This Article is written by Divyansh Samant, a First-year law student of Symbiosis Law School Noida

Introduction.

The concept behind UCC: Since the adoption of the Constitution in 1950, India recognized itself as a state with no official state religion. Article 44 of the Constitution which comes under the DPSP mentions that the state shall endeavour to enact a Uniform Civil Code (hereinafter referred to as the UCC) for citizens throughout the territory of India. This civil code, if implemented would encompass the personal laws of all religious groups relating to marriage, divorce, adoption, inheritance, etc. The UCC seeks to provide a uniform set of laws that governs civil aspects of a citizen’s life notwithstanding their religious beliefs or affiliations. The need for UCC stems from the fact that India being a socio-religious country has allowed people of diverse faiths like Hinduism, Islam, Christianity, Jainism, etc to make their own distinct set of personal laws which many times are found to be inconsistent with Constitutional provisions, pose barrier to inter-faith marriages and are also found to create difficulties in family matters.

Judicial Approach: The comprehensive approach of the Indian Judiciary in the recent past towards UCC has been both proactive and commendable. The judiciary propagated a uniform civil code on grounds of social justice, fair play, and national unification and yet at the same time has refrained from passing any order mandating the Government to implement UCC. In umpteen several Supreme Court Cases the bench of S.C. judges have supported the Uniform Civil Code and also called on the national Parliament to enact legislation on it.

For instance, the Constitution bench speaking through Justice Y.V. Chandrachud in Mohd. Ahmed Khan v. Shah Bano Begum observed:

It is a matter of regret that Article 44 of our constitution has remained a dead letter. It provides that the state shall endeavour to secure a uniform civil code for the citizens throughout the territory of India…..A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely belling the cat by making gratuitous concessions on this issue[1]. Also, in the same judgment, the Hon’ble Judge made the following recommendation about UCC to the government: It is the State that is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning[2].

Landmark Rulings: Absolute favour of UCC- •Mohd. Ahmad Khan v. Shah Bano Begum & Ors.[3] The brief facts of the case were that Shah Bano Begum the petitioner was driven out of the house by her husband Mohd. Ahmad Khan after 43 years of their marriage subsequently he married another woman. Hence, Bano sought for maintenance under Section 125 of the CrPC. After getting approved for a minimal amount of money as maintenance by the Civil Court she appealed to the M.P High Court which increased her alimony amount to a substantiate amount. However, her husband challenged the same in the S.C. As per Muslim law, Bano was only to be given a 3-month maintenance. However, S.C. ruled in her favour, declaring that Section 125 applies to all women regardless of their religion and that it supersedes personal laws. As mentioned earlier the Court opined the need to enact a Uniform Civil Code to promote social justice and also suggested the Parliament lay the foundation for a common civil code that would apply to persons of all faiths, hence ensuring uniformity and equity in the justice process.

“Justice to all is a far more satisfactory way of dispensing justice than justice from case to case” ~ CJ Y.V. Chandrachud.

•Sarla Mudgal and Ors. v. Union of India[4]. President of Kalyani (an organization working for the welfare of families in need and women) Sarla Mudgal the petitioner in this case along with four other petitioners filed a writ petition under Article 32 in S.C. wherein a series of cases were brought forth before the Court in which husbands of a married woman to marry a second time had converted to Islam as under Muslim personal law bigamy is permissible.

In its verdict, the Supreme Court reiterated the crucial need for a UCC in the country. Justice Kuldip Singh asserted that the UCC was required for national integration. He urged the Muslim minority to give up their affirmation of the two-nation theory and accept reforms akin to the Hindus and other communities as bigamy is a punishable offense under their laws for the cause of “national unity and integration.” He further instructed the Government to file an affidavit that would mention the steps taken by the Government of India towards a UCC for its citizens. Justice Sahai the other Judge held per concurring -

Religious practices violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative both for the protection of the oppressed and the promotion of national unity and solidarity.[5].

•Shayara Bano v Union of India[6]. This case commonly referred to as the “triple talaq case” involved an old practice of triple talaq. The facts were that the petitioner having been married for 15 years was divorced by her husband unexpectedly and without any definite reason using triple talaq. As a result, Shayara Bano filed a writ petition in S.C. arguing that the practice of ‘talaq-e-biddat’ is unconstitutional as it infringes upon a woman’s fundamental rights under Articles 14,15 and 21. S.C. while deciding in the favour of the petitioner yet again restated the need for a UCC in the country however interestingly it separated UCC from the issue of human rights and stated that “triple talaq is a matter of human rights” and that it is to be dealt with separately. The verdict underscored an urgency to enact UCC legislation to address gender discrimination and bring about unity in marriage and divorce laws. To highlight the crucial role of a UCC the bench of judges also referred to the discussions of the Constituent Assembly after one of the counsels in the case brought them up in his submissions. The Court said that all the submissions made by some members of the Constituent Assembly about the exclusion of religious practices and personal laws from the ambit of a uniform civil code were rejected by the Constituent Assembly chair, For instance, Mr. Mahbood Ali Baig Sahib Bahadur, member of Constituent Assembly whose submission was subsequently repudiated said that- “My view of Article 35 is that the words "Civil Code" do not cover the strictly personal law of a citizen. The Civil Code covers laws of this kind: laws of property, transfer of property, the law of contract, law of evidence etc.”

Hence the S.C. concluded that- “All this leads to the clear understanding, that the Constitution requires the State to provide for a uniform civil code, to remedy and assuage, the maladies expressed in the submissions advanced by the learned Attorney General.”

Against an immediate UCC- •Pannalal Bansilal Pitti v State of Andhra Pradesh[7]. Bansilal the petitioner was the founder of a charitable religious institution located in Hyderabad and was a hereditary trustee of Raja Bahadur Sir Bansilal Motilal Charitable Trust founded by his father who donated Rs. 5,00,000 in 1933. Bansilal being entitled to nominate other trustees for proper management was efficiently maintaining and managing the institutions without any complaint. However, after the Andra Pradesh Charitable and Hindu Religious Institutions and Endowments Act,1966 he was made the Chairman of the respective trusts and thought the Act it was mandated that there would be a board of trustees with non-hereditary trustees as well. Hence the petitioner challenged the decision before the S.C. and alleged that it violated his rights under Articles 25 & 26 of the Constitution of India.[8]. The S.C. upheld the validity of the above-mentioned Act and disposed of the petition. The judgment posed the question of whether the State is required to make laws that are uniformly applicable to all religious or charitable institutions managed by people of all religions. The S.C. further acknowledged the fact that India is a pluralist society having diverse religious beliefs and tenets. The Court was not completely against uniformity in laws but cautioned that it must be a gradual progressive change towards bringing uniformity in personal laws rather than enacting them in one go which would be “counter-productive to the unity and integrity of the nation.”

Justice K. Ramaswamy held- “It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages”[9]. •Shabnam Hashmi v Union of India[10]. The petitioner in the case was an advocate with expertise in human rights and had adopted a young girl while her age was still small. She undertook this decision as the Juvenile Justice Act of 2000 which is a secular law permitted any person, irrespective of his religious beliefs, to adopt a child. However, according to Islamic Law does not equate an adopted child with a biological one. Thus, the petitioner approached S.C. pleading that she should be allowed to adopt under the JJ Act,2000, and the right to adopt and be adopted be declared as a fundamental right under Part III of the Constitution. S.C. allowed her to do so under the JJ Act of 2000(for it does not interfere with Muslim laws) but clarified that the right to adopt is not a fundamental right and that the legislature has the authority to confer it such a special status. It also reiterated its anxiety about overreaching its powers on the subject of UCC.

C.J. Ranjan Gogoi observed: Conflicting viewpoints prevailing between different communities, as of date, on the subject makes the vision contemplated by Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the Court is reminded of the anxiety expressed by it earlier about the necessity to maintain restraint[11].

Conclusion. There have been several instances where the Supreme Court of India through its judgments has endorsed a Uniform Civil Code in the country which would imply that the personal laws of all religions are unified into one so that only a single secular law applies to everyone, thus bringing efficiency in enforcing civil rights and helping in national integration. The vindication given by the S.C. in the Shah Bano and Sarla Mudgal cases expresses a dim view of the government’s inability to bring a Uniform Civil Code into being. However, these comments no matter how true and right they would be are not binding to the legislature to follow and as such do not amount to Court orders. In the best possible scenario, they only exert a certain moral and noble pressure on the Indian legislature towards enacting legislation of a Uniform Civil Code. On other occasions like in the cases of Pannalal Bansilal and Shabnam Hashmi the Court contended that the enactment of a UCC should be a deliberate and unhurried process as opposed to be expedient so that the best interests of the society are served. Also, it cautioned itself on overreaching its powers on the subject of UCC. The Supreme Court in 2015 through a bench headed by Justice Vikramjit Sen told the government through Solicitor General Ranjit Kumar- “If you want to have a uniform civil code have it, you want to follow the uniform civil code, follow it. But you must take a decision soon,”

REFERENCES-

1) Mohd. Ahmed Khan vs. Shah Bano Begum and Ors. MANU/SC/0194/1985 (SC, 23 April 1985) para 35 accessed 15 September 2024.

2)Mohd. Ahmad Khan vs. Shah Bano Begum AIR 1985 SC 945 accessed 16 September 2024.

3)Sarla Mudgal v. Union of India, (1995) 3 SCC 635 accessed 16 September 2024.

5)Shayara Bano v. Union of India, (2017) 9 SCC 1 accessed 17 September 2024.

6)Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498 accessed 17 September 2024.

7)Param Mansighka, ed by Tanvi Mahajan, ‘Pannalal Bansilal Patil v State of Andhra Pradesh’(Lawinsider.in,2022) https://www.lawinsider.in/tag/pannalal-bansilal-patil-vs-state-of-andhra-pradesh accessed 17 September 2024.

8)Shabnam Hashmi v. Union of India, (2014) 4 SCC accessed 17 September 2024.

Mohd. Ahmed Khan vs. Shah Bano Begum and Ors. MANU/SC/0194/1985 (SC, 23 April 1985) para 35.

[1] Mohd. Ahmed Khan vs. Shah Bano Begum and Ors. MANU/SC/0194/1985 (SC, 23 April 1985) para 35 accessed 15 September 2024.

[2] Ibid [35] (Y.V Chandrachud).

[3] Mohd. Ahmad Khan vs. Shah Bano Begum AIR 1985 SC 945 accessed 16 September 2024.

[4] Sarla Mudgal v. Union of India, (1995) 3 SCC 635 accessed 16 September 2024.

[5] Ibid para 45

[6] Shayara Bano v. Union of India, (2017) 9 SCC 1 accessed 17 September 2024.

[7] Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498 accessed 17 September 2024.

[8] Param Mansighka, ed by Tanvi Mahajan, ‘Pannalal Bansilal Patil v State of Andhra Pradesh’ (Lawinsider.in ,2022) https://www.lawinsider.in/tag/pannalal-bansilal-patil-vs-state-of-andhra-pradesh accessed 17 September 2024.

[9] Ibid. para 12 (J. K. Ramaswamy).

[10] Shabnam Hashmi v. Union of India, (2014) 4 SCC accessed 17 September 2024.

[11] Ibid. para 16 (Ranjan Gogoi C.J.).