Appointment of Arbitrator in proceeding under UNICTRAL Model

Law

Submitted To:

Mr. Parvez Rajput, Faculty, Alternative Dispute Resolution

Submitted by:

Taruna Shandilya

Roll No.-180

Section-B

Semester- VI. B.A.L.LB. (Hons.)

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Hidayatullah National Law University, Post Uparwara, Abhanpur,

New Raipur – 493661 (Chattisgarh)
 Declaration

I, Taruna Shandilya hereby declare that, the project work entitled, ‘Uniform Civil Code: Can it
be Adopted in India?’ submitted to H.N.L.U., Raipur is record of an original work done by me
under the able guidance of Dr. Avinash Samal , Faculty Member, H.N.L.U., Raipur.

Taruna Shandilya

Roll No.- 180

Section B

SEM VI

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 Acknowledgements

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard
work and honesty. This research venture has been made possible due to the generous co-
operation of various persons. To list them all is not practicable, even to repay them with words is
beyond the domain of my lexicon.

This project wouldn’t have been possible without the help of my teacher Dr. Avinash Samal,
Faculty, Dept. of Political Science at HNLU, who had always been there at my side whenever I
needed some help regarding any information. He has been my mentor in the truest sense of the
term. The administration has also been kind enough to let me use their facilities for research
work; I thank them for this.

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 Contents

Declaration.......................................................................................................................................2

Acknowledgements..........................................................................................................................3

Introduction......................................................................................................................................5

Objectives of Study..........................................................................................................................7

Methodology of the Study...............................................................................................................7

Debate during British Rule..............................................................................................................8

Need for Uniform Civil Code........................................................................................................10

Judicial Opinion on Uniform Civil Code.......................................................................................13

Concluding Observations...............................................................................................................16

References......................................................................................................................................17

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 Introduction

Uniform Civil Code generally refers to that part of law which deals with family affairs of an
individual and denotes uniform law for all citizens, irrespective of his/her religion, caste or tribe.
The need for a uniform civil code is inscribed in Article 44 (Article 35 in the draft constitution).
This article is included in Part IV of the Constitution dealing with the directive principles of state
policy. The legal nature of the Directive Principles is such that it cannot be enforced by any court
and therefore these are non judicial rights. The Constitution further calls upon the State to apply
these principles in making laws as these principles are fundamental in the governance of the
country. Article 44, which deals with the Uniform Civil Code states: “The State shall endeavor to
secure for the citizens, a uniform civil code throughout the territory of India”. The objective of
this article is to effect an integration of India by bringing all communities into a common
platform which is at present governed by personal laws which do not form the essence of any
religion.

The term Uniform Civil Code implies the same set of secular civil laws to govern all peoples
irrespective of their Religion, Caste and tribe. The areas covered under it are the Laws related to
Marriage, Divorce, Adoption, and Inheritance and acquisition and Administration of property.
Uniform Civil Code is a mandate upon the state under article 44 of the Constitution as directive
principle of state policy. As it is provided under Article 37 of the Constitution that directive
principles of state policy are not enforceable by the Court of Law. But this fact does not
undermine the importance of the directive principles. Just after Independence the Circumstances Page5

were such that it was not feasible to impose a Uniform Civil Code on the citizens. That is why it
has been covered under the directive principle of state policy.

When India attained independence and the issue of Uniform Civil Code (UCC) arose, much was
debated at the Indian Parliament in 1948. While the founding father of our constitution and
Chairman of the Constitution Draft Committee, Dr. B.R. Ambedkar, supported by eminent
nationalists like Gopal Swamy Iyenger, Anantasayam Iyengar, KM Munshiji, Alladi
Krishnaswamy Iyer and others favored the implementation of the Uniform Civil Code; it was
strongly opposed by Muslim fundamentalists like Poker Saheb and members from other
religions. On 23rd November 1948 a Muslim member, in Parliament, gave an open challenge
that India would never be the same again if it tried to bring in Uniform Civil code and interfere
with Muslim personal law. Earlier, the Congress had given an assurance that it would allow
Muslims to practice Islamic personal Law and the architects of the Constitution, therefore, found
a compromise by including the enactment of a Uniform Civil Code under the Directive
Principles of State Policy in Article - 44. Distinguished members like Shri Minoo Masani, Smt.
Hansa Mehta and Rajkumari Amrit Kaur put in a note of dissent saying that one of the factors
that has kept India back from advancing to nationhood has been existence of personal laws,
based on religion, which keep the Nation divided into watertight compartments in many aspects
of life. They were strongly in favour of the view that Uniform Civil Code should be guaranteed
to the Indian people within a period of five to ten years. But even after sixty-one years, because
of perverse secularism and perverted communalism, Uniform Civil Code has not come into being

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 Objectives of Study

The broad objective of the study is to study the concept of Uniform Civil Code. The specific
objectives or the interrelated objectives of the study are as follows:

 To study the debate on UCC during British rule,

 To analyze the need for a UCC.
 To study the judicial opinion regarding the importance of UCC.

Methodology of the Study

This project work has been carried out following the descriptive analytical approach. It has been
made keeping in mind the aim to establish the growing political influence of the RSS. An
attempt has been made to portray the same in a chronological and systematic order. Thus, the
focus of this project is to analyze the factors and events that led to the rise of the RSS.

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 Debate during British Rule

The debate for a uniform civil code dates back to the colonial period in India. The Lex Loci
Report of October 1840 emphasised the importance and necessity of uniformity
in codification of Indian law, relating to crimes, evidences and contract but it recommended
that personal laws of Hindus and Muslims should be kept outside such codification. 1According
to their understanding of religious divisions in India, the British separated this sphere which
would be governed by religious scriptures and customs of the various communities (Hindus,
Muslims, Christians and later Parsis). These laws were applied by the local courts
or panchayats when dealing with regular cases involving civil disputes between people of the
same religion; the State would only intervene in exceptional cases. Thus, the British let the
Indian public have the benefit of self-government in their own domestic matters with the Queen's
1859 Proclamation promising absolute non-interference in religious matters. 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.

Throughout the country, there was a variation in preference for scriptural or customary laws
because in many Hindu and Muslim communities, these were sometimes at conflict; 2 such
instances were present in communities like the Jats and the Dravidians. The Shudras, for
instance, allowed widow remarriage—completely contrary to the scriptural Hindu law. The
Hindu laws got preference because of their relative ease in implementation, preference for such Page8
a Brahminical system by both British and Indian judges and their fear of opposition from the
high caste Hindus.] The difficulty in investigating each specific practice of any community, case-
by-case, made customary laws harder to implement. Towards the end of the nineteenth century,
favouring local opinion, the recognition of individual customs and traditions increased.

1
Anil Chandra Banerjee (1984). English Law in India. Abhinav Publications. p. 134
2
Sarkar, Sumit; Sarkar, Tanika (2008). Women and Social Reform in Modern India: A Reader. Indiana University
Press. 
The Muslim Personal law or Sharia law, was not strictly enforced as compared to the Hindu law.
It had no uniformity in its application at lower courts and was severely restricted because of
bureaucratic procedures. This led to the customary law, which was often more discriminatory
against women, to be applied over it. Women, mainly in northern and western India, often were
restrained from property inheritance and dowry settlements, both of which the Sharia
provides.Due to pressure from the Muslim elite, the Shariat law of 1937 was passed which
stipulated that all Indian Muslims would be governed by Islamic laws on marriage, divorce,
maintenance, adoption, succession and inheritance.

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 Need for Uniform Civil Code

Article 44 of the Indian Constitution speaks of the responsibility of the state to endeavor to
provide a Uniform Civil Code for all citizens throughout this country. Despite more than 57
years of Indian independence we have failed to implement this directive principle. India unlike
other nations is an amalgamation of diverse people who follow their own distinct faiths,
religions, customs and traditions.

The framers of the Constitution realized that the unity of the nation could be threatened if they
introduced the Uniform Civil Code soon after independence. But that was a different period just
after the communal riots of 1948. Even to this day, several enactments remain which are
unfavorable to the minorities and against the principles of natural justice and equality read under
articles 21 and 14 respectively. Without a Uniform Civil Code we will not be able to justify our
tag of the world’s greatest democracy.

Further, the spheres of marriage, divorce, adoption, guardianship, inheritance etc falls under the
concurrent list of constitution Hence it is quite explicit that unification of family law is quite
permissible under the Constitution.

In Gurdayal Kaur v. Mangal3 Singh the High Court of Punjab held that Article 44 can't be
enforced under the guise of fundamental right. Also in State of Bombay v. Narasuappa Mali 4 ,
Justice Gajendragadkar held that Article 44 by necessary implication recognizes the existence of
different codes applicable to Hindus and Muslims in matters of Personal Law and permits their
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continuance unless the State succeeds in its endeavor to secure for all citizens a uniform Civil
Code.

Socially, the common masses that fluctuate from one point to another, unsure of the benefits of a
system in a diverse polity that is India. Religiously, the divide between the majority Hindus and
the minorities dominated by the Muslims.

3
AIR 1968 Punj 396.
4
AIR 1952 Bomb. 85
A uniform Civil Code relating to Personal Law does not mean the extension of Hindu Personal
Law to other communities or the suppression of Hindu Personal Law by the Personal Law of any
of the other communities. It involves, Says Prof. G. C. V, Subbarao 5 "the evolution of a rational
system removing the injustice, particularly to women and children inherent in those ancient
systems and the replacement of all existing personal laws by such a rational system." In soon
after SC changed the attitude to stimulate the central govt. into activities that will lead to goal of
uniform civil code. This is quite marked in the landmark case of Mohd. Ahmed v, Shah Bano 6
where the Supreme Court held that Sec. 125 of CriminalProcedure Code applies to all Indians
generally and overrides the personal law, if there is any conflict between the two. The lack of
common code has affected the stand of women in society.

This can be understood while observing few quick facts to understand the problem:-

 In Muslim personal law, they are allowed to have four wives, can give divorce by saying
talaq three times, and after divorce the ex-husband is not responsible for ex-wife's
maintenance In Hindu inheritance rights, sons, and not daughters, can inherit the property
till recently.
 Or that a wife has fewer rights than her in-laws over her husband's property, but a
husband has more rights than his in-laws over his wife's property.
 In Christian law; a husband can get a divorce on grounds of adultery, while a wife has to
prove adultery and cruelty.
 Christians are not allowed from willing property for charitable and religious purposes 7.In
Islam, polygamy is permissible but not in other religions.8
 According to the government statistics, only 5.2% Muslim men are polygamous while Page11
5.8% Hindus, 9% Scheduled Caste, and 14% tribal’s have more than one wife.
 In Punjab it is a common practice that all brothers marry one woman so that their
property is not divided, and it is permissible by the Indian constitution.

5
G. C. V. Subbarao, Uniform Civil Code: Reality or a Tantalizing Illusion (1987)11 M. L. J, p, 1.
6
(1985) 2 SCC156
7
www.milligazette.com/.../20060208-indian-muslims.html
8
http://mutiny.in/page/2/?s=politeindian
Currently, Hindus, themselves, have different Hindu Personal Laws in every state of India. A
Sikh is allowed to carry a dagger (Kripan); if others carry it, they will be arrested by the police.
There is separate tax system for Hindu undivided families not for non-Hindu undivided families
(Hindu Undivided Family code).

Thus by observing the above facts we find that there is so much verity in thepersonal laws that it
results into lot of differentiation among the people. Therefore to bridge the gap the need of
implementation of Uniform Civil Code was felt. Another arguments of the Proponents of the
Uniform Civil Code is that implementation of UCC will creates equality.

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 Judicial Opinion on Uniform Civil Code

The judiciary in India has taken note of the injustice done to the women in the matters of many
personal laws. It has been voicing its concern through a number of judgements indicating the
necessity to have uniformity in personal matters of all the citizens. In the case of Mohd Ahamed
Khan vs. Shah Bano Begum9pertaining to the liability of a Muslim husband to maintain his
divorced wife beyond iddat period, who is not able to maintain herself, the Supreme Court held
that Section 125 Cr. P. C which imposes such obligation on all the husbands is secular in
character and is applicable to all religions. In Ms. Jordan Deigndeh vs. S.S. Chopra, D Chinappa
Reddy, J. speaking for the court referred to the observations of Chandrachud, C.J. in Shah
Bano’s case and observed as under: “It is also a matter of regret that Article 44 of our
Constitution has remained a dead letter.”

Again in Sarala Mudgal vs Union of India10, a division bench of the Supreme Court consisting
of Kuldip Singh and R.M. Sahai, JJ strongly advocated the introduction of a Uniform Civil Code
in India. In this case the Supreme Court held that conversion of a Hindu male to Islam only for
the purpose Of contracting bigamous circumvents Section 494 of Indian Penal Code. Such
marriages have been declared as bigamous and void by the court. The court after referring to
various precedents on the point, categorically held that till uniform civil code is achieved for all
the Indian Citizens, there would be an inducement to a Hindu husband who wants to enter in to
second marriage while the first marriage is subsisting to become a Muslim. Here the Court was
pointing out the injustice done to the first wife, legally wedded.
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The Apex Court pursued the same line in Lily Thomas etc. v. Union of India and others 11 and
held: “The desirability of Uniform Civil Code can hardly be doubted. But it can concretize only
when social climate is properly built up by elite of the society, statesmen amongst leaders who
instead of gaining personal mileage rise above and awaken the masses to accept the change.”

9
AIR 1985 SC 945
10
AIR, 1995 SC 1531
11
AIR 2000 SC 1650
In a Uniform Civil Code which is the cherished constitutional goal, if we have a single ground of
divorce viz. that the marriage has broken down irretrievably, the scope of any controversy is
ruled out.12 Where factually marriage has broken down irretrievably, no useful purpose will be
served in finding out the guilt or innocence of the parties and in such cases law proceeds to cut
off the tie.13Analytical discussion on these issues shows that there should be one single ground of
divorce, viz., irretrievable breakdown of marriage. 14 Irretrievable breakdown of marriage and
divorce by mutual consent should be made uniformly a ground to dissolve the marriage of
spouses irrespective of their religious faiths. The critical analysis of different existing grounds of
divorce contained under various divorce laws shows more uniformity and less contrast inthem.
Therefore, the conceptual analysis of the different existing ground of divorce paves the way to
push up the matter of uniformity in them legislatively. In Naveen Kohli v. Neelu Kohli, the
Supreme Court, clearly and strongly while permitting dissolution of thirty year old mismatch,
urged the Government of India to amend Hindu Marriage Act in order to make Irretrievable
break down of marriage a valid ground for divorce. The court held that “irrevocable break down
of marriage” as a ground for divorce was prevalent in many other countries and recommended
the Union of India to seriously consider bringing an amendment in Hindu Marriage Act, 1955 to
incorporate irretrievable break down of marriage as a ground for the grant of divorce. The court
ordered to send a copy of judgment to the Secretary, Ministry of law and justice, Department of
legal affairs, Government of India for taking appropriate steps.15

All major religions thus have their own laws that govern divorces within their own community,
and there are separate regulations under the Special Marriage Act, 1956 regarding divorce in
interfaith marriages. Under a common civil code, one law would govern all divorces.

Significantly, in the matter of a Uniform Civil Code, India‟s binding obligation under Page14
international law have also started attracting attention of legal and other experts. Satyabrata Rai
Chawdhuri, rightly observed in 200316:- Since different treatment for any religious group is
violative of the UN Covenant on Civil and Political Rights and the Declaration on the Rights to

12
Paras Diwan and Peeyushi Diwan, Law of Marriage and Divorce, 47 (1997).
13
Shiv Sahai Singh, Unification of Divorce Laws in India, 376 (1993).
14
Ibid, at 377.
15
2006 (4) SCC 558
16
Satyabrata Rai Chawdhuri, “A Common Civil Code : It is a Constitutional Obligation” 10, The Tribune, 30 July
2003.
Development adopted by the world conference on Human Rights, it is hoped that Parliament will
frame a common civil code without further delay, divesting religion from social relations and
personal law.

One should not forget that nationhood is symbolized by one Constitution, a single citizenship,
one flag and a common law applicable to all citizens and India‟s obligations under international
law and requirements of various international instruments relating to the human rights of women
such as Universal declaration of Human Rights, 1948 and the Declaration on the Elimination of
Discrimination Against Women, 1967, also demand that even if one rules out Article 44 the
Union of India cannot evade its international obligation to make laws to remove
alldiscrimination against women.17 For that, just as 27 years ago, the Equal Remuneration Act,
1976 was enacted for the benefit of all working women, “The next logical step is to make a law
to secure equal rights to women. An Equal Right Act would largely achieve the objective of
common civil code. In the alternative, parallel reform of each personal law to give effect to the
Human Rights declared by the United Nation would help in the emergence of common pattern of
personal laws, paving the way for uniform code, and a beginning could be made in the direction
but it seems that the Political will is lacking.”18

The Article 44 of the Constitution of India requires the state to secure for the citizens of India a
Uniform Civil Code throughout the territory of India. As has been noticed above, India is a
unique blend and merger of codified personal laws of Hindus, Christians, Parsis and to some
extent of laws of Muslims. However, there exists no uniform family related law in a single
statutory book for all Indians which is universally acceptable to all religious communities who
co-exist in India.

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17
Jyoti Rattan, “Uniform Civil Code in India: A Binding Obligation Under International And Domestic Law” 46 JILI
577 (2004).
18
P.P. Rao “Uniform Civil Code is a Necessity: An Optional Common Law can be Enacted” 10, The Tribune 6 Aug.
2003
 Should This be Adopoted in India?

- The execution of Uniform Civil Code will promote real secularism. As of now, India has
selective secularism which suggests that in some areas people are secular while in others they are
not. A uniform civil code will prompt all Indians to follow the same laws. At the same time, it
will not restrict the freedom of people to pursue their religion.

- The UCC laws will bridge the existing differences. As of now, the Muslims have freedom to
have more than one wife in India. Also, the unwed Christian mother cannot have the
guardianship of her child without the consent of father. The personal laws differ in terms of
inheritance, family, marriage and related factors.

- The main motive behind the Uniform Civil Code is to provide more rights and dignity to
women. Indian society is extremely misogynistic and patriarchal as it allows conventional rules
to exist to rule the family life. As a result, Indian women are still subject to mistreatment and
subjugation.

- The Uniform Civil Code is followed by all the progressive countries. It is a sign that a country
has come above the religious and caste politics.

- Personal laws designed under the religion label are nothing but a means for the powerful people
to exploit weaker sections of the society. The panchayats continue to confer punishments that are
against India’s constitution. Human rights are breached through female foeticide and honor
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killings across India.

- A UCC will help in minimizing vote bank politics that various political parties indulge in
before general elections. 
 Concluding Observations

From the material put forth above, it can be reasonably concluded that a Uniform Civil Code, as
has been reiterated time and again in this paper, is vital and can be adopted by this vast country.
We need to homogenize the personal laws relating to marriage and succession, inheritance and
maintenance. This not only promotes national integration, but also prohibits the evils of
discrimination against the minorities, which is the current need of India. A uniform law to all its
citizens is a dream cherished by reputed legal scholars, members of the Constituent Assembly
and judges alike. These people like other educated Indians realize the urgency of common laws
to ensure the steady progress of the entire nation without exception of any particular factions of
the society. For over 57 years since the time of the commencement of the Constitution, the UCC
has remained in cold storage. We can procrastinate no longer. The government has been
overpowered by the illusion of appeasement of the minorities. Little do they know that by not
implementing the UCC, they are actually promoting untold human rights violation and gender
discrimination.

The new civil code formulated should be step forward in converting the goals of our
constitutions into reality and also forwarding the directive principles of state
policy.JusticeKrishna Iyer has aptly put it: "It should be Indian, not Hindu. Nor should any
Islamic group be allowed to be a law unto itself. Some of the finest principles of Islamic
jurisprudence may find their way into the Uniform Civil Code even as some of the noblest
conceptions of the Hindu in the area of Family Law will become the common estate for all Page17

Indians19.” While implementing the UCC throughout the country we have to take into the
consideration of the fact that the problems of the minority group should be properly addressed
like insecurity, disenfranchisement, of complete loss of identity and marginalization within
Indian society. It is because a common civil law cannot be successful until and unless it gets
supports and acceptance from different communities. At the same time while enacting the UCC
only modern laws should be incorporated in it.

19
3 VR Krishna Iyer, "The Shah Bano Case, The Constitutional and the Court" (1986) vol.13 JBCI1 at 2.s
 References

This project report would not have been completed without the following valuable sources of
information:

1. jstor.org
2. indianexpress.com
3. mha.nic.in
4. indiankanoon.com
5. And the various articles and newspaper reports cited in this research work

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