Updated: Aug 7, 2020
Author- Antra Murkute pursuing LL. B from Bharati Vidyapeeth University, New Delhi
WHAT IS UNIFORM CIVIL CODE?
Uniform civil code is one law for the entire country, that's applicable to all or any religious communities in their personal business like property, marriage, divorce, inheritance, adoption etc. article 44 of constitution of India states that the state shall aim to make a consistent Civil Code for the citizens of the country.
Article 44 is directive principle of state and as consistent with Article 37 of the Constitution aren't enforceable be the court, but any principle laid down in pursuance of this are fundamentally governing. While Article 44 uses the words “state shall endeavour”, other Articles under ‘Directive Principles’ use words like “in particular strive”, “shall especially direct its policy”; “shall be obligation of the state” etc. Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44. All this suggests that the duty of the state is bigger in other directive principles than in Article 44.
FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES-
Fundamental principles, little question vital. The supreme court within the case of Minerva Mills (1980) has held “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles). to offer absolute primacy to at least one over the opposite is to disturb the harmony of the Constitution”.
Article 31 inserted by way of 42nd Amendment of constitution in 1976, lays down that any law made in pursuance of any directive principle shall not be challenged or held violative on basis that it's not in accordance with the elemental rights under article 14 and 19. Hence the aim of legislature here is to harmoniously construct the provisions of directive principles and fundamental rights.
UNIFORM CIVIL CODE AND CIVIL MATTERS-
Indian laws do follow a consistent code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of products Act, Transfer of Property Act, Partnership Act, Evidence Act etc. States, however, have made many amendments and thus in certain matters, there's diversity even under these secular civil laws. Recently, several states refused to be governed by the uniform automobiles Act, 2019.
If the framers of the Constitution had intended to possess a consistent Civil Code, they might have given exclusive jurisdiction to Parliament in respect of private laws, by including this subject within the Union List. But “personal laws” are mentioned within the Concurrent List. Last year, the Law Commission concluded that a consistent Civil Code is neither feasible nor desirable.
UNIFORM CIVIL CODE AND PRIVATE LAWS-
Every religious community have their own personal laws, which governs every member of that community. Hindus follow their own personal laws like Hindu Marriage Act, Hindu Adoption and Maintenance Act , Hindu Succession Act, whereas Muslims follow the Mohammeden Law and Christians and Parsi too have their own laws. In some regions, even Portuguese and French laws are followed.
In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments. The Shariat Act of 1937 was extended to J&K a couple of years ago but has now been repealed. Muslims of Kashmir were thus governed by a customary law, which in some ways was discrepant with Muslim Personal Law within the remainder of the country and was, in fact, closer to Hindu law. Even on registration of marriage among Muslims, laws differ from place to put. it had been compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
In the Northeast, there are quite 200 tribes with their own varied customary laws. The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram. Even reformed Hindu law, in spite of codification, protects customary practices.
India features a unique blend of codified personal laws of Hindus, Muslims, Christians, Parsis. There exists no uniform family-related law during a single written record for all Indians which is suitable to all or any religious communities who co-exist in India. However, a majority of them believe that Uniform Civil Code is certainly desirable and would go an extended way in strengthening and consolidating the Indian nationhood. The differences of opinion are on its timing and therefore the way it should be realized.
Instead of using it as an emotive issue to realize political advantage, political and intellectual leaders should attempt to evolve a consensus. The question isn't of minority protection, or maybe of national unity, it's simply one among treating each human person with dignity, something which personal laws have thus far did not do.