Introduction to Uniform Civil Code in India

The Uniform Civil Code of India is a set of laws that seeks to harmonize the personal laws of all citizens in the country.

It is based on the principles of gender equality, secularism, and justice and aims to provide a uniform legal system for all citizens, regardless of their religion or caste.

The following topics are to be read to understand the Uniform Civil Code in India.

• Article 44
• Ahmed Khan V Shah Bano Begum Case
• Shayaro Bano v Union of India
• Goa Civil Code

 

ARTICLE 44

Article 44, which is in the part IV of the constitution says that “the state shall endeavour to secure all its citizens a Uniform Civil Code throughout the territory of India.

Article 44 of the Indian Constitution’s Directive Principles sought to address discrimination against vulnerable groups and bring diverse cultural groups across the country into harmony.

Article 35 of the draft Constitution was added as a part of the Directive Principles of the State Policy in part IV of the Constitution of India as Article 44 because Dr. BR Ambedkar had stated that a UCC is desirable but should remain voluntary for the time being. It was spelled out in the Constitution as a condition that could only be met when the nation was ready to accept it and the UCC could gain social acceptance.

 

MOHD. AHMED KHAN V SHAH BANO BEGUM CASE

The Shah Bano case (1985) is one of the most contentious instances in Indian legal history, with the Supreme Court ruling in favour of a divorced 62-year-old Muslim woman named Shah Bano Begum. However, the decision of the highest authority was later overturned in Parliament.

In Indore, Madhya Pradesh, Mohd. Ahmed Khan was an influential and wealthy lawyer. In 1932, he wed Shah Bano Begum, and together they had five children—three sons and two daughters. In 1946, Khan got married again without giving Bano talaq (divorce).

Shah Bano was forced to move out of her husband’s house with her children in 1975. In April 1978, 62-year-old Shah Bano filed a court petition for maintenance for herself and her children from Khan. Later on, in November 1978, Ahmed Khan presented Bano with talaq.

Under Section 123 of the 1973 Code of Criminal Procedure, Shah Bano brought a case against her former husband. Section 125 of the 1973 Code of Criminal Procedure states that a husband must support his wife during the marriage and after a divorce if she has difficulty earning a living. Mohd was ordered by the local court in August 1979. Khan will make a monthly payment of Rs. 25 to Bano.

The Madhya Pradesh High Court ordered Khan to pay Bano 179.20 per month in maintenance in 1980. However, Khan refused to pay her and filed a lawsuit with India’s highest court, the Supreme Court, saying that under Muslim law, a husband is only entitled to provide support for the Iddat term following divorce.

Iddat Period

The Iddat period, as defined by Islamic law, is the time during which a Muslim woman is prohibited from marrying another man. It begins when her husband says the word “talaq.” However, Iddat is observed until the baby is delivered if the woman is pregnant. It’s critical to keep in mind that the woman can only get support from her husband during the Iddat period, not after it ends.

The Supreme Court’s decision states that, regardless of caste, creed, gender, or religion, the husband is obligated to provide maintenance for the divorced wife if she is unable to do so for herself, and that Section 125 is in no way in conflict with the Muslim Personal Law. The Supreme Court also emphasized after the decision that the Uniform Civil Code (UCC) must be implemented immediately to stop future controversies like this one.

Overturning of the judgement

In the country, there were a lot of protests because of the Supreme Court’s decision.

Muslims believed that their personal law had been violated and that they were entitled to freely practice their religion. Streets were full of people. The 1973-founded All India Muslim Personal Law Board also took part in the protests. According to a number of Congress leaders, Rajiv Gandhi, the Prime Minister at the time, should the government not pass a law to weaken the Supreme Court’s order, it would really hurt the INC in future elections.

As a result, Parliament diluted the Supreme Court’s decision in 1986 with the Muslim Women (Protection of Rights on Divorce) Act. The Iddat Period, or 90 days following a divorce, was the only time the law permitted a woman to receive maintenance. However, this act was later declared invalid, and the Supreme Court maintained its position.

 

GOA CIVIL CODE

India’s only state with a uniform civil code is Goa. After its annexation in 1961, the Goa Family Law, originally known as the Portuguese Civil Code—continues to be in effect. After Portuguese Goa and Damaon (Daman and Diu) were elevated from Portuguese colonies to Provincia Ultramarina (Overseas possession) status in 1869, this was implemented in 1870. It underwent numerous subsequent modifications as a result of:

• The Portuguese Gentile Hindu Usages Decrees of 1880.
• The Portuguese Decrees on Marriage and Divorce of 1910.
• The Portuguese Decrees on Canonical Marriages of 1946

The Government of India appointed a Personal Law Committee in 1981 to explore whether the Union’s non-uniform laws may be extended to Goa. Religious organisations responded positively and negatively, but the Government of India ultimately decided not to amend the existing civil code.

Meanwhile, in British India, many reformation efforts were made by the British, beginning with The Caste Disability Act of 1850, but later they adopted a nonintervention policy in matters of religious belief or worship within British India, mandated by Queen Victoria in 1858 following the First War of Independence, fearing opposition from majority religious communities.

 

Uniformity

Due to its specific provisions for particular communities, the Goa Civil Code is not strictly uniform. It has been alleged to favor Christian and Hindu communities. For instance:

• Hindu men are allowed to practice Bigamy if their spouse fails to deliver a male child by the age of 30. For other communities bigamy is prohibited.
• The Roman Catholics can solemnise their marriages in church after obtaining a No Objection Certificate from the Civil Registrar. For others, only a civil registration of the marriage is accepted as a proof of marriage.
• The Catholics marrying in the church are excluded from divorce provisions under the civil law. For Hindus, divorce is permitted only on the grounds of adultery by the wife. Whereas for muslims verbal divorce or triple talaq is not permitted.

Recently, there has been a movement to apply the Goan civil code model throughout India.

On March 27, 2021, Chief Justice of India (CJ) S A Bobde praised Goa’s Uniform Civil Code and advised “intellectuals” engaging in “academic discussion” to visit the state to learn more about it.

Of course, it has obvious flaws, but it can nevertheless serve as the foundation for a more equitable Uniform Civil Code for the entire country of India.

 

 

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AUTHORED BY AJAY ADITHIYAA N

To read Part One of the UCC article: UNIFORM CIVIL CODE: ACHIEVING EQUALITY IN INDIA -1 – Prime Legal

This article discusses the proposed Uniform Civil Code in India, which aims to replace the personal laws of different religious communities with a single code that is applicable to all citizens. The article discusses the historical background of legal pluralism in India and explains why a Uniform Civil Code is needed. – The Constitution of India provides uniform civil code as a directive principle and corresponds to article 44. It outlines the State’s policy in Part IV, which is considered to be fundamental rights and fundamental duties that lie with the state citizens. The article discusses how religious scriptures have been applied as personal laws in India, and how this has caused problems for those whose rights lie within the court system. UCC is the uniform set of laws that all states must abide by, regardless of territory or religious beliefs. It is important for India governance to ensure that all citizens are treated equally under one law, regardless of their beliefs or where they live.

However, in India, Hindu Succession Act and Muslim Personal Law are two separate laws based on the religion of the people. Customary law is also observed in different communities such as Jammu and Kashmir, where there is a separate code for Muslims. This means that some religious communities will have different rules for succession and inheritance than others. In order to ensure that Indians are treated equally under one law, a single statute book was created to continue personal laws for different communities. This statute book also includes codified criminal laws so there is uniformity across all states of India.

UCC in India has been affected by religion and caste over the years. Since most civil matters are governed by secular civil laws, personal laws are based on religious views of different people. The Indian Contract Act, Evidence Act, Partnership Act and Civil Procedure Code have all been impacted by UCC in India. Over 100 amendments have been made to the various statutes to bring about uniformity in certain aspects of civil law. The diversity of faith and beliefs among different people has meant that certain aspects of UCC have had to be changed or amended several times over the years. This has resulted in a similar code for all states as far as civil laws are concerned. However, there is still some disparity when it comes to criminal laws, criminal procedure and certain aspects of the Criminal Procedure Code and Indian Evidence Act due to tribal domiciles or caste affiliations. The Contract Act, Partnership Act and Evidence Act remain largely unchanged across all states in India thanks to the UCC reforms that have taken place over the years.

The Uniform Civil Code (UCC) is an attempt to codify civil laws in India, thereby replacing distinct personal laws of different communities with a unified decree. This was done with the intention of promoting a citizens code and unifying the diverse sects and religions under one law. The UCC is applicable on matters like marriage, divorce, adoption, succession and inheritance. It was written into the Indian Constitution to ensure that unique personal laws pertaining to religion, race and caste do not override criminal laws. The draft model document of UCC was framed by the framers of the Constitution in order to apply one nation’s law equally across all states in India. The model document includes provisions from various civil laws such as CrPC, Indian Evidence Act etc., which are applicable on all citizens regardless of their religion or race or caste.

It is proposed to replace the personal laws of various religions in matters including marriage, divorce, maintenance and inheritance. The Uniform Civil Code (UCC) seeks to provide a common law for all citizens of India, which will give equality and fairness in legal proceedings involving marriage and property. It will also give vulnerable sections such as women more rights in adoption, custody and inheritance. In addition, it will provide legal protection for the rights of children in matters related to divorce and child custody. This proposal has been set up to improve the current system of personal laws which are often found to be discriminatory towards women or members from minority communities.

In India, the ruling Bharatiya Janata Party (BJP) has sought to enact a Uniform Civil Code (UCC) that would cover all citizens of India regardless of their religion or creed. The Janata Party, led by Atal Bihari Vajpayee, first introduced a private member bill in 1996 seeking UCC implementation. This was followed by the BJP when it came to power in 1998, introducing a bill in Parliament for the enactment of UCC. The advent of this investigation committee has fueled debate on UCC in India and its implementation across the entire territory. The political climate has been seen as an important factor for the preparation of this law which seeks to bring uniformity across personal laws that have been in place since colonial times. Private members from both sides of Parliament have also introduced bills to push for UCC implementation, with some calling for greater consultation with minority communities before enacting such laws. The BJP-led government has continued its efforts towards implementing UCC and is still pushing for its passage despite facing resistance from certain political parties due to cultural and religious differences among communities in India.

UCC seeks to create a uniform civil code that would govern the personal matters of all citizens, regardless of their religious views. This would replace the current laws governing marriage and divorce, which are based on Sharia law and Hindu Code Bill. The UCC would make laws that are applicable to all religions in India and ensure the constitutional rights of citizens while taking into account their religious views. The principal historic goals of UCC can be seen as part of Modi’s vision for India as he has set out places for its implementation. Marriage, divorce, adoption and inheritance in India need to be properly regulated by a universal law which is why UCC needs to be implemented. The effects of this could potentially be felt within an hour as more uniformity and equality is brought about through the shared legal system.

The UCC in India was introduced with the Hindu Code Bills in 1956, supplanting the separate laws of various religious communities. This allowed for the reformatting of personal laws, permitting different religious communities to have their own civil laws. Hindus, Sikhs, Buddhists, Christians and other religions were affected by this in different ways. For example, Hindus were no longer permitted to practice polygamy, while Sikhs and Buddhists gained access to their own succession acts. In addition to this, Portuguese law was also supplanted in certain states such as Gujarat due to various historical influences from the Mughal and British eras. Since India gained independence from the British Raj in 1947, there has been a legal pluralism that has emerged amongst the different sects of people living within India. This includes those of different religions and those who are part of separate communities such as Gujarat which had previously been governed by its own shastric Hindu law. The introduction of UCC meant that all individuals now had equal rights when it came to matters such as succession and inheritance regardless of their religion or ethnicity. This is especially true for those who were residing within India during the Mughal and British eras as they were not afforded such rights before this legal framework was implemented.

 

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AUTHORED BY AJAY ADITHIYAA N

SECOND APPEAL No. – 676 of 1991

UNION OF INDIA AND OTHERS V. RAMDHANI PRASAD

BENCH: JUSTICE VIVEK CHAUDHARY 

 

CONSTITUTION OF INDIA

Article 311 (1)

No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by a authority subordinate to that by which he was appointed.

 

 

FACTS OF THE CASE

 

Thursday, the Allahabad High Court in Lucknow decided that the appointing authority or any other authority that is more senior to the appointing authority can only issue an order to remove an employee from service. The appeal challenging the Additional District Judge’s decision and judgment was being handled by Justice Vivek Chaudhary’s bench.

Under the authority of the Chief Security Officer, the respondent was appointed to the Railway Police Force’s “Rakshak” position. An order that was signed by the Assistant Commandant of the Railway Protection Special Force suspended the respondent without giving him a charge sheet.

The respondent moved to his village during the suspension, where he became ill and had to be admitted to the hospital. In the interim, in his absence, a departmental investigation was launched against the respondent. The respondent received a show cause notice, but the notice was returned as unserved because the receiver was unavailable. The respondent was ordered out of service by the Adjutant/Assistant Commandant, Railway Protection Special Force, Lumding-Assam. The respondent appealed his removal order to the Commandant of the Railway Protection Special Force, but his appeal was rejected.

The respondent filed the initial lawsuit in opposition to the aforementioned orders, requesting that the Adjutant, Railway Protection Special Force order and the Assistant Commandant, Railway Protection Special Force order be overturned and that he be made a member of the Railway Protection Special Force.

The respondent’s lawsuit was dropped. The respondent filed an appeal against the Trial Court’s decision, which was decided in his favor.

The bench was to consider the following issue:

Whether the Assistant Security Officer/Assistant Commandant/Adjutant has the power to pass an order of removal from the service against the respondent who was appointed to the post of ‘Rakshak’ by the order of the Chief Security Officer?

JUDGEMENT

The bench opined that “no doubt an Assistant Security Officer can remove a Rakshak from service but it has to be first seen who was the appointing authority of such a Rakshak. Protection afforded to an employee by Article 311(1) of the Constitution provides that an order of removal/dismissal from service can only be passed by the appointing authority or any other authority senior to the appointing authority. In the present case the respondent was appointed by the Chief Security Officer and removed by the Assistant Security Officer, who is subordinate to the Chief Security Officer in the hierarchy of the Railway Police Force, this does not satisfy the protection afforded to an employee by the Article 311 of the Indian Constitution.”

According to the High Court, an employee’s constitutional protection under Article 311 was in effect on the date of his appointment, even if the power of appointment is later extended to subordinate officers. The circumstances as they existed on the date of appointment are relevant when determining which authority is qualified to issue a dismissal or removal order.

 

The bench cited Krishna Kumar v. Divisional Assistant Electric Engineer and Others, in which it was ruled that “Since the appellant was appointed by the Chief Electrical Engineer and has been removed from service by an order passed by Respondent 1 who, at any rate, was subordinate in rank to the Chief Electrical Engineer on the date of appellant’s appointment, it must be held that Respondent 1 had no power to remove the appellant from service.” This decision was based on the Supreme Court’s decision in the case. The removal order clearly contravenes the Constitution’s Article 311(1) provisions.

After applying the preceding judgment, the High Court concluded that the respondent’s appeal was granted by the First Appellate Court in good faith. The First Appellate Court correctly applied the protection provided to an employee by Article 311(1) and overturned the Trial Court’s decision.

The bench denied the appeal based on the foregoing. 

 

 

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JUDGEMENT REVIEWED BY AJAY ADITHIYAA N

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