LOK SABHA

SECRETARY GENERAL: YAHVEE SADH

CHAIR: ANUJ AGRAWAL
 LOK SABHA

AGENDA: DISCUSSION ON IMPLEMENTATION OF

UNIFORM CIVIL CODE (UCC)
 Letter From the Executive Board

Greetings Representatives!

It gives us immense pleasure to welcome you all at the LOK SABHA which is to be
simulated at KASIGA SCHOOL MUN.

We welcome and congratulate you all on being a part of this committee. We look forward to
discussions on forming future policies for the nation on the said agenda using political
intellect.

Kindly note, we are not looking statements that would be a copy paste of what the
leader/portfolio you are representing have already stated; instead, we seek an
understanding of the issue from you, while knowing and understanding your impending
political and ideological limitations as well as an understanding of the immediate and long-
term consequences of your statements, actions and solutions.

Your political identity is an integral part of the purpose of the committee, and we look forward
to your portfolio representation.

This Introductory guide is as abstract as possible and would just give you a basic
perspective on what you can expect from the committee and areas in which your research
should be focused at this given point in time. Given, the political nature of this committee,
your presence of mind and politico-analytical aptitude is something which we as the
executive board would be looking to test. Kindly do not limit your research to the areas
highlighted further but ensure that you logically deduce and push your research to areas
associated with the issues mentioned.

This background guide should be used as an introductory guide only, no reference to be

made from the same. Neither this BG should be used as a source to prove statistical data.

Looking forward to an outstanding Debate!

We hope that we all learn something amidst the fierce competition during this conference.
Please feel free to contact the executive board regarding any queries.
loksabha.kasmun@kasigaschool.com

Warm Regards
The Executive Board
Lok Sabha
 BACKGROUND GUIDE
LOK SABHA
About the Agenda:

What is a Uniform Civil Code?

Uniform Civil Code is a term generally used to refer to the proposal to replace the personal
laws based on scriptures and practices of each major religious community in India with a
common set governing every citizen. As of now, these personal laws still apply in a number
of fields, including marriage, inheritance, divorce, adoption, and maintenance.

Personal Law through British Rule

The East India Company established the Hastings Plan in 1772 to create a system of civil
and criminal courts charged with the duty to see that the “native norms' ', as interpreted by
maulvis and pandits, were applied as the law. The key motive for this was seen as not
wanting to anger a population who it sought to control with minimum effort and expenditure.
Therefore, the British refrained from intervention in the field of personal law as far as
possible.

However, over time, there was a substantial shift in policy. With a view to achieving
comprehensive consolidation and codification of Indian Laws, the Government of India Act of
1833 (otherwise known as the Charter Act or Saint Helena Act) was passed by parliament,
establishing- among many other things All-India Legislature. The First Law Commission
submitted the “Lex Loci Report” in 1840 suggesting that the substantive law of England
should be declared as lex loci (law of the land) applicable to all excluding Hindus and
Muslims living in mofussil areas (outside the EIC capitals of Bombay, Calcutta, and Madras).

The Indian Penal Code was enacted in 1860, the Evidence and Contract Acts in 1872, each-
along with many others- based on principles of English Common Law. There was, however,
no attempt to address personal law uniformly. The personal laws involved inheritance,
succession, marriage and religious ceremonies. The public sphere was governed by the
British and Anglo-Indian law in terms of crime, land relations, laws of contract and evidence
—all this applied equally to every citizen irrespective of religion.

There were repeated cases of confusion in the acceptability of religious personal law due to
the presence of multiple conflicting scriptures as well as a conflict between practice and
scriptures that were applicable to a particular community. For example, Shudras allowed
widow remarriage, in stark contrast to scriptural Hindu law. Gradually the recognition of
customary law increased mostly due to popular demand.

Religious personal laws, unsurprisingly, discriminated against women depriving them of

inheritance, remarriage, and divorce. The British, along with a number of social reformers,
began to create legislation to secularise Hindu practices. The Indian Majority Act 1875 fixed
eighteen as the age of majority the Act applied to Hindus in all matters except marriage,
divorce and adoption. Many other Acts such as the Hindu Inheritance (Removal of
Disabilities) Act 1928; the Hindu Law of Inheritance (Amendment) Act 1929; Child Marriage
Act of 1929; Hindu Women's Right to Property 1937 etc. were enacted under British rule.

There was far less interference by the British in the realm of Muslim personal law, largely
due to a fear of upsetting the fundamentalist section of the population. These included the
Mussalman Waqf Validating Act, 1913; the Muslim Personal Law (Shariat) Application Act of
1937; and the Dissolution of Muslim Marriage Act 1939- the general trend being to restore
the orthodox Muslim doctrines.

Therefore, on the whole, there was little interference in personal law over the course of
British rule in India- Muslim and Hindu law in particular were largely immune to intervention.
Changes in Hindu law was to reduce perceived injustice, while those in Muslim law were to
provide clarity and reinforce the emphasis on Islamic scriptures over customary law. Even as
the British grew more powerful and consolidated their position, they allowed the systems of
religious personal law to exist as they always had, albeit with greater codification.

Constitutional Debate

When the Constituent Assembly first met, there was a strong debate about whether or not to
create a Uniform Civil Code. It was proposed as Article 35 of the Draft Constitution- the
strongest, most vocal opposition was from Muslim leaders. Mohammad Ismail, member of
the Indian Union Muslim League, pushed for an addition that provided that “any group,
section or community of people shall not be obliged to give up its own personal law in case it
has such a law”. Nazir Ahmed argued that the very concept of Uniform Civil Code clashed
with the religious and cultural freedom guaranteed to every citizen.

A number of Hindu members of parliament expressed their opinions to the contrary. KM

Munshi argued that “Religion must be restricted to spheres which legitimately belong to
religion, and the rest of life must be regulated, unified and modified in such a manner that we
may evolve, as early as possible into a strong and consolidated nation.” He also added that
a Uniform Civil Code could be enacted by the state even in the absence of Article 35, as
Article 25 of the Constitution (guaranteeing religious freedom) also gave the state the power
to secularise practices.

The Assembly, however, finally passed Article 44 in the Directive Principles of the
Constitution. The Directive Principles are not conventional laws in the sense that they are
not enforceable by any court but are seen as fundamental in the governance of the country,
making it the duty of the state to apply these principles while making laws to ensure a just
society. Article 44 reads “The State shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India.”

Muslim leaders were particularly worried about this, seeing it as dangerous to their
freedoms in the future as a minority. B.R. Ambedkar, addressing their concerns, said that
this created a “power” and not an “obligation”. He added that “Sovereignty is always limited,
no matter even if you assert that it is unlimited, because sovereignty in the exercise of power
must reconcile itself to the sentiments of different communities.”
Prominent women leaders criticised the move, seeing it as insufficient. By making it a
Directive Principle rather than a law in itself, it seemed to them that the state was leaving the
state with an option not to enforce it at all. Academic Paula Banerjee declared that the
drafters of the Constitution had made sure the issue would “never be addressed”, while
Aparna Mehta wrote in retrospect that the “failure of the Indian state to provide a uniform civil
code, consistent with its democratic secular and socialist declarations, further illustrates the
modern state's accommodation of the traditional interests of a patriarchal society”.

Constitutional and Legal Provisions

B.R. Ambedkar added to the Muslim community that they “need not read too much” into
Article 44 and that it would only apply to those who “consented to be governed by it.” The
Constitution does, though, have several clauses pertaining to religious freedoms. Articles 25
(1), 26, and 29 are frequently used as arguments against the state interfering in religious
practices through a Uniform Civil Code.

Furthermore, Article 372 ensures the application of "all the law in force in the territory of
India immediately before" its commencement. The Muslim Personal Law {Shariat)
Application Act of 1937 is technically a law in force before the commencement of the
Constitution of India, and this is used by Muslims as a base for certain practices relating to
marriage, divorce, and maintenance. This is because the law states that in a case where
both the parties are Muslims the rule for decision shall be Muslim Law. On the contrary,
however, Article 13 (1) states that “All laws in force in the territory of India immediately
before the commencement of this Constitution, insofar as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void”. This “Part” refers
to fundamental rights, so therefore law legitimising practices such as- say, triple talaq or
Hindu inheritance- would be in conflict with rights such as those prescribed in 15 (2).

Furthermore, a number of subjects included in personal law are mentioned in List III (the
concurrent list) of Schedule VII of the Constitution- therefore both central and state
governments have some power in those fields. Entry five of the List reads “Marriage and
divorce; infants and minors; adoption; wills, intestacy and succession; joint family and
partition; all matters in respect of which parties in judicial proceedings were immediately
before the commencement of this Constitution subject to their personal law”. This is used to
reinforce the notion that the state does have the right to intervene. Therefore, on the whole,
experts argue that the Constitution does give the state the right to enforce a Uniform Civil
Code. It also puts the responsibility in the form of Directive Principles and fundamental rights
that need to be protected, but whether rights on the freedom of worship and religion can be
sacrificed in the prevention of discrimination and inequality is a still-raging question that
lacks a clear answer.

Notable Cases
The Supreme Court for the first time, directed the Parliament to frame a Uniform Civil Code
in the year 1985, in the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly
known as the Shah Bano case, in this case, a penurious Muslim women claimed for
maintenance from her husband under Section 125 of the Code of Criminal Procedure after
she was given triple talaq from him. The Supreme Court held that the Muslim woman have a
right to get maintenance from her husband under Section 125. The Court also held that
Article 44 of the Constitution has remained a dead letter. The then Chief Justice of India Y.
V. Chandrachud observed that, "A common civil code will help the cause of national
integration by removing disparate loyalties to law which have conflicting ideologies”.

After this decision, nationwide discussions, meetings, and agitation were held. The then
Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim
Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim
woman for maintenance under Section 125 of the Code of criminal Procedure. The
explanation given for implementing this Act was that the Supreme Court had merely made
an observation for enacting the UCC; not binding on the government or the Parliament and
that there should be no interference with the personal laws unless the demand comes from
within.

In Mary Roy v. State of Kerala, the question argued before the Supreme Court was that
certain provisions of the Travancore Christian Succession Act, 1916, were unconstitutional
under Article 14.

Under these provisions, on the death of an intestate, his widow was entitled to have only a
life interest terminable at her death or remarriage and his daughter. It was also argued that
the Travancore Act had been superseded by the Indian Succession Act, 1925. The Supreme
Court avoided examining the question whether gender inequality in matters of succession
and inheritance violated Art.14, but, nevertheless, ruled that the Travancore Act had been
superseded by the Indian Succession Act Mary Roy has been characterised as a
“momentous" decision in the direction of ensuring gender equality in the matter of
succession.

Finally, the Supreme Court has issued a directive to the Union of India in Sarla Mudgal v.
Union of India to “endeavour" framing a Uniform Civil Code and report to it by August 1996
the steps taken. The Supreme Court opined that: "Those who preferred to remain in India
after the partition fully knew that the Indian leaders did not believe in two- nation or three
"nation theory and that in the Indian Republic there was to be only one nation- and no
community could claim to remain a separate entity on the basis of religion".

The SC’s comments on the Lily Thompson case are worth noting. The Court said that the
directives as detailed in Part IV of the Constitution are not enforceable in courts as they do
not create any justifiable rights in favour of any person. The Supreme Court has no power to
give directions for enforcement of the Directive Principles. Therefore, to allay all
apprehensions, it is reiterated that the Supreme Court had not issued any directions for the
codification of a Common Civil Code.
The Supreme Court's latest reminder to the government of its Constitutional obligations to
enact a UCC came in July 2003, when a Christian priest went to the Court challenging the
Constitutional validity of Section 118 of the Indian Succession Act. The priest from Kerala,
John Vallamatton filed a writ petition in the year 1997 stating the Section 118 of the said Act
was discriminatory against the Christians as it imposes unreasonable restrictions on their
donation of property for religious or charitable purpose by will. The bench is composed of
Chief justice of India V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshamanan struck
down the Section declaring it to be unconstitutional. Chief Justice Khari stated that, "We
would like to State that Article 44 provides that the State shall endeavour to secure for all
citizens a uniform civil code throughout the territory of India; it is a matter of great regret that
Article 44 of the Constitution has been given effect to. Parliament is still to step in for framing
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".

A few years ago, while hearing a case pertaining to whether a Christian has the right to
bequeath property to a charity, the court regretted the fact that the state had not yet
implemented a uniform civil code. This is not the first time that the apex court has expressed
itself in favour of a uniform civil code or taken a dim view of the government's and
legislature's inability to bring it into being. There have been other occasions — like during
the Shah Bano case and later in the Sarla Mudgal case — where too the apex court has
come out strongly in favour of the enactment of a uniform civil code. However, none of these
comments are binding on the executive or the legislature and do not amount to orders. At
best, they exert some moral pressure on the Indian state to move towards formulating a
uniform civil code. Thus, as seen above, the apex court has on several instances directed
the government to realise the Directive Principle enshrined in our Constitution and the
urgency to do so can be inferred from the same.

Recent Debate

The debate about a Uniform Civil Code was rekindled in 2014 when the BJP included its
adoption in their election manifesto. The Congress and a number of other parties have
opposed the BJP’s proposal, arguing that the version of a Code that the party wishes to
oppose is “communalized” and simply a way of restricting the freedom of Muslims to practise
their religion. Even parties traditionally supportive of a Uniform Civil Code have opposed the
BJP’s suggestion as they are of the opinion that it is inherently discriminatory in nature- the
All-India Muslim Personal Law Board accusing the government of attempting to sneak it in
under the garb of promoting gender equality through its opposition to triple talaq in the
Supreme Court. The BJP has rejected such claims and has declared its intent to go through
with its original plans.
Merits of a Uniform Civil Code

People belonging to different races, innumerable castes and religious beliefs showing no
similarity whatsoever live in the subcontinent of India. Fissiparous tendencies, separatist
attitudes, secessionist demands, divisive elements of casteism and communalism have not
therefore been uncommon.

A uniform civil code has been suggested as one of the steps to achieve national integration.
The code should apply to all irrespective of any differences in race, religion, sex or caste.
Marriage, divorce, succession, guardianship and adoption may come within the purview of
the code. Article 44 of the Constitution directs the state to endeavour to secure a uniform
civil code. The provisions of Article 44 are not justiciable, nevertheless Article 37 provides
that "they are fundamental in the governance of the country, and it shall be the duty of the
State to apply these principles in making laws”.

Though 70+ years have elapsed after attainment of independence no successful efforts
have been made by the state for securing uniform civil code. There is a glaring apathy and
lack of mindfulness on the part of the state to implement this constitutional mandate. The
tendency of the government to bring reforms solely on electoral considerations, is glaringly
revealed. Over the recent years, there have been several arguments raised for the need to
implement a Uniform Civil Code.

Firstly, proponents of a Uniform Civil Code argue that the Common Civil Code will bring all
the personal laws governing matters which includes: marriage, divorce, adoption,
inheritance, succession to property, adoption, guardianship and child custody under a single
roof and create a space for the practices of all communities in a just manner, while ensuring
that everyone is treated equally under the law.

Secondly, the one common argument given by all the political parties highlighting their
reluctance to implement the Uniform Civil Code is that implementing Article 44 violates the
rights of Indians provided under Article 25 i.e., "Freedom of conscience and free profession,
practice and propagation of religion."

The counter argument that can be cited is present in the same Article 25 itself under Clause
2, where it is clearly indicated that:

This article shall not affect the operation of any existing law
or prevent the State from making any new law.

a) regulating or restricting any economic, financial, political

or other secular activity which may be associated with
religious practice.
b) providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character to
all classes and sections.

Thirdly, with the non-implementation of Article 44 of the constitution, articles 14 to 18 are

being violated which provide for Right to Equality before Law and prohibition of
discrimination on the grounds of sex and religion. Many personal laws relating to marriage,
inheritance, guardianship, divorce, adoption and property relations in all communities are
unjust, especially to women.

Fourthly, ambiguity is created due to the presence of different laws governing a social
institution such as marriage, particularly in the case of polygamy and divorce; both within a
religion as well as amongst different religions.

Fifthly, misapprehension prevails about polygamy in Islam. Ironically, Islamic countries like
Syria, Tunisia, Morocco, Pakistan, Iran et cetera have codified the personal law where in the
practice of polygamy has been either totally prohibited or severely curtailed to check the
misuse and abuse of this obnoxious practice.

Lastly, one of the advantages of a uniform civil code will be a proper notice period and
registration of the marriage. The ceremonies will become optional - parties can have
ceremonies of their choice as a ritual, (i.e., Hindu— Saptapadi; Muslim— Nikah; Christian—
Church blessing, etc.) However, the proof of the marriage will be the registration and
compliance with what is required of notice, etc., as set out in the uniform civil code.
Monogamy will be mandatory, and the laws of divorce will be the same for men and women
and this will lead to cohesion and no fragmentation of society. Men and women must be
entitled to equal property rights which can be enforced by law. This will also ensure real
equality between men and women, irrespective of their religion.

In addition, a uniform civil code will also help in reducing vote bank politics that most political
parties indulge in during every election. If all religions are covered under the same laws, the
political actors will have less to offer to certain minorities in exchange of their vote.

Criticism of the Uniform Civil Code

The objections raised for implementations of a Uniform Civil Code in India by communities
show that the imposition of such a code can pose a serious threat to the sexual social fabric
of the country and the minority community in general and the minority communities in
particular.

Support for a uniform civil code from the Sangh Parivar has led minority communities to fear
the imposition of the religious customs and rituals of the majority community under the garb
of a uniform civil code.

A common civil code is also seen as an infringement on the Fundamental Rights enshrined
in the Constitution of India which guarantee the right to freedom of conscience and free
profession, practice and propagation of religion (Article 25) and freedom to manage religious
affairs (Article 26).

Most religious scholars consider their scriptures and personal laws to be of Divine origin and
ergo show strong resentment towards any sort of interference with the same. They believe
personal laws are sacrosanct and immutable and no legislature can amend it.

In addition, most religious practices have been carried out in conformity with these personal
laws since times immemorial and any attempt to alter them can hurt religious sentiments and
sow the seeds of mistrust among communities.

The unfavourable response in the idea of the code makes it very likely that protest would
occur, if the code is shoved down the throats of the Indian public. Given the strained ethnic
and religious fabric of this country, it is better to leave things that may cause tensions.

It is also worth noting that most discriminatory practices have found their bases in distorted
codified personal laws which do not conform to the authentic sources. The fault therefore lies
not in religious principles but in the flawed process of codification.

Hindu Personal Laws

The Supreme Court in the Sarla Mudgal case of 1995 took on the government for not having
initiated any steps in the direction of introduction of a Uniform Civil Code. Justice Kuldip
Singh and Justice R.M. Sahai in their judgement observed,

“The utmost that has been done is to codify the Hindu law in
the form of the Hindu Marriage Act, 1955. The Hindu
Succession Act, 1956, the Hindu Minority and Guardianship
Act, 1956 and the Hindu Adoptions and Maintenance Act,
1956 which have replaced the traditional Hindu law based on
different schools of thought and scriptural laws into one
unified code. When more than 80% of the citizens have
already been brought under the codified personal law there
is no justification whatsoever to keep in abeyance, anymore,
the introduction of "uniform civil code" for all citizens in the
territory of India.”

The main issue in this case was bigamy by Hindu men. However, this got sidetracked, and
the uniform civil code became a political plank in the elections that followed. Up till date, the
various presumptions made by the judgement have remained unaddressed, some of which
are listed below:
a) Hindu marriages are monogamous in nature.
b) The judiciary has consistently and systematically upheld the principle of monogamy
among Hindus by penalising the errant husbands.
c) The only breach of monogamy among Hindus is by conversion to Islam. To quote from the
judgement, "there is an open inducement to a Hindu husband, who wants to enter into a
second marriage to become a Muslim”.
d) A uniform civil code will plug this loophole and ameliorate the sufferings of Hindu women:
e) All the four petitions which the judgement dealt with were filed by women whose
husbands had converted to Islam and remarried: and
f) Both the judges who heard the matter advocated enforcement of a uniform civil code on a
priority basis as the only remedy to conversion and bigamy by Hindu men. Until 1955, Hindu
marriages were polygamous and hence Hindu men did not attract the penal provision of
Section 494 of the Indian Penal Code. The Hindu Marriage Act of 1955 for the first time laid
down the principle of monogamy.

Additionally, even in spite of the Hindu Code Bill, the inheritance rights of women according
to Hindu personal law shows that equal rights are not given to women on the ground that it
would disturb family peace, lead to fight between brothers and sisters, result in
fragmentation of land and so on. So, the patriarchal order of the family is promoted. When a
woman is denied the ownership, inheritance and matrimonial rights, it indicates male
dominance and dismissal of women's labour at home. Custody and adoption laws also
enforce the notion of father as the natural guardian. A married Hindu woman is not allowed
to adopt a child in her own name. Thus, there is legitimation of male dominance in a family
system.

Similarly, the Hindu succession law protects son’s rights by keeping the provision of making
a will.

The Sikh, Jain, and Buddhist communities in India are governed by the same civil laws as
the Hindus.

Muslim Personal Laws

As far as the Muslim perspective is concerned, some part of the Community not to be
opposed to the idea of a common code as such since they can very well accept any law,
provided it does not prohibit them from doing what is fard (compulsory) or forces them to do
what is haram (prohibited) in the religion. Now it should be realised that though Islam gives
permission for polygamy it does not hold it to be far. So even if a Muslim is made to live
under a law that established monogamy, he could abide by the law as polygamy is not far.
However, when given an option they would certainly prefer Sharia Law over other laws.

As per Sharia law, legal adoption is prohibited in Islam as is explicitly stated in the Quran
(33:4), “...neither has He made your adopted sons as your own sons”.

In relation to marriage, Muslims are allowed to marry more than one wife but there is an
upper limit of four as promulgated by the Quran (4:3), “Marry a woman of your choice in two,
three or four but if you can't do justice, marry only one.”

The consent of both the spouses in the marriage contract is essential for the validation of a
marriage under Muslim personal laws.
Divorce is another aspect of personal laws and the Prophet conceded that of all the things,
divorce is most tasteful to God, however it was allowed with certain restrictions, The Quran
says in Chapter 4, verse 35, “If you fear a breach among them, then appoint two arbitrators,
one from his family and one from hers. If they seek to set things all right, Allah will call their
reconciliation.” This conception of divorce however does not seem consistent with the triple
talaq that is being practised by the Muslims with immunity in this part of the subcontinent.

Regarding guardianship, there are specific rules, both in Hindu law as well as in Muslim law.
The details may differ but the substantive principle that the “interests of the child” should be
a supreme consideration has been accepted by all systems.

A brief reference to the problem of maintenance is necessary. Under the Muslim law, it is a
duty of the faithful husband to maintain his wife with the same standard of living which he
has. The Quran ordains the same in the following verses, chapter 2, verses 240 and 241,
“Those of whom you die and leave widows should bequeath for their widows a year's
maintenance without expulsion. For divorced women also, there shall be provision to what is
fair.” It was on the grounds of these verses that Mr. Daniel Latif argued in the Supreme Court
in Shah Bano's case.

Christian Personal Laws

The Christians in India have expressed varied opinions regarding distinct aspects of the
personal laws. A part of the Christian community believes that Section 10 of the Divorce Act
is discriminatory against women, since much is expected by way of proof from them as
against men. Most Christians (both Catholics and Protestants) support the introduction of a
uniform civil code though with some reservations. For example, the Catholics prefer
annulment of marriage over divorce.

On the point of adoption, the Christians want full adoption to be legalised. Now there is a
prohibition in Christian law; they cannot adopt and hence Christians are sent abroad for
adoption. All of them are of the uniform view that all aspects of Christian personal law are
negotiable. On the point of succession, they believe that though the Indian Succession Act is
quite satisfactory, in case of intestacy, the Christian customary laws that are discriminatory
must go. According to them, the widow must get full rights in a husband's property to be
divided between the children, as and when she likes. In the John Vallamattom & Anr vs
Union of India case 2003, the Supreme Court declared Section 118 of the Indian Succession
Act to be void as it found the provision to be discriminatory and violative of articles 14, 15, 25
and 26 of Constitution. The Section stated that “No man having a nephew or niece or any
nearer relative shall have power to bequeath any property to religious or charitable uses,
except by a Will executed not less than twelve months before his death, and deposited
within six months from its execution in some place provided by law for the safe custody of
the Wills of living persons''. The Christians found this to be an infringement upon their
religious right to practise charities to attain spiritual salvation.

Parsis and the UCC

Parsis do not believe in conversion as conversion to Zoroastrianism is prohibited by religion.
In case of adoption, Parsis do not like to adopt a non-Parsi child because it is only a Parsi
who is entitled to visit the fire temple and to get the benefits from the private Parsi trust. They
would want full adoption but, in that case, the adopted child must necessarily be a Parsi, and
adoption must be by Parsi parents. Parsis are supportive of a uniform civil code on the
condition that their rituals in marriage are preserved.

Polygamy was and is non-existent in Parsis, in fact, it is a ground for divorce under the Parsi
law.

Special Marriages Act and Indian Succession Act

It can be argued that a uniform civil code is not a necessity since we already have non-
religion-specific legislation, such as the Special Marriage Act, 1954. However, the first
Special Marriage Act was enacted not in 1954 but in 1872. It required the parties marrying
under it to renounce their religions. It is only when the Special Marriage Act was re-enacted
in 1954 that it permitted interreligious marriages without the couple having to renounce their
religion. Parties marrying under this Act were governed by the Indian Succession Act, 1926
for purposes of inheritance. Subsequently in 1976, Hindu couples marrying under the
Special Marriage Act of 1954 were taken out of its ambit, and could inherit under the Hindu
Succession Act, 1956. This was a retrograde step, because for a Hindu wife her inheritance
was depleted due to the coparcenary system.

Goa Civil Code

Goa is the only state in India which continues to be governed by Portuguese Laws with
respect to Family Laws relating to marriage and Succession Laws. The corresponding laws
of India are not extended to the state of Goa.

Portuguese law is however applicable only to a Goan.

A Goan citizenship under Article 18 of the Portuguese Civil Code, is acquired by.
a) birth in Goa, or whose father is born in Goa or whose grandfather is born in Goa, or
b) a woman by virtue of marriage, or
c) by naturalisation.

By default, every Goan marries under a system called Communion of Assets, whereby, from
the time of his marriage, his spouse acquires half undivided right in the assets of the other,
unless a contract called the Ante Nuptial Contract is executed to avoid such a system of law.

In the matter of gratuitous disposition of properties i.e., by will or gift, there is a prohibition
by which no disposition can exceed half right of a person. This is called disposable quota,
and the remaining part is called non-disposable quota.
The Intermediate Position of the Uniform Civil Code- Gradual and/or Optional

Many jurists have expressed their anxiety regarding the upheavals that might follow the
introduction of a uniform civil code. They have promulgated an intermediate position, that is,
the establishment of the uniform civil code must be done slowly, with the consent of all
communities. In the Constituent Assembly, K. M. Munsh wanted to narrow the definition of
religious practice. He pointed out that the personal law of Hindus was discriminatory against
women and contravened an Indian citizen's right to equality. Therefore, "religion must be
restricted to spheres which legitimately belong to religion, and the rest of life must be
regulated, unified and modified in such a manner that we may evolve, as early as possible, a
strong and consolidated nation."

Ambedkar can also be put in this group since he supported the inclusion of the uniform civil
code in the directive principles but said that the code would only apply to those who wanted
it to apply to them.

Syed Shahbuddin, former President of the All India Muslim MajliseMushawarat believes that
the project to implement UCC should logically pass through three stages:

a) The codification of personal laws of various communities so that over a period of time
there is adequate basis in terms of comparative jurisprudence to serve as a foundation to
evolve common principles for a uniform civil code,
b) There is also to be a transitional phase of optionality, and
c) If the uniform civil code comes into conflict with Shariat, the Muslim community should be
granted exemption when the UCC becomes obligatory.

However, such a piecemeal approach may give rise to new inconsistencies in personal laws
across religions and hence defeat the very objective of a UCC.

Feminists and UCC

From the outset the problem with the uniform civil code debate was its gratuitous emphasis
on uniformity. Both judicial pronouncements and public debate justified it as essential for
national integrity. For a long time, it was rarely articulated in the public consciousness as a
feminist issue. It became a debate about uniformity versus minority rights, secularism versus
religious laws and modernisation versus tradition in the context of the new nation state.

As Tahir Mahmood, an expert in personal law, points out, the ultimate object of Article 44
(which enjoins the state to move forward towards a uniform civil code) is secularity in family
law: ‘the call for uniformity is merely the means.

Over the years, consensus has emerged among feminists that all religious personal laws are
discriminatory and must therefore change. There are, however, disagreements over the
means to achieve this objective, whether through a state- sponsored civil code or internal
reform. Aware that legal change cannot be isolated from wider political conflicts and
majoritarian politics, women’s groups made an attempt to distance feminist positions from
the Hindu right’s demand for a uniform civil code.
The women’s movement has since moved to a more nuanced position which combines the
options of reform from within personal laws, with the formulation of gender-just laws deriving
from the concept of a common civil code. The All-India Democratic Women's Association,
which has a leftist leaning, supports a two-pronged strategy to achieve reconciliation
between gender-just laws as well as reforms from within. It has actively engaged in
mobilising Muslim women and encouraging community initiatives for legal reform,
codification of personal laws, and at the same time demanding legislation with regard to
matrimonial property and the custody of children, among other issues.

In the context of the controversies surrounding uniform civil code, an important development
over the past few years has been the emergence of Muslim women’s activism seeking to
promote women’s rights rather than focusing all energies on changing personal laws. Muslim
women in India face considerable challenges as citizens and as members of the largest
minority. They suffer from many disadvantages in areas such as education, employment and
access to welfare programmes. The status of Muslim women broadly indicates the shortage
of three essentials: knowledge (measured by literacy and average years of schooling),
economic power (captured through participation in paid work and income), and autonomy
(measured by decision making and physical mobility) as the defining features of women’s
low status.

However, the preoccupation with the either-or debate has meant glossing over the
economic, political and social problems that define the everyday experiences of Muslim
women.
A high-level committee on the status of the Muslim community, known as the Sachar
Committee, has shown that they are impoverished, marginalised and underrepresented in
public institutions. They do, however, have the right to have their own personal laws and to
continue to practise these under state protection. From the point of view of Muslim women
this has meant that the articulation of gender interests has been tightly controlled and
articulated within the terms of an identity discourse. Political negotiations over personal laws
have invariably favoured conservative voices among Muslims to the detriment of women’s
voices and women’s rights. Those who argue for reform from within of Muslim personal laws
as the best strategy for enhancing the scope of Muslim women’s rights ignore the fact that
such an approach tends to freeze identities within religious boundaries. Very little attention
has been paid to the multiple crosscutting identities of Muslim women based on class,
language and region, among others. Implicit in this approach is the assumption of a
homogeneous Muslim identity, which fails to hear the different voices within the community.

Replacing the system of personal laws with a uniform civil code right after independence
could have nipped the bud; the problem, however, was that, in the immediate aftermath of
Partition it would have given a signal of inferior status to the Muslim community, which was
already reeling under a sense of insecurity. Now, nearly seven decades past independence,
it will be difficult to accomplish the goal of reforming these personal laws even with the best
intentions and will, and even with the considerable involvement of Muslim women.
Questions to Answer as a Committee Note:

These are only for your reference, and we strongly encourage, and would appreciate you
going above, and beyond this line of questioning.

a) With reference to India, how would the Government of India define the concept of the
UCC?

b) (b)Is it suitable to implement the UCC in a country as religiously and culturally diverse as
India?

c) Discuss the constitutional validity of the UCC in India.

d) What are the practicalities and considerations for the actual implementation of the UCC?

e) How should the administration control the spread of false rumours and propaganda and
prevent any possible negative aftereffects if the UCC were to be implemented?

REFERENCES