UNIFORM CIVIL CODE

The book strives to provide a historical, comparative, and multidisciplinary introduction to the study of private law. Against the backdrop of the predominant position enjoyed by legal positivism, private law is thus understood as a complex social phenomenon, which intercats with human culture as a whole. The national jurisdictions belonging to the Western legal tradition are mainly depicted, as well as the supranational trends that point towards a global law. Particularly, the rise of a European law is accounted for not only within the framework of the Union's legislature, but also through the development of a rediscovered ius commune that emerges from comparative studies conducted by scholars and from the creative attitude of the courts. A special attention is paid to the sources of uniform law and to the development of soft law as a means of integration of legal systems. Traditional doctrines of juridical facts and duties are finally reinterpreted as devices designed to construct a jurisprudence that extends beyond national borders.

Customary law encompasses the age old traditional practices of the people, indigenous or otherwise. These laws are flexible in nature and often ignite debate and leads to certain disagreement at local, regional or national level. The recent debate and discourse on UCC sparked many of the issues mainly concerning gender. This paper tries to highlight the contradictory position of UCC, customary law and women, tribal rights et cetera. The tribal population of the country are often thrown in the dilemma of functioning with the current issue.

One-third of the world’s population lives under personal law systems. These systems regulate family matters by applying different ‘personal laws’ ― ostensibly based on religious doctrine ― to people depending on the religious group with which they are identified. Personal law systems generally raise serious concerns relating to religious freedom, non-discrimination, familial rights and procedural rights. Despite these concerns, complex political considerations keep personal law systems in place, and thwart efforts to reform them. This paper proposes a way out of the stalemate that has dogged efforts to reform the personal law system in India, the country with the largest number of people living under such a system. This proposal entails the enactment of a uniform family law supplemented by a regime of state-recognised religious alternative dispute settlement. The paper argues that this proposal has the potential to address major concerns raised by the personal law system, provide a means of valuable recognition for religious identities, support religious practice and religious expression, promote justice for women, and enhance group autonomy. The paper also offers a number of recommendations that would help the proposed regime realise its potential. Finally, the paper indicates its significance beyond India, for other jurisdictions facing contentious issues relating to the accommodation of religious norms in family law.

This letter-paper questions the legitimacy of Article 371 of Indian Constitution after the revoking of Article 370 by the Bharatiya Janata Party (5 August 2019). The paper traces the history of all the Indian federal States, which are listed in Article 371 with a special emphasis on Jammu and Kashmir.
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This paper tries to analyse the everlooming debate of Uniform Civil Code and its compatibility in India. It takes into addressing the commonly shown reasons for the implementation of the UCC - the so called faults in Islamic Family Law and attempts to clarify the misconception.

Part IV of the Constitution of India provides for the Directive Principles of State Policy. Though these principles are non-enforceable but are indispensable in the governance of the country. One such directive principle is given under Article 44 of the Constitution which creates an obligation on the state to enact a Uniform Civil Code. Over the years various directions have been issued by the Supreme Court for its implementation. But, due to excessive politicization, it is still a distant dream. In the absence of a uniform law regarding personal matters like marriage, divorce, adoptions, etc., various personal laws are applicable to different religious communities. These laws find their source and authority in their religious texts and customs which provides for gender discriminatory practices. The paper aims to achieve a balance between Right to Freedom of Religion and Right to Equality by segregating the 'essential religious practices' and 'secular activities'.The need of the hour is to enact a Uniform Civil Code but that should be done slowly and gradually after making the people especially the minorities, aware about its scope and extent.

The Constitution of India, in Article 44, directs the state to adopt a " uniform civil code " (UCC) for the entire territory of India. Despite ongoing legal changes that bridge the differences in India's disparate group-specific family laws, the idea of one single code continues to have ethical and political appeal. It is invoked by the modernist-nationalists in the name of uniform citizenship rights irrespective of religion; by feminists who worry about group-autonomy undermining women's rights and group-specific laws dividing women on the basis of religion; as well as by the Hindu-supremacist nationalists who see the autonomy granted to minority religious groups as " minority appeasement ". This course is intended to give a historical overview of the debates around the UCC, identify the questions of law and legal theory, and explore ethical and political stakes involved in various positions in this debate. We will organize the course around four themes: secularism; gender justice, religious freedom and non-state law.

India is a secular country, secularism has been held to be part of the basic structure of
the Constitution. The basic structure put limitation on power of Parliament to amend the
constitution. India is a secular democratic republic. Freedom of Religion is core of our culture.
Even the slightest deviation shakes the social fibre. However, if religious practice violate of
human rights and taking away civil and material freedom are oppression and creates
discrimination. Therefore, a unified Code is imperative both for protection of the oppressed and
promotion of national unity and solidarity. It is clear from Art. 44 which state that the State shall
endeavour to secure for the citizens a uniform Civil Code throughout the territory of India. If the
personal law based on the religious thought will continue to operate, it would definitely cause
injustice to the community

ABSTRACT
Uniform Civil Code – The mere 3 words and the Nation breaks into hysterical jubilation and frantic wailing. These 3 words are enough to divide the nation – Politically, Socially and Religiously. This supersedes the right of citizens to be governed under different personnel laws based on their religion and ethnicity. The paper primarily talks about the concept of the UCC, its legal dimensions and its origin or where it has been derived from – that whether the UCC should be implemented or not. Further, the author tries to discuss the relationship between Uniform Civil Code, personnel laws and secularism. Also how the implementation of UCC may lead to the disintegration of the nation and the breakdown of the peace and harmony among the people. The paper also throws light on the implementation of the UCC in Goa as Goa Civil Code and how can it pave the way for the implementation of the UCC throughout the country. The author also looks at the reasons the framers of our Constitution deferred the decision to a later stage and also lays emphasis that why the word ‘enact’ was avoided and instead words like ‘endeavour’ and ‘strive’ were placed. The framers wanted the code to be enacted at such a period when each and every individual is in a position to accept and actually practice the same in their everyday life. The judgments pronounced by the Hon’ble Supreme Court in this regard are very constructive and has been discussed in an elaborate manner in this paper. The paper concludes with certain set of recommendations and conclusions. This paper attempts to weigh in all pros and cons of the UCC and also spread knowledge and make the reader inquisitive about their approach on the topic UCC.
Keywords: Uniform Civil Code, Constitution, Secularism, Personal laws, Religion.

Religion-based personal laws in the postcolonial Indian state have been the site of a virulent contest between minority rights on the one hand, and gender and child rights on the other. While enshrining a Uniform Civil Code as a constitutional aspiration, India continued the colonial policy of non-intervention in family laws of distinct religious communities, which grant an unequal status to women and children. However, the February 2014 decision of the Supreme Court in Shabnam Hashmi v. Union of India and Ors., symptomises a re-imagination of the project of 'modernising' family laws. While overruling Muslim personal law, this decision upheld the right of Muslim individuals to adopt and be adopted under the secular Juvenile Justice Act. This paper sheds light on this innovation of Indian policy, which sidesteps the landmines that are the RFL, and instead focuses on mandatory secular laws (e.g. Protection of Women from Domestic Violence Act, Prohibition of Child Marriage Act, welfare of the child principle) and " opt-in " provisions (e.g. Juvenile Justice Act), to obliquely secure the rights of women and children within families. This paper places this approach in a critical perspective, and argues that while RFL are correctly no longer the sole authorities on rights of women and children within the 'private sphere', the need for their reform is still not obviated. In doing so, the paper problematises the historical legitimization of the call of minority communities to exclude intervention of the State from RFL in the first generation of reforms post-Independence, and the entrenchment of family laws in religious silos through the second generation of reforms from the 1980s onwards. These in turn founded the ideological and strategic limitations of the current policy of " indirect reforms " , by cultivating a resistance to the elimination of patriarchal and patrilineal hierarchies within families. In conclusion, while the current model innovates a nuanced strategy of balancing minority rights with gender and child rights, India still needs to envision a fourth generation of reforms that make the religious governance of family laws child-and gender-just.

This Article posits that the Indian courts' usage of the 'essential practices' doctrine has created a uniform understanding of religion and what is fundamental to it. This has been done by imposing an interpretation of public morality rooted in a human rights discourse. By reading into religion only those practices that reinforce the values of human rights as essential, courts have problematised the perceived clash between human rights and religious practices in a simplistic manner. Part I presents an overview of the Indian jurisprudence concerning the essential practices doctrine. Building on such an understanding, Part II spells out the two components that courts have relied upon to determine what is fundamental to each religion. Thereafter, Part III underlines the problem with courts depending on spiritual scriptures to establish the core facets of religion. Part IV demonstrates the manner in which the human rights discourse flowing from the Constitution influences the pronouncements on essentiality and the underlying consistency that governs it. Finally, Part V reflects on the effectiveness of state laws regulating religious practices and the meaning that such regulations hold for the relationship between law and religion.

We all must know what does it mean by “ Uniform Civil Code” and from where the idea came from ? Uniform Civil Code is not an alien concept. Article 44 of the  Indian Constitution says, "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."  State failed to observe the Directive Principles of State Policy in this respect JUST FOR POLITICAL GAIN AND APPEASEMENT POLICY.
IF INDIA IS SECULAR IN TRUE SENSE THEN ONE MUST ACCEPT UNIFORM CIVIL CODE

Abstract
The article explores Alexis de Tocqueville’s explication of democracy as ‘civil religion’ or the new
sacred of modern times. In Democracy in America, Tocqueville analyzed democracy as a political system
as well as a moral value. The article begins with Tocqueville’s analysis of the religious roots of American
democracy. Dissociated from the affairs of the state through the principle of ‘disestablishment’, religion
became secure in civil society, whereas the concept of democracy became inviolable and ‘set apart’ as
sacred. He noted that the power of the majority acquires an inviolable character in democracy that
had the potential to turn against the very principles that it upholds. In the Indian context, the debate
around a uniform civil code (UCC) is one such issue that captures this predicament. Working out
a roadmap for Indian pluralism signposted with a constitutional commitment to equality, liberty and
fraternity has proved to be a task fraught with moral and political complexities, if not impasse. The
article argues that Tocqueville’s discovery of the role of religion in civil society, his mistrust of democratic
majoritarianism and his emphasis on understanding the ‘practice’ of democracy have something
to offer to the polarized UCC debate in India.
Keywords
Democracy, uniform civil code, pluralism, adjudication

India-one of the largest democracy has a multiparty parliamentary system, vociferous media, and vigilant NGO’s. Besides this, its traditional, cultural, religious, and linguistic edifice is based on diversity, which is cherished by all nooks and corners of India. Therefore, the above-given concepts give rise to separate identities apart from nationality, i.e. cultural identity, religious identity & regional identity, etc.

There is a very close nexus between those identities and personal laws. Compromising with the personal law may lead to an identity crisis that may not be in the interest of “Unity in Diversity”. Moreover, the Constitution of India under Part III provides for the Right to protect, propagate one’s own religion and culture which in turn means to preserve religious identity which includes practices, norms, way of life. These specifications are entirely under the ambit of Personal laws. And hence bringing into effect a Uniform Civil Code would do injustice to the provisions of the Constitution of India, and the principle of “Unity in Diversity”.

In addition to that practically implementing a single colored law for all the religions which are entirely different from each other would create a ruckus and numerous legal questions will spring out of it, as all the personal laws whether codified or uncodified, reformed or unreformed is a hindrance to the achievement of the goal of Uniform Civil Code. The problem of achieving Uniform Civil Code is not Muslim centric, rather codification of un-similar religious laws into a single mold is the real problem. There are instances of countries that have a Civil code but they also have uniformity of religion. Now India does not stand on that parameter viz., uniformity of religion.

We must change our preconceived notion that Uniform Civil Code is the solace of maintaining diversity. It is a DPSP and not a Fundamental Right for a reason, i.e. Religion is a basic Human Right under Article 18 of Universal Declaration of Human Rights, to which India is a signatory.

Now, why not make a Code, but not Uniform in nature! The purpose of Code is to consolidate laws of the same group. Why not make different Codes for different religions along with their sub-schools. In that way, we would achieve the principle of “treating likes alike” which is central to the notion of justice.

This piece of paper basically focused on personal laws in changing times. We focused on the particular part that is Uniform Civil Code in India (UCC) in constitutional perspective. After Independence it was much debated at the Indian Parliament in 1948. While Dr. B.R. Ambedkar, supported by eminent nationalists like Alladi Krishnaswamy and others favored the implementation of the Uniform Civil Code, it was strongly opposed by Muslim fundamentalists and members from other religions. It is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen. In Constitution of India under Article 44, The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. Apart from Article 44 there are other articles which accepted the principle of UCC that is Article 14, 15, 21 and 25-28. In judgment of Shah Bano case, Uniform civil code is again in publicity and it is one of the major agenda of NDA government and recently Law commission board asked a personal law board that why they are against it. In Sarla Mudgal case Supreme Court has also advocated to the implementation of uniform civil code and one of the major problems behind the implementation of uniform civil code is that whether Directive principle of state policy cannot supersede over the fundamental right because Fundamental Right is justifiable right. We also work on effects of UCC in our society.

This paper situates the impulse to criminalize triple talaq at the intersection of three interrelated debates: universal human rights through homogenized citizenship, law reforms in modern nation-states and the question of community identities in representative democracies. Even though each has historically produced different narratives of the uniformity of law, they do not account for the conflicts and contestations each of the fields produces. Analysing them in terms of the demand for a uniform civil code in India, this essay investigates the political understanding of the rights’ debate as revealed through the debate on Triple Talaq. It argues that, given the disconnection between the imagined uniformity and the actual practices of law in the everyday experience of Muslims as Indian citizens, the tangential factors that produce the banal violations of constitutional rights are framed in extra-juridical terms. Demanding that it requires an inquiry into the cultural terrain of law and the hierarchies that constitute the discourse of rights, this paper raises questions that the Triple Talaq debate poses to Indian feminism.

This paper takes up one of the most perplexing questions of our time that how should Indian Republic deal with the situation of creating a public domain of personal laws, particularly for Muslims. In personal laws, personal is mere verbatim. Personal Laws are product of larger social framework of society, and accordingly, it develops customary practices. Needless to say, society appears as a factory and produces culture, and this production cycle is not neutral to power. In this space, the central argument appears that it is no other but God that makes personal laws. Therefore, God is the final legislator, and his commands, as personal laws shall not be challenged. Needless to say, this is the central theme for even public laws in theocratic countries.
It is a question to examine that whether merely one’s belief of the sacrosanctity of personal laws should lead to their being not challenged. If this is the case, then what is the commitment and demands or arguments of different groups, that they seek legal intervention in the domain of personal laws to fill the legal vacuum and surgically examine some anti-women practices? Such practices range from the right to divorce, alimony, question of maintenance, inheritance, and qualification for witness etc. So, these demands create a situation of binaries, where one group seeks to protect practices relating to personal laws based on the cultural rights or even minority rights, to preserve and protect, practice and propagate their culture. On the other hand, a group seeks to revisit the unsettled question of past, and give them their adequate due to entitlement for citizenship.
However, this debate takes an interesting turn when cultural groups from Hindu background argue, not on the ground of persuasive logic, but others’ personal laws as breach of equality for themselves, such as their incapacity to perform polygamy, and link personal laws as lubricant for personal growth. With these motives in mind, these groups argue to regulate the personal laws so that Muslim’s male privilege could not be there. This argument is rooted in prejudice than anywhere remotely linked with rationality and sex equality. This underpinning views women as product and tools of reproduction. Resultantly, fundamentalist groups’ arguments run opposite to the females’ emancipation movements.
In light of the aforementioned issues and concerns, both historical and topical, this paper attempts to present an analysis and evaluation of personal laws in India. It begins with the investigation of history of personal laws in the context of Republican idea of India. Thereafter, it moves towards the constitutional, ideological and philosophical deliberations over personal laws, including those in the Constituent Assembly. In the third part, the paper looks at the judicialisation and politicisation of personal laws by all the three pillars of the world’s largest democracy. Lastly, the paper delves into the current political developments and debates on the decades old issue of unification of personal laws of different religious communities in India, and concludes by arguing that the unification shall be thought of in the direction of rationalisation of all personal laws and from the perspective of unifying the form rather than the substance of the laws. A feminist perspective in this direction may serve as a boon for tilting the scales of codifying personal laws from a nationalistic idea towards an idea of gender justice by making a case for optional application of cluster of reformed legislations as per women’s consent.

A two-judge Bench has ordered registration of a PIL and asked the Chief Justice to set up a Special Bench to consider gender discrimination suffered by Muslim women.
Thirty years after the Supreme Court urged the government to frame a uniform civil code to “help in the cause of national integration” in the Shah Bano case, a two-judge Bench of the court has suo motu ordered registration of a public interest litigation petition and asked the Chief Justice to set up a Special Bench to consider gender discrimination suffered by Muslim women owing to “arbitrary divorce and second marriage of their husbands during the currency of their first marriage”.
Justices Anil R. Dave and Adarsh Kumar Goel issued notice to the Attorney-General and the National Legal Services Authority of India to reply, on November 23, whether “gender discrimination” suffered by Muslim women should not be considered a violation of the fundamental rights under Articles 14, 15 and 21 of the Constitution and international covenants. The October 16 verdict refers to dozens of its judgments since the 1990s to record the court’s growing realisation that gender discrimination violated the constitutional rights of women.

Останнім часом не вщухає дискусія щодо подальшої долі Господарського кодексу України. Міноритарна група цивілістів ліворадикального толку виступають за його безапеляційну ліквідацію та нормативну консолідацію всієї сукупності приватноправових відносин в межах одного кодифікованого акту. Зазначимо що ідея запровадження «єдиного цивільного кодексу приватного життя» немає під собою будь-якого теоретичного підґрунтя. Крім того її реалізація призведе до деформації сталих принципи юридичної техніки, серед яких простота та придатність правового акту до застосування. Сьогодні ми стаємо свідками детальної структуризації приватноправових відносин, їх автономної нормативної регламентації. Прикладом є відносини в сфері IT права, медичного права і спортивного права тощо. Секуляризація Господарського кодексу України не той шлях, яким слід вирішувати проблему колізії правових актів. Тому підтвердженням є світовий досвід, зокрема досвід Франції.

Для правової системи Франції характерний дуалізм приватного права, якому присутня відокремленість правових норм в регулюванні торгівельної (комерційної) діяльності від норм цивільного права. Це форма внутрішнього розподілу, яка не порушує галузеву цілісність та дозволяє враховувати особливості правового регулювання комерційних відносин. В такому разі, відповідні комерційні правовідносини не противляться цивільним, навпаки підкреслюють певний рівень їх системної диференціації в межах єдиного цивільного права. Сформована в середні 16 століття правова традиція окремого правового регулювання відносин комерційного характеру, що обумовлено характером суспільноекономічної формації того часу зберегла свої риси й на сучасному етапі розвитку приватного права Франції.

Природа та характер цивільних відносин і комерційних (підприємницьких) відносин об’єктивно має певну специфіку їх правового регулювання, що обумовлює використання окремих правових засобів регулювання таких відносин. Але, наведене не стільки відокремлює комерційне (підприємницьке) право від цивільного, скільки специфікує його в межах такого. Така специфікація всередині системи цивільного права Франції обумовлена однорідністю комерційного (підприємницького) права на відміну від цивільного права Франції. Комерційне право Франції регулює достатньо вузьку сферу суспільних відносин, які мають власне нормативно-правове підґрунтя, яке опосередковує таку сферу.