say that UCC is not the demand of today but it is a constitutional mandate. Being the citizen of India, it is the duty of all of us to accept UCC in a form where One Nation One Law can be implemented.
This is the introduction from my side, if you want to ask any questions, I shall be available. Thank you so much.
Lekshmi Parameswaran
Ma’am, I have a question to ask. You said at the heart of UCC is gender justice. There was recently a letter that was made public. It was written by the All India Democratic Women’s Association to the Law Commission. In it, they said that uniformity cannot be equated with equality and justice for women. They also opined that uniformity will not stop discrimination. What is your take on this especially since women have had no role to play in the drafting of personal laws?
Dr Alok Sharma
Generally, when we talk of the Constitution, we have Article 14. Article 14 only talks about the formal equality. So, it says equality before law or equal protection before law. Now from where do we have the provisions for reservation? From where do we have special provisions which we have made for women or for the disadvantageous people? So, equality does not mean equality among unequals. That is why we have all these kinds of provisions in our Constitution. So, when we talk about uniform civil code from the perspective of gender equality, I never say that when we have a code all of us should follow the same kind of procedures or formalities. Because we have to think from the perspective of the prevailing culture and tradition as well.

Now, when we say law, why cannot women feel that if there should be monogamy, why would all women be not happy for that? Or if we say all women can have the right of adoption or they are the natural guardians of their children or they have the equal right of succession, what else is left? Personal laws are only about marriage, divorce, maintenance, adoption and guardianship and of course succession. So, these five to six points are there which are relevant from the perspective of personal laws. So, if we have equality in all these laws, I don’t think that any women will be discriminated against on these grounds. Because these are the basic things.
When I say that we should have UCC in personal laws, we are never thinking about changing the tradition of solemnising of marriage or the style of solemnisation. So, if in Hindus, we have the performance of Saptapadi; in Muslims, they take the consent of a woman before marriage; in Christians, they go to the Church. So, all these formalities can very well be in place. The question is only about the rights. After the marriage is registered, all will be treated equally as far as the law is concerned. There is no question that everybody will take saath pheras, or everybody will take consent, that is a different thing. Different communities can have solemnisation of marriage as per their own traditions. Why can’t equality be there if the laws are equal?
An interesting fact is that in our country, 90 per cent law uniform. So, when we have more than 90 per cent law uniform, be it commercial laws, be it civil laws or be it any other law, why can’t we have personal laws as uniform? And Article 13 specifically says that any law at the time of enactment of the Constitution, any law which is violative or discriminatory against Chapter III, i.e., fundamental rights, that should be declared as void. So, deliberately because of all kind of politics, they have kept personal laws outside the purview of Article 13. Why so? There is no justification for the same.
In this view, I would like to place one more point here. In the Shah Bano case, that was decided by the honourable Supreme Court, the Supreme Court dealt in detail with different boxes of the authority of Muslim personal law. Nowhere did Supreme Court write that this discrimination regarding the law of maintenance of women is against Article 13. There was no need to discuss anything else. But we have to test each and every law on the test of Article 13 where anything violative of Chapter III, that is the fundamental rights, should not stand in the country. So, Article 13 is the only way. I hear that people are talking about Articles 25 to 28, the right to freedom of religion. Right to religion has nothing to do with this. Right to religion only talks about the way you want to practice your religion, the way you want to propagate your religion and it is not an absolute right. They have reasonable restriction clause. So, there is no confrontation in right to religion and uniform civil code at all. Some people are misguiding the countrymen by saying there is violation of right to religion in this aspect.
Lekshmi Parameswaran
Thank you so much for sharing your views, ma’am.
Dr Seema Singh has joined the webinar. I welcome you to the webinar.
Dr Seema Singh did her LL.B. and LL.M. from Lucknow University and Ph.D. from Jamia Millia Islamia University in forensic science. Her core area of interest is Constitutional Law. She was awarded the Kamal Sharma Award for Academic Excellence in 2021. She is Member of Academic Council, University of Delhi. She is an Advisor to The National Commission for Scheduled Tribes and has authored and edited three books. She is also an activist who has taken up many important causes and has been part of several television debates. We look forward to hearing your views on Uniform Civil Code.
Dr Seema Singh
I am extremely grateful that I got an opportunity to express my views on uniform civil code. It is a relevant and contemporary topic. So many debates and discussions are going on about UCC. Few people are supporting, few are opposing it. I think before discussing it in the context of the contemporary time, it is very much important to know the history. I am going to divide the entire discussion in two parts. The first one is before the commencement of the Constitution and the second one is post the commencement of the Constitution.

There are so many things which are very important. We all know that before the arrival of any other religious community to India, the Hindu community used to be governed according to their own customary laws. After the Islamic invasion and after the arrival of Christianity, the people belonging to different communities started residing in India. If you see, for a long time, the Islamic law was uncodified. It was firstly codified by Aurangzeb (note: Some historians say that the Islamic laws were first codified by Firoz Shah Tughlaq). It was called Fatawa-i-Alamgiri. For this, he invited 500 Muslim scholars and they codified this Islamic law. An interesting fact here is that even after many years, even to this day, there are certain Muslim communities that still follow Hindu customary laws. When we talk about 1937, we need to ask where did Shariah come from?
When the Britishers came to India, they found India as a very diversified country. They couldn’t comprehend that it is a country. After this, when the mutiny of 1857 took place, it completely shook the British system. They realised that they could not continue to rule this country for a very long period. So, they tried to promote identities and they started portraying diversity as differences. They took two approaches – the first one was the religious line and the second one was the caste line. They enacted Special Marriages Act 1872 and Indian Succession Act 1925. They deliberately kept Muslims outside the enacted legislation. What was the reason for this? The two legislations were based on the Christian law. The main reason for exempting Muslims was that they wanted to promote Muslim community as a separate identity. In 1937, when they formulated the Shariah Act, it was explicitly mentioned that there will be no governmental interference in Muslim law. The Shariah Act was a big win for Mohammad Ali Jinnah. And Jinnah was basically pressuring the British to enact this particular legislation. So, we can say that till 1937, majority of the Muslims were following the customary law of Hindus.
You can see that in the Constituent Assembly debates, there is a discussion on whether there should be a uniform civil code or not. Two things became clear from these debates. If you take a look at the debates of Dr. Bhimrao Ambedkar, he said that the majority of the country will still be governed by the common civil law in all matters of the civil relationship. Dr. Ambedkar was in favour of the UCC. A major reason for this according to him was that the majority of Muslims living in India are converted Hindus. So, their customary practices are same like that of Hindus. He said this is the best time to implement UCC in India. After this, various leaders like Alladi Krishnaswamy Iyer and K.M. Mushi were supporting this idea continuously.
K.M. Munshi had stated that there were a lot of countries, both Islamic and Non-Islamic where Islamic law was codified, there they had accepted the change. So, if we implement these changes in India, that can be something which is very progressive in nature. But somehow, Pandit Nehru was not in favour of UCC at that time. And one of the very important reasons given by Pandit Nehru at that time was that India was divided over religious lines. In the name of Hindu-Muslim, the country was divided and a new nation, Pakistan was formed. For the Muslims who remained in India, there was this mindset that they should not feel alienated. One of the biggest reasons for this was that the Muslim League had boycotted the Constituent Assembly.
So, somewhere, the Constituent Assembly was under a lot of pressure to prove that they were protecting the rights of Muslims despite the boycott of the Muslim League. This was the main reason why a place was given for UCC in the Constitution in the form of Directive Principles of State Policy. This issue was left saying that this was not the right time as the country was divided and the internal condition of the country was not good in terms of law and order. So, it was left to the future governments to see when to implement UCC. It was very clear that through the Directive Principles of State Policy, the stage should be set for the implementation of UCC.
You will see that B.N. Rau who was advisor to the Drafting Committee, in the year 1950, proposed the Hindu Code Bill. The Hindu Code Bill was viewed as a very progressive law at that time. The main reason for this was that it was stated that through this Bill, we are serving the interests of the Hindu women. If you look at the circumstances of that time, then there was some resentment against the codification of Hindu law. In 1950, it came in the form of one codified bill. But the pressure was such that it was divided into different parts. Marriage Act, Adoption and Maintenance were all made separate. The resentment was there because some felt like only the Hindu community was targeted. Now this law has evolved over the years and is still being evolved by the Supreme Court and Parliament also.
If you see at present, most of the religious laws have become codified. The Christian law, the Parsi law are all largely codified. The one majority religion that has been left behind is Islamic law. Muslims are the largest minority in India. Their total population is somewhere around 16 per cent of the entire population, out of which 50 per cent of it may be Muslim women. Now the issue that has been going on is that the women belonging to different communities are going to be governed according to their personal laws and there is no uniformity. Because there is no uniformity, some women are in extremely disadvantageous position and some are at extremely advantageous position. So, you are going to create a discrimination between woman and woman only on the basis of religion.
We need to remember that the Shariah was enacted in the year 1937 when Constitution was not there. But when the Hindu Law was codified, at that point of time, Constitution was there. So, in the laws that were enacted after independence, it was ensured that there was no violation of the fundamental rights. But in the Shariah Act of 1937, though it was a codified law, but it is not according to the spirit of the Constitution, because maybe at that time there was no Constitution.
We always say that everything should be read from the perspective of the Constitution. So, we need to understand uniform civil code also from a constitutional perspective. For this, the first thing is that the Constitution begins with the Preamble which says, ‘We the People of India...’ So, whatever has been kept within the Constitution and in the Preamble, that is the collective responsibility of each and every citizen of this country. It starts with sovereignty and ends at fraternity. The term, secular is also used in between. Liberty, equality and justice have also been mentioned. There is one important aspect that has been negated. Definitely, India is a country of cultural diversity and we have unified in the name of nationalism and nation. Nation unites us but we still live in a diversified manner. We must not forget that the Britishers promoted our diversity in the form of identity and ultimately, we were divided into two nations.
When you see the Constituent Assembly debates, you can see that Dr B.R. Ambedkar and a number of Muslim members supported the idea that there should be nothing in the Constitution that will lead to identity creation. It was agreed that there should be no promotion of religion that can lead to further divisions. That is why when we speak of sovereignty and fraternity, it means that our diversity should remain but promotion of identities at least in the name of religion and caste should not be there. So, fraternity is something which is extremely fundamental. And for it to remain as it is, it is important that our religious communities should not be promoted by the state in the name of religion. This practice is against sovereignty, fraternity and is also against the unity of the nation. This is a very important point.
The second important point is about Article 14 which guarantees equal protection of laws. But the problem in personal laws is that they are not equally protected. They are a number of legislations which should have been equally applicable to all but few of them are not covered. For example, there is Dowry Prohibition Act, POSCO, Child Marriage Prohibition Act etc. The problem with Islamic laws is that marriage is permissible at the age of puberty. Now, puberty can happen at the age of 12 or 13. There have been number of cases from Hyderabad where children are being married to men in their 50s from Saudi Arabia. These children are in traveller marriages. This means that they will be in that marriage till the men are in India and once they leave, the alliance is broken. This amounts to violation under POSCO Act. POSCO Act clearly states that you cannot indulge in any sexual activities with a minor. But using personal laws, they claim that such marriages are valid. Think of the way in which children belonging to a particular community has been ousted from neutral legislation. It is important to give those children equal protection of law. The next question that needs to be asked is what happens to the right to life of such children? What happens to the right to dignity of women who are made to practice halala to remarry their former husbands?
I do not have any fake intentions for using the examples from Islamic law. This is because the personal laws of all other communities are largely similar with only minor differences. It is Muslim women who are kept out of secular protection in a big way. When Article 14 and Article 15 of our Constitution talks about equality and giving special protection to women, is it possible to leave out 50 per cent of India’s minority population who are crores in number? Can the country forge ahead this way? The next important question is if any community insists that they want to be in their regressive approach, should we change them? It is important to note here that progressiveness or progressive thought is inculcated in the spirit of the Constitution. Anything which is regressive in nature even if it is acceptable by the majority should not sustain in the same way because it is against the fundamental philosophy of the Constitution.
So, if you look at UCC in totality, then at its epicentre is the discrimination against women, right to equality, gender justice and obviously, up to a certain extent, right to the choice of a woman. Because if you are going to marry a girl at a very young age, at the age of 12 or 13, she doesn’t have any choice. Because of these things - the issue of constitutional morality, equality, right to life, dignity – each and every aspect of women will be covered in the UCC.
When we look at the global scenario, there is another important point that needs to be discussed. What is the situation in other nations? Pakistan was formed in 1947 and by 1961, they had codified their Islamic law and adopted it. Bangladesh, Syria. Iraq have codified laws. Majority of the Muslim nations have their own codified laws. Here, you will notice that in nations having codified laws, the minimum age of marriage is fixed. In Pakistan and Bangladesh, it is 18 years for girls. In majority of the Muslim nations, either 16 or 18 years is prescribed for girls. For boys, it is either 18 or 21 years. But in India, there is no such minimum prescribed age for Muslim boy and Muslim girl. I know that there are several cases pending before different high courts where they have said that if a girl gets married at the age of 13 or 15, that marriage is valid as Islamic law only requires the girl to be in the age of puberty.
Now the question is, can one nation have different laws? Can one community get religious immunity on this issue? By doing so, aren’t we making it clear that there are different legislations for different communities? It is a very thoughtful situation. In this, an escape route was carved out deliberately. If you look at the arguments of the All India Muslim Personal Law Board, they have said that in Article 13, sub-clause 3, the term ‘law’ used does not include personal law. They are saying that if we are violating the right to equality of women, then that cannot be challenged before the court. The unfortunate situation here is that there is some inconsistency in the judgement of the Supreme Court also. In some cases, the Supreme Court has said that personal laws are not include in Article 13 and if through them women’s rights are being violated, then that cannot be reviewed by the judiciary. But in the recent case where Supreme Court declared triple talaq unconstitutional, there the court passed a judgement on personal laws. So, you cannot say that through the personal laws, you can violate the right of any person belonging to any community. This is a very positive development.
Now, if we look at the approach of the Supreme Court in the earlier cases, we can see that the Supreme Court has followed a consistent approach. In the Shah Bano case, in the issue of maintenance, then according to the Muslim law, the woman gets maintenance only up to the period of iddat. When you compare this with the rights of other communities, then you can see that women in the same position have so many rights. There is Section 125 of CrPC. Hindu community has given a number of rights to its women. In Shah Bano case, she was in her late 60s when she was divorced. Where would she have gone in that age? So be it Shah Bano’s case, Sarla Mudgal’s case or Lily Thomas’s case or even the Shayara Bano case, Supreme Court has taken a consistent approach. The court has asked the government why is there a delay in implementing UCC.

So, there is no problem in the approach of the Supreme Court and it has continuously supported UCC. But All India Muslim Personal Law Board and many other Muslim organisations have maintained that it is an interference in their right to religion. But where is the interference? As I mentioned earlier, in countries like Turkey, Pakistan, Bangladesh, Tunisia etc., Islamic laws have been codified. And when people belonging to Muslim countries live in other nations like Germany, France, USA, Brazil, Canada, Switzerland, Australia etc., they follow the civil code of the respective countries and not their personal laws. When we talk about religious freedom, it talks about those rights which are so intact with your religion that it cannot be compromised with. Article 25 is not an absolute fundamental right, it is subject to certain restrictions. It includes public order, health, morality, and also other provisions of the Indian Constitution which also includes Articles 14, 15 and 21. It means that if Article 25 goes against any of these provisions, the state can regulate the rights given. Personal laws are not part of religious freedom. How else could other nations have codified personal laws? Why then are the Muslims following civil law when they go to other countries? This means it is not an essential part of your religion.
The next important point when it comes to freedom of religion is that it governs the relationship between an individual and Almighty. Personal laws do not concern the relationship between an individual and Almighty. It is between two or more than two individuals. It can include the relationship between husband and wife; husband, wife and kids; parents and kids or even grandparents and kids. It talks about a family unit which has been often viewed through a patriarchal lens. So, it is wrong to say that there cannot be any interference or that it is unamendable. If that was the case, Islamic countries would not have amended these laws. If they cannot accept it in India, then India cannot be a more Islamic country than a pure Islamic country. So, this should not be considered as a maintainable argument.
Next, there are a lot of rumours that are being spread about UCC. It is being said that UCC will put an end to all the rituals and traditions. Sikh community fears that there will be changes in their wedding ceremony, Muslim community fears that their Nikkah will be replaced by Saptapadi and there are many more such confusion that are being created. UCC does not regulate the customs in a marriage. The customary practices will be followed as it is. There are certain practices which come under immorality and only that will be regulated. For example, age of marriage which is different for different communities. This is not according to the correct interpretation of law. Misinformation is being spread that one particular community’s traditions will be imposed on all. There is nothing like that. It only means that there will be similar rules. It will include marriage, divorce, adoption, succession, maintenance and inheritance.
When it comes to marriage, there should be no doubt that marriage in every religion will be governed according to the respective customs. The changes will be there in age of marriage, making the registration of marriage compulsory. When it comes to divorce, the rights of Hindu women are broader than Hindu men. But for Muslim women, they have no option of exit. So, when we make Divorce Act uniform, the same ground will be given to everyone. Even now, this happens in Special Marriage Act. But these provisions will be applicable, only if you register your marriage under Special Marriage Act. What is the harm in having a common divorce law for all communities? Look at the practice of khula in Islam where the wife will have to pay a consideration to the husband. Then there is the practice of halala. These are not according to the spirit of the Constitution. What can be witnessed here is a one-sided approach where the males have a lot of rights and the females do not. So, these will have to be brought to the level of gender equality using UCC.
When it comes to maintenance, the common argument among Muslims is that Section 125 of CrPC is not applicable to them. How will the Muslim women who have been deserted get maintenance? How will they be able to look after their kids? The Muslim laws do not protect them and our laws are not applicable to them. This is a very unfortunate situation in a democratic and secular country. So, in issues like maintenance, it is important to have uniformity. Adoption is also a similar issue. Adoption is not permitted in Islamic law but guardianship is allowed. There are a lot of issues like this.
One good thing is that we have a role model which is of Goa that has a common civil code. It was enforced during the time of Portuguese rule and is still in force. It is equally applicable on the persons belonging to different religious communities. It is a lengthy law. Women has equal property rights there. If a common code can be there in Goa, why cannot it be enforced on other parts of the country? We need to ponder over this.
Definitely, we need to have a discussion over the implementation of UCC. And if there are any religions having any speciality that needs to be protected, we need to protect them as well. And then there are practices like sapinda marriages which will have to be prohibited. So, the degree to which practices need to be prohibited can be discussed keeping in view the religious traditions. Practices like incestuous marriage should be completely prohibited. There are restrictions in Special Marriage Act too. The important point is why should women not get equal rights when our Constitution says that everybody is equal before law. These are the points which are extremely important and relevant for all purposes. We need to have discussions on the topic.
It is worth noting that a lot has changed from Shah Bano case to Shayara Bano case. I was going through a survey which stated that 69 per cent of women belonging to the Muslim community want reforms in personal laws. In this, 80 per cent respondents belonged to the younger generation and they wanted reforms in Muslim law. This is the time for reforms and it should happen. Two women should not be discriminated just because they belong to different religions.
There are also rumours being spread about the rights of tribes and how UCC will have an impact on their rights. All these things are a myth. The chairperson of Parliamentary Committee, Mr Sushil Modi has already said that the rights of the tribal population will be considered separately. There are rumours floating around. But once the draft bill is tabled, things will become clearer.
I have given a general introduction and am ready to take questions.
Lekshmi Parameswaran
Thank you, Dr Singh for that insightful lecture and for touching upon so many important issues. As you rightly said, there have been divisions in the Indian society from the colonial times. Right now, women are at the receiving end of the injustices perpetrated by personal laws. We need to look at this issue from the perspective of the Constitution. Progressiveness is a part of our Constitution and we can no longer afford to have discriminatory laws. And as Dr Sharma had pointed out earlier, already 95 per cent of the laws in our country are uniform and a common civil code cannot be a farfetched goal. Now I will open the floor to questions.
Q&A Session
Shri Bhagwan Lal Soni, IPS (Retd.): In the last 75 years, we have addressed most of the issues that were raised in the Constituent Assembly. In many countries where sizeable population of Muslims are there, they are following the code of those countries. So, why not in India? In very simplified form, we should make people aware what it will cover and what it will not.
Shivaji Sarkar: I believe changing of codes is a humongous task. So, wouldn’t it be better to take issues one by one and address them? What Article 44 essentially says is state should go as per the convenience of the time. It is not a mandated provision. From my interactions with Muslim community, I could see that there is a consensus that there should be a reform in their laws because they realise that there are lots of anomalies in that. I feel it may be more fruitful to confine it to certain areas rather than making it wide and unmanageable.
Srinivasan: Is there any Supreme Court judgement on UCC? I was told that Guruji Golwalkar was against UCC. What is the stand of RSS on this issue?
Prof Hemant Sharma: What will be the socio-cultural impact if UCC is implemented? There won’t be any immediate psychological effects as UCC will have to be followed for a while before the psychological impact becomes known. And what about the minorities like Sikhs, Parsis, Buddhists, Jains etc. What impact will it have on them? The socio-cultural impact of this law will be seen in a year.
Dr Alok Sharma: Regarding RSS views on UCC, I think an organisation like RSS can never be against the progress and development of our nation.
As far as implementing the law on selective issues is concerned, the question is not about this at all. For many of the communities, laws have already been made progressive in nature. Problems are there with Christian law too. Women have to prove two grounds for divorce whereas men need only one. Such disparity exists. I believe that UCC should not test the custom. Dr Seema had mentioned sapinda. Those questions are there in every religion. For example, marriages cannot happen between certain relations. What we need to understand when it comes to UCC is that what are the legal consequences of a marriage. UCC needs to address only this. If a marriage takes place between a man and woman, the rituals do not matter. What is important in UCC is that the marriage will be monogamous, what are the rights of women in that marriage and what will be maintenance etc. If it reaches divorce, then what is the way to do it? Will the same grounds be applied to both men and women when it comes to cruelty, adultery etc. Then there is the issue of succession. If father, mother or spouse dies and their property is not willed, then will the wife or daughter get equal rights? Will a woman have rights to adopt a child? Can she be the natural guardian or not? UCC only looks at these basic issues because this is what discriminates against women. We will have to read all these issues together. Basically, UCC is about the consequences of any relationship.
We will have to look at this issue from two aspects. First is, the legal consequences of being a mother, daughter or wife. Second is to determine what our customs are. Every community is free to conduct their rituals. UCC is only about the consequences in case of any disputes.
Next question was about the psychological impact of UCC. I completely agree that the legal aspect of the law is completely different from its psychological aspect. There were lot of concerns when triple talaq law came into force. But now when we look at a recent survey, we can see that the cases of triple talaq have been reduced by 80 per cent. When a law is enacted, there comes fear. Women eventually start benefitting from these laws and people slowly start accepting the change. Look at the Hindu Code Bill. Dr Ambedkar had resigned from the ministry due to this. And he had a huge role to play in ensuring the rights of the women. Hindu Code Bill took so much time because it was not at all codified. It was a difficult path to replace polygamy with monogamy. But today, in the 21st century, a lot of things have already been established. So, I do not think it will take a long time for Muslim communities to accept the changes. It may be difficult for the Muslim men initially because they will lose their power. Muslim women are already in favour of a uniform civil code. So, I don’t think there will be any huge negative sociological or psychological impact. Rather, I feel we will be able to see positive developments in the first two to three years after its implementation.
Dr Seema Singh: There are a number of questions being asked as to why it is called uniform civil code. The prime minister has used the term, ‘common civil code.’ The problem here is that in Article 44 of our Constitution, uniform civil code is mentioned. So, if you want to change it, then you have to amend the Constitution. You also see the term uniform civil code being used in many judgements. What form it should take is a different issue. It is often being argued that UCC should come into effect only when society is ready. Some people will always have objections. It needs to be noted that we became independent in 1947 and in 2006, Sachar Committee’s report came which stated that Muslims are the most backward community in the country. The question that needs to be asked is whether there is a dearth of opportunities or is there a need to bring about a change in the mentality?
There are two things. One is reforms happen when society wants it. Second, society changes slowly once a law is enacted. The Supreme Court has spoken about uniform civil code in several of its judgements. Even in the Shayara Bano judgement, Justice Chandrachud has made the observation that UCC should be brought about. I believe there is a lot of fear surrounding this due to the rumours. I am certain exemptions will be created for various communities taking into account their religious practices. Without this, UCC cannot become a reality. If you see the Hindu codified law is not the law of Hindus. Several practices were taken from other religions and later codified as Hindu law. It was a modified law according to the spirit of the Constitution and progressiveness of the nation. There are many similarities between Indian Succession Act, Hindu Succession Act, Indian Divorce Act. Special Marriage Act, Christian Act, Parsi Act etc. But when compared to these acts, Shariah is still on a different footing.
Dr Alok Sharma: I would like to add one more point. When Hindu Code Bill was proposed, then a number of Hindu males opposed it. In the end, Dr Ambedkar had to resign. Nehru postponed the implementation of the bill. But once implemented, people started following it. If you look at the issue of divorce, then in Hindu religion there is no concept of it but the practise is now being seen. As far as following Sapinda and Mehr are concerned, it does not affect the legal rights in any way. The main emphasis is on what are the rights of a woman when she is a daughter, wife and mother. So, that kind of aspect should be taken into consideration uniformly. As far as the name is concerned, I don’t think there is any issue. It can be uniform civil code, common civil code or it can be anything. The main emphasis is to ensure equality to women.
In our neutral laws like Juvenile Justice Act, everyone has the right to adoption. The Domestic Violence Act gives the right to maintenance as well as residence to women. There is Section 125 CrPC which was questioned in the Shah Bano case. We already have neutral laws. The Muslim community has progressed in the last decades. They are aware of the laws that need to be there and they also know that it is easy to accept the laws once they come into force. I agree with Dr Singh that if a society has not changed even in 75 years, then we need to take the help of laws to bring about that change. There will be a transition period of two to three years after which everything will be settled. I believe all of us need to work towards this and ensure that UCC becomes a reality in the present times. Only then can the nation progress. When there is a uniform civil code across the world, then why should India alone face so many challenges to bring about reform?
Shri Durga Nand Jha: Problem with UCC is that it wants to remove the reasons which make Muslims backward. If Muslim community do not want to remove the reasons of backwardness, they cannot grow. When I was preparing the India Minority Report, I found that the backwardness of the Muslim community is basically the social backwardness of the community. The work participation rate of the Muslim women was very low. Literacy rate of Muslim women was also very low. So, overall performance of the Muslim community on development parameters was low. That is why, I recommended that if each government wants to develop Muslim community, they should focus on social aspects of the community.
So far as Sachar Committee is concerned, my opinion is that it is a misleading report. And mischievously because of that report, a ministry was created. That ministry is not removing the reasons for backwardness of the Muslim community. They are only managing the causes. I think UCC is very important and that the government should go ahead. One terminology that I had used to convey the mindset of Muslim community was ‘inclusive-exclusive paradox.’ Problem with the Muslim community is that they want to be included in everything offered by government but in certain areas, they want to be excluded. It is not possible. If you want to be inclusive on developmental parameters, you cannot be exclusive on other aspects. If you want to be inclusive, you have to be inclusive on all issues. Only then, can you develop and can you grow. That is my humble submission.
Dr Alok Sharma: I would like to say one thing. If we implement UCC, then definitely, social reforms will be done automatically.
Dr Rakesh Kumar Pandey: The way this issue is being circulated in social media looks like instead of a uniform civil code, what we will get is a uniform religious code. Religion is something different. This is basically uniform justice code. We need to spread this idea that no attempts will be made to make religious practices uniform. Only then can UCC become a reality.
Ram Niwas Jindal: There are many customs in Hindu religion also which are not common in North India versus South India or Northeast. In Meghalaya, the boy joins the society of the girl after marriage. Similarly in Karnataka and some parts of Tamil Nadu and Andra Pradesh, the daughter is married to the uncle and it is considered the best relationship in certain communities. So, let us not get carried away by the practices that are done in North India. And there is a clause in the law that any practice that is being followed from time immemorial will continue. The aim is only to bring the whole system under uniform civil code. In Delhi, a Hindu is required to register the marriage. If the marriage is not registered within the stipulated time, then there is a fine. But it is not happening in other religions. In Iraq, during the time of Saddam Hussein, there was a law that if a man divorces his wife, he has to leave the house immediately. Everything in the house will belong to the wife and children. So, different societies have different cultures. We need to have a system where issues like marriages, adoption etc, will be uniform but the customary laws will remain as they are.