What is a “Uniform Civil Code”?
Uniform Civil Code is a term, which has originated from the concept of a
Civil Law Code. It envisages administering the same set of secular
civil laws to govern different people belonging to different religions
and regions. This supersedes the right of citizens to subject themselves
to different personal laws based on their religion or ethnicity. The
common areas covered by a civil code include:
• personal status
• rights related to acquisition and administration of property
• marriage, divorce and adoption
Usage of this term is prevalent in India where the Constitution of India lays down the administration of a uniform civil code for its citizens as a Directive Principle, but has not been implemented until now.
In a major development, the Supreme Court of India on 23 July 2003
regretted the non-implementation of a Uniform Civil Code while hearing a
petition pertaining to the Indian Succession Act. Delivering its
verdict, a three-judge bench regretted that Article 44 of the
Constitution had not been given effect to even after over 50 years of
independence.
[Article 44, under the Directive Principles of State Policy, says -
The State shall Endeavour to secure for the citizens a uniform civil
code throughout the territory of India.]
The bench, comprising Chief Justice V N Khare, Justice S B Sinha and
Justice Dr A R Lakshmanan, was hearing a petition challenging section
118 of the Indian Succession Act, 1925, which prevents Christians from
bequeathing property for religious and charitable purposes. "We find
that section 118 of the Act being unreasonable is arbitrary and
discriminatory and, therefore, violative of Article 14 of the
Constitution," Justice Khare said.
[Article 14: Equality before law - The State shall not deny to any
person equality before the law or the equal protection of the laws
within the territory of India.]
"We would like to state that Article 44 provides that the State shall
endeavour to secure for the citizens a Uniform Civil Code throughout the
territory of India," Justice Khare said. "It is a matter of regret that
Article 44 of the Constitution has not been given effect to. Parliament
is still to step in and frame a common civil code in the country. A
common civil code will help the cause of national integration by
removing the contradictions based on ideologies." "For the reasons
aforementioned, Section 118 of the Indian Succession Act is declared
unconstitutional being violative of Article 14 of the Constitution of
India," Justice Khare said. Justice S B Sinha and Justice A R Lakshmanan
also passed separate orders agreeing with Chief Justice V N Khare.
Justice Sinha said that the provision in question was enacted to prevent
persons from making an ill-considered deathbed bequest.
"The objective behind the said legislation was, therefore, to protect
the section of illiterate or semi literate persons who used to blindly
follow the preachers of religion.Such a purpose has lost all
significance with the passage of time," he wrote in his order.
The fact remains that the country of India is a Democracy; based on the ‘will of the people’.
Under this very principle; the will of 80.5% of the Hindu population
should prevail in the functioning of its Government and should influence
the Laws of the Land, which should be based on and derived from early
translations of Sanskrit texts known as Dharmaśāstra, the treatises
(śāstra) on religious and legal duty (dharma). Dharmaśāstra contains
what may be called “jurisprudence”, i.e. a theoretical reflection upon
practical law, but not a statement of the law of the land as such.
Another sense of Hindu law, then, is the legal system described and
imagined in Dharmaśāstra texts.
In reality, the current legal system is based partially on the Common
Law concept. Partially, because in India; civil matters are still
subject to the Religion based laws for each community, specially the
Islamic, Christian and Parsee communities.
Common law originally developed under the inquisitorial system in
England during the 12th and 13th centuries, as the collective judicial
decisions that were based in tradition, custom and precedent. The form
of reasoning used in common law is known as casuistry or case-based
reasoning. The common law, as applied in civil cases (as distinct from
criminal cases), was devised as a means of compensating someone for
wrongful acts known as torts, including both intentional torts and torts
caused by negligence, and as developing the body of law recognizing and
regulating contracts.
The use of religion based laws contradict the very principles of the
Constitution; which assures the citizens of Hindustan; “Justice,
Equality and Liberty”. How can the citizens be equal if their
lives are subject to different religion based laws? How can there be
equality, when many religious laws discriminate against women?
The Constitution of India is supposed to be the ‘Supreme Law of India’;
yet it is always made inferior to the religious laws of the minority
communities. It is time that the Constitutional Law is effectively
made the only and supreme law in India and all religious based laws are
declared illegal in India. This can only be achieved by implementing the Uniform Civil Code.
Minorities who do not agree to the Uniform Civil Code have the choice
and the freedom to leave the country of India and find other countries
who laws they agree with for their lifestyles.
India will guarantee freedom of speech, thought and action; and also of the freedom after speech, thought and action; for every person inside the Republic.
