January 24, 2018

India Constitution, Uniform Civil Code & TripleTalaq

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One country, one people and one law to rule them all.

This debate started in the early dawn of independent India even while our constitution was being written and it still continues today, unabated. Our country functions under a common law as regards civil and criminal cases. The exception being personal laws for marriage, divorce, inheritance, maintenance and adoption. Since these aspects belong solely to the personal space of an individual, these were so far dealt with in consideration to the person’s religious beliefs. However, today the world has changed. These archaic laws have become mere excuses that often end up in promotion of gender crimes and crimes against humanity and natural justice. Thus in the interest of marginalized and often persecuted sections of society, and therefore, in the wider interest of societal well being, one must seriously consider the viability of a uniform civil code

What are the arguments given against a uniform civil code?

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The primary opposition comes from the religious groups and clergy. Practices and rituals related to marriage, divorce etc. are deeply linked with the religion or community. So, if a law comes into effect that disregards these practices and rituals, it would indirectly be a restriction on the fundamental right to freedom of religion. This would go against the secular nature of our constitution, or so the opposers claim.
The next point of worry for the opposing factions is that should there be a uniform law, the laws of which community or religion would be taken as base. In such a diverse country as ours, would it be constitutional to override all other beliefs by giving preference for one?

The key points to note in case of these arguments are such:
a. Right to freedom of religion is not an absolute right. Which means it cannot override the fundamental right to equality and the right to life. Should any religious practice or ritual lead to discrimination or crimes against a particular gender, or a community, the constitution provides for the law makers and the judiciary to stop such a practice

Central Government Act
Article 25 in The Constitution Of India 1949

25. Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any 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 of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly
Central Government Act
Article 26 in The Constitution Of India 1949

26. Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law
Reference –indiankanoon.org 

b. Secularism in India is defined as equal status for all religions. It is not based on excluding religion from public sphere, instead it puts every belief, every faith on equal standing. In case of a uniform civil code, the law will be applicable across the board on all individuals regardless of their religion. Which means every religion will face an equal restriction of law and that too in the interest of the welfare of its women and children. The question of threat to the secular nature of our country in itself is a redundant one here.

c. A uniform civil code need not use the laws of any community or religion as a base. A good example is the special marriages act that allows an Indian citizen to marry outside the religious framework.

A uniform civil code has many advantages. It will reduce the confusion and tediousness of proceedings in case of civil disputes that is all too prevalent these days. It will also enable equality for women, children and other disadvantaged sections of the society. It will promote humanity and natural justice among the people across different communities. And in the process it will be one more step towards national integration.

Central Government Act

Article 14 in The Constitution Of India 1949
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Reference –indiankanoon.org 

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Having said this, I wish to quote Justice V R Krishna Iyer who said “personal laws may be reformed from within, without a quantum leap into a common code”. While our aim should be an eventual uniform civil code, it is useless to impose it on the general populace on point blank range. The results of any such imposition would be disastrous for the country. Instead, the way forward should be gradual reduction of odds and discriminatory practices within different civil laws making them slowly more and more inclusive and equal for all individuals, all the while without destroying the good parts.
A change must be born from the desires of the people. Only then can it be sustainable in the long run.

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About Sneha 7 Articles
BTech in Civil Engineering and worked for a while, I chose to be a stay at home mum for my dear son. I like to read, and write as and when moved to.
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