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Key Takeaways

  • Personal laws are a system of laws that apply to a specific class, group of individuals, or people based on religious beliefs, faith, and culture.
  • The Charter Act of the British Parliament of 1833 established a Law Commission to unify and codify Indian laws.
  • Article 44 of the Constitution of India states that the state shall seek to provide for the citizens a uniform civil code across the territory of India.

Introduction

Personal laws are a system of laws that apply to a specific class, group of individuals, or people based on religious beliefs, faith, and culture.Because of the country's geopolitical makeup, numerous cultures and faiths evolved, and as a consequence, we have a variety of personal laws in force. The consequences of flaws in numerous personal laws have led to an upsurge in multiculturalism within Indian society.

Personal laws in India date back to pre-colonial times. They govern Indian nationals' marriages, divorces, maintenance, property, and succession. Religious practices of many cultures have a great impact on these laws. Personal laws in India, while required for access to the law, often pose a threat to fundamental rights, frequently leading to injustice. Especially when the rights of one group are placed against the rights of another, thus undermining a certain section’s rights, for example, women's rights. They are deemed unchangeable since their authority originates from the religion itself. They were a topic of dispute during the Constituent Assembly Debates following independence, however.

Despite requests for a Uniform Civil Code at the period of the Constitution's formulation, all authorities in power have essentially overlooked personal laws. So far, revisions in personal laws have occurred within the scope of individual codes, and the planned reforms have been criticized for meddling with the religious freedom provided by the Constitution.

Historical Background

Religion and law were interwoven in ancient India, with the knowledge supplied by 'Shruti' and 'Smriti' acting as main sources codifying the ways of life. All 4 Vedas, Rig Veda, Sama Veda, Yajur Veda, and Atharva Veda, were included in the 'Shruti.' The Smritis were precepts and commentaries passed down by Hindu scholars. The civilization functioned as a well-structured entity as a result of these writings and learnings. 

Because the majority of the monarchs were Muslims, Islamic rules dominated the history of mediaeval India. The Quran was the fundamental source of Muslim personal law. This was strengthened by Prophet Mohammed's teachings.Due to populations intermixing during this period, there were many occasions where Hindu customs were maintained in a Muslim majority area and people lived in harmony. 

This started changing with the establishment of British rule in India. Though they first maintained a principle of non-interference with religious customs in India, their adoption of a unified criminal procedure while keeping civil rules behind established an illusory separation that would eventually prove to be a powerful tool to disrupt India. The British initially granted Hindus and Muslims the ability to exercise their own laws under the Charter of 1753.

Personal laws in India started to shift as a result of the Hastings Plan, which placed the judicial process at the discretion of English judges. Through the notion of precedents, religious practices began to be codified, and a system was constructed in which the function of religious academics was minimized. The Charter Act of the British Parliament of 1833 established a Law Commission to unify and codify Indian laws, which it achieved.Between 1862 and 1872, there was a considerable push for societal reform in India, and numerous major laws were passed. The Indian Divorce Act of 1869, the Hindu Wills Act of 1870, the Special Marriage Act of 1872, the Indian Evidence Act of 1872, the Christian Marriage Act of 1872, The Married Women's Property Act 1874; The Indian Majority Act of 1875 and Divorces Registration Act 1876 all came out of this.With the implementation of the Avadh Laws Act in 1876, modifications were also introduced to Muslim personal law. The Kazis Act 1881, the Transfer of Property Act 1882, the Guardians and Wards Act 1890, and the Bengal Protection of Mohammadan's Pilgrim Act 1896 were all key legislation that followed.

Major revisions in Hindu laws were first apparent with the passage of the Hindu Code Bills by Parliament in the 1950s, which disregarded customary rules and tackled many of Hinduism's gender disparities. In 1955, the Hindu Marriage Act was put in place, which targeted many of Hinduism's fundamental prejudices and formalized marriage regulations for Indians that were not Christians, Muslims, Jews, or Zoroastrians. It also established the notion of divorce and separation, which did not exist in religious legislation because marriage was deemed sacramental.

Why Codify

A "code" is a systematic collection of legislation or a body of law that is structured such that redundancy or discrepancy between them is avoided. The codification of law aids in the identification of inconsistencies, duplicate laws, and unclear laws. Codification produces a standardized source that is easily accessible to both experts and the general public. The British government's codification of Indian common law in the 19th century was more than an effort to explain and strengthen the law. It was also an attempt to reform and modernize the legal system.

The codification procedure can be used to standardize legal judgments and relevant legislation. Rather than enacting new legislation, this approach just arranges existing regulations, generally by topic. Codification guarantees that the law is well understood. Codification also prevents the problems of judicial legislation.In a sense, it would help avoid frivolous petitions about personal laws and their execution from being submitted before courts, thereby saving valuable time.

Constitutional Provisions Relating to Personal Laws

Personal laws derive their authority from religion, which is covered under Articles 25-28 of the Constitution. As a result, personal laws are protected by the Constitution in two ways:To begin, the Constitution declares all pre-constitutional law null and unlawful to the degree that it violates fundamental rights. Second, it specifically prohibits the state from enacting legislation that may infringe on basic rights.

The Supreme Court has often stated that a unified civil code is required under Article 44 of the Constitution. Article 44 of the Constitution of India states that the state shall seek to provide for the citizens a uniform civil code across the territory of India. Article 44 is included in Part IV of the Indian Constitution, which provides the Directive Principles of State Policy (DPSP). 

While Article 25 maintained religious freedom of profession, practice, and propagation, Article 44 removed religion from social structures and personal law. As a result, Article 44 does not contradict Articles 25 and 26 of the Constitution. These are reflected in several Supreme Court proclamations on this delicate matter throughout the years. The Court has gone so far as to argue that Article 44 has become a dead letter, reflecting their hope about the potential of a Uniform Civil Code.

The Uniform Civil Code: Viability

The Uniform Civil Code (UCC) envisions a single legislation that applies to all people of the nation in personal matters including marriages, divorce, succession, custody, and adoption, among others. The UCC's origins can be traced back to colonial India when the British government issued a report in 1835 emphasising the necessity for uniformity in the codification of Indian laws pertaining to criminal acts, evidence, and contract terms, specifically suggesting that the personal laws of Hindus and Muslims be excluded from such codification.

Article 44 of the Constitution of India provides for the creation of a uniform civil code across the territory of India in its DPSPs. According to Article 37 of the Indian Constitution, DPSPs are neither enforceable or defensible, but they are vital to the country's administration, and it is the obligation of the state to adopt the principles specified in Part IV of the Constitution in establishing legislation.The UCC is focused on national integration. It makes no mention of the eradication of any religious identity.

This makes sense because processes and protocols like marriages, divorce, adoption, inheritance, and so on are largely social rather than religious. As a result, social and religious concerns must be separated in order to eliminate inequity, arbitrariness, and prejudice. The 'test of essential religious practices’ can accomplish the same thing.   Any activity that does not accord with the true nature and essence of religion must be controlled to promote uniformity under this criterion. The exam also adheres to societal, political, and economic justice goals without favoritism against anybody.

Arguments against the UCC mainly revolve around it being a ‘move against secularism’. It is argued that the government must consider the sentiments of the minority community when deciding whether or not to violate personal law. It is fairly ludicrous to expect individuals of varied cultures and traditions to follow the same rules based on a uniform system.Another significant obstacle will be Communal Politics or majoritarianism. Furthermore, the adoption of UCC could violate the principle of religious freedom entrenched in Article 25 of the Constitution, as well as Article 14 of the Indian Constitution.

Assessing the current, delicate political atmosphere in the country, the formation of a UCC may be influenced by the political and ideological objectives of the ruling majority. As a result, marginalized populations will view the Code with suspicion and trepidation.Of course, formulators would confer with religious leaders, but they historically been seen to have overwhelmingly been males. Most religious leaders are males, and their beliefs may put the female community at a disadvantage. Furthermore, the Code would have to take into account all of the doctrines of a religion's numerous factions. Harmonizing all faiths would be a Herculean effort.

Conclusion

India is a developing nation facingmany challenges. In India, despite significant progress toward codification, there is still considerable work to be done in terms of personal laws. Codification has its many proposed advantages; however, its actual procedure would be a colossal task. Codifying individual personal laws of all the religions in the country would prove to be a never-endingundertaking. But establishing a Uniform Civil Code could not ensure that all faith’s beliefs are taken into consideration, and could be seen as violative of their religious freedom. Codification, rather than a uniform code, however, would be seen as the less contentious option.The legislature and the courts are both given regulatory authority over personal legislation by the Constitution. These abilities, when used carefully, can assist in revising personal laws to bring them up to date with the times. While such powers should be used with caution, since it is not a simple undertaking, it is still a better choice than eradicating them and imposing a UCC, which arguably gets too near to a breach of Article 25 for comfort.
 


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