Rev. Dr. Francis Assisi Almeida
6.2.The challenges in implementing the UCC:
6.2.1. Distortion of customs and traditions of India:
The primary question that haunts everyone is the format of UCC. If it is an amalgamation of personal laws retaining their present status, the question arises, what is the necessity of UCC despite having such a structure at present? Will it not be an additional burden or will it not become an impractical idea? If personal laws are thrashed to formulate a single code for individual issues like marriage, adoption, inheritance, divorce, etc. in common, the question would be, whose customs shall be taken into consideration while formulating the UCC.
Presently, there are personal laws guiding their own religious communities in different aspects like marriage, inheritance, adoption, guardianship, etc. These laws are in existence for a quite long duration based on their customs, personal beliefs and faith aspects. When a community was in the practice of such personal laws for a long duration, the government in the name of enacting a uniform civil code, cannot nullify them and do away with those practices deeply rooted in their culture, beliefs and faith.
Read:
Part I: Uniform Civil Code: A Mere Uniformity or Unitedness
Part II: Why the Sudden Interest in UCC Today
6.2.2. Imposition of Majoritarian Views:
The first point leads to the second aspect namely, the imposition of majority views. The minority communities will, certainly, have apprehension regarding the possibility of imposition of majority views on minority communities annihilating their customary practices imbibed in their personal laws, if UCC is implemented discarding the customary practices rooted in their respective religions. India is one of the largest democratic countries and is ruled by majoritarian community members but according to the provisions of the Constitution and international law, majoritarians are bound to respect the views of minority communities. Every personal law has something to do with the religious practices that followed for generations. They cannot impose their views and customs on the minorities in the name of UCC intending to eradicate the existing evils in the personal laws. Murdering the conscience of religious communities, UCC cannot be enforced. The majority must secure the confidence of the minority communities and protect the rights of the minorities according to the spirit of the Constitution.
6.2.3. Possibilities of rectification within the existing personal laws:
No doubt, every enactment will have loopholes to a certain extent and the government must set right the discrepancies in such laws and practices through rectifications in the existing laws. The courts, often, have come out saying that they find it difficult to decide certain cases where two religious people are involved in marriage cases to decide about their specific rights due to differences in their personal laws. In such cases either provisions may be made under special laws to that effect or amendments can be initiated for the existing personal laws without destroying them. Further, if there are any discriminations meted especially to women within the personal laws, they can be rectified by making amendments to them rather than interfering and eliminating the existing provisions of law.
The Parliament in the past took the suggestions given by various Law Commissions and rectified certain discrepancies that prevailed in the existing enactments. Some of them are the triple talaq or talaq-ul-biddat, the recognition of women as coparceners in 2005, the recognition of diverse customs within the Hindu Marriage Act (Madras Amendment) 1967 (incorporating priest-less marriages among many others), an amendment to Christian marriage and divorce laws in 2001 (where adultery coupled with cruelty considered to be ground for women to claim divorce but due to its amendment the women are at par with men to claim divorce under the adultery alone), an amendment was made to the Indian Succession Act regarding the probation of wills, and amendments were brought to the Hindu Adoption and Maintenance Act of 1956 and the Guardians and Wards Act of 1890.
6.2.4. Enactment of a Special Law:
If the government or the Centre finds some real difficulties within the personal laws and especially if the courts find any difficulties in settling special cases, the government, instead of enacting a UCC, can make special provisions for such exceptional cases without harming the personal laws. If there are any discriminations found in the personal laws about women, they can be rectified and set right under the special law and further, the special law can override the personal laws in such particular issues. The adoption law under the Hindu Adoption Act applies to Hindus but the State under Juvenile Justice Act has made special provisions for adoption to others besides Hindus. Further, Article 15 (5) of the Indian Constitution provides ample opportunities to enact laws to protect the rights of women. To give an instance, the Registration of Births and Death Register can be amended to include compulsory registration of marriages to protect the rights of minors or the age of consent can be fixed and made compulsory under criminal Acts to refrain from contacting marriages below the age of consent, provisions for property rights to women in the husband’s property in the wake of their divorce, etc.
6.2.5. The death blow to the rights of Tribal and Specially recognized groups:
Provisions have been made for tribal community members and other special groups in different parts of the country to protect their rights. In the event of enactment of UCC, the rights of those specially recognized groups will lose their rights and their special status shall be withdrawn. If the government makes any special provisions under the UCC to retain the status of those tribal and specially recognized community members, it would be nothing but additional provisions and the formulation of UCC will be a misnomer.
6.2.6. Consent of the communities in question:
The Constituent Assembly upheld the arguments advanced by the Communities who had their personal laws and assurance was given to them that while enacting a UCC, the consent of the communities in question shall be taken into consideration. Based on the argument, the provision under Article 35 (renumbered as Article 44) is inserted within the Constitution. So unless and until the consent of the community in question is obtained, it may not be possible to enact a UCC. At present, providing a questionnaire and demanding the communities who have their personal laws in question to give their assent within 30 days (short notice) goes against the principle of audi alteram partem.
6.2.7. Fundamental Rights cannot be overridden by non-justiciable principles:
Religious practices are protected under the Fundamental Rights guaranteed under Articles 25 to 28 of the Constitution. When the Constitution guarantees such rights, the State has an obligation and right to annihilate the inequality under Article 14 of the Constitution by setting right the existing personal laws through rectifications but it cannot override the Fundamental Rights guaranteed under the Constitution of India.
6.2.8. The difference between the communities is warranted under Democracy:
The mere difference between various religious communities in their practice will not amount to discrimination.
India being one of the major multi-religious and multi-linguistic democratic countries, need to respect the uniqueness of each community by protecting their practices. Undoubtedly, the religious identity of each community is important but at the same time, it has a bounden duty to restrict discriminatory practices implied in them. The government, though eager to interfere in the personal laws of the communities, shows its slackness in formulating protective discriminatory laws that applies to the government, namely, an enactment on equal representation of women in the legislature which is pending for years together.
7. Conclusion:
To implement the UCC, the government obliged to obtain the assent of the communities in question and must be drafted keeping in mind the diversity of Indian culture and traditions without harming the sentiments of religious communities who practice their personal laws enacted as per their customs, traditions and religious beliefs. The proposed idea of UCC, while its insertion in the Constitution, was intended not to gain political mileage by any political parties but to enact it with the intention of gaining true national integrity, eradication of gender inequalities and growth of the nation. If such intentions are exemplified in the formulation of the UCC, the real growth of the communities may take place. To do so, the government must take every community into confidence and try to enact the UCC without harming any religious practices, customs and beliefs.
Finally, the question remains unanswered at this stage, whether UCC includes the personal laws of every community keeping their substantial provisions existing at present and rectifying discrimination within them or each code for all the communities in respect of marriages, inheritance, adoptions, divorces, etc. To conclude, secularism, undoubtedly, is not contradictory to plurality but it is part and parcel of democracy.
References
Constituent Assembly Debates, Official Report, Reprinted By Lok Sabha Secretariat, (New Delhi, Sixth
Reprint, 2014)
21st Law Commission’s Report on the “Reform of Family Law”
ABC v. State (NCT of Delhi) on 6 July 2015 (2015 SCC Online SC 609)
Danial Latifi & Anr v. Union of India. (2001) 7 SCC 740
Mohd. Ahmed Khan v. Shah Bano Begum and Ors. AIR 1985 SC 945
Smt. Sarla Mudgal, President … v. Union of India & Ors. AIR 1995 SC 1531
T.M.A Pai Foundation v. State of Karnataka and Ors. (2002) 8 SCC 481.
John Vallamattom & Anr v. Union of India on 21 July 2003