Contemporary societies are often caught in the throes of debate and reform on various fronts, especially concerning issues deeply intertwined with culture, tradition, and religion. The Uniform Civil Code (UCC) has emerged as a contentious topic, advocating for a standardized set of laws governing personal matters for all citizens, irrespective of their religious affiliations. Simultaneously, the discourse around Triple Talaq has intensified, sparking conversations on gender equality, justice, and religious autonomy. Furthermore, the entry movement to religious places such as Sabarimala, Haji Ali Dargah, and debates surrounding practices like Santhara have illuminated the complexities of balancing religious freedoms with constitutional rights, often pitting tradition against modernity and individual rights against collective beliefs. These contemporary issues serve as crucibles for testing the boundaries of secularism, human rights, and cultural plurality in diverse societies.
Uniform Civil Code (UCC)
Article 44 of the Constitution states that the State shall endeavour to secure for citizens a uniform civil code throughout the territory of India. It essentially means a common set of laws governing personal matters for all citizens of the country, irrespective of religion.
Rationale behind implementing Uniform Civil Code in India
- It will divest religion from social relations and personal laws and will ensure equality in terms of justice to both men and women regardless of the faith they practice.
- There will be uniform laws for all Indians with regard to marriage, inheritance, divorce etc. Student Notes:
- It will help in improving the condition of women in India as Indian society is mostly patriarchal whereby old religious rules continue to govern the family life and subjugate women.
- Various personal laws have several loopholes, which are exploited by those who have the power to do so. Due to uniformity, such loopholes will cease to exist or will be minimised
- Informal bodies like caste panchayats give judgements based on traditional laws. UCC will ensure that legal laws are followed rather than traditional laws.
- It can help in reducing instances of vote bank politics. If all religions are covered under same laws, politicians will have less to offer to communities in exchange for their votes.
- It will help in integration of India as a lot of animosity is caused by preferential treatment by the law in favour of certain religious communities.
Challenges in Implementing Uniform Civil Code
- Family laws or personal laws of certain minority communities are quite divergent from the majority belief systems. Any attempt at bringing about a common law would lead to the curbing of or putting an end to either of the community’s practices.
- They fear that any attempt at homogenization would result in their customs getting overshadowed by the majority customs or beliefs that are advocated as progressive, but violative of their sacred faith.
- For example, the Hindu Minority and Guardianship Act, 1956, upholds the superior right of a father as the natural guardian for both boys and unmarried girls. The prior right of the mother is recognised only for the custody of children below five. However, Muslim law recognises the absolute right of a mother to the custody of her minor children (Hizanat). Even the father cannot deprive her of it.
- Also, certain dominant religious organisations have further aggravated the issue by issuing statements such as UCC would not allow minorities to retain practices as per their faiths. They will, instead, have to abide by one common law across the country, which Hindus already abide by.
Therefore, some challenges being anticipated and also advocated are:-
- Implementation of UCC might interfere with the principle of secularism, particularly with the provisions of Articles 25 and 26, which guarantee freedom relating to religious practices.
- Conservatism by religious groups, which resist such changes as it interferes with their religious practices.
- It is difficult for the government to come up with a uniform law that is accepted by all religious communities. All religious groups- whether majority or minority have to support the change in personal laws.
- Drafting of UCC is another obstacle. There is no consensus regarding whether it should be a blend of personal laws or should be a new law adhering to the constitutional mandate.
Triple Talaq
- Instant triple talaq is a form of Islamic divorce practiced in India, whereby a Muslim man can legally divorce his wife by stating the word talaq three times in oral, written or more recently electronic form.
- The practice has raised several controversies and discussions regarding issues of justice, gender equality, human rights and secularism.
- In Shayara Bano vs Union of India case (2017), the Supreme Court declared the practice of triple talaq as unconstitutional by a 3:2 majority.
| Positive Outcomes of the Judgement | Negative outcomes of the judgement |
| It ensures equality by upholding fundamental rights guaranteed by Articles 14 and 21 of the Constitution. | It goes against Article 26 of the Indian Constitution, which guarantees freedom in matters of religion; every religious denomination and sect (including Hanafi school, which was followed by Shayara Bano). |
| It ensures gender equality especially for Muslim women as the provision of triple talaq resulted in feelings of insecurity among them. Arbitrary talaq also impacted their social status and dignity. | Opponents contend that it is not the court’s role to “determine the true intricacies of faith”. Also, there is contention that Muslim Personal Law (Shariat) Act 1937, has not codified talaq-e-bidat (triple talaq) into a statutory law, thus, it does not fall under Article 13. |
| It upholds core constitutional provisions, as fundamental rights guaranteed by the Constitution override the provisions of personal laws | The challenge is to inform the Muslim masses that the abolition of the practice does not go against the Shariah, but it is closer to the original tenets of Islam. |
Entry Movements to Places of Religious Worship Led by
Women’s Organizations
Shani Shignapur Temple: A group of women called the Bhumata Rangaragini Brigade led a movement to break the 400 year old tradition of the Temple barring women from entering its inner sanctum. Eventually, the Bombay High Court stated that “No law prevents women from entering a place of worship and if men are allowed, then women too should be permitted.”
Sabarimala Temple
- In Sabarimala temple, Kerala, women between the age of 10 and 50 are not allowed to enter the temple, since they are in the menstrual age group. A 1991 Kerala High Court judgement supported the ban on women entry. However, the case was referred to a three judge bench of the Supreme Court to deem whether excluding menstruating women constitutes “essential religious practice.”
- The Supreme Court in a 4:1 judgment gave the verdict that women were to be allowed entry to the temple and that there should be no discrimination on grounds of religion. The court, further, found such a ban on women entry to the temple to be a violation of Article 17 (form of untouchability)
- In Sep 2019, the SC re-considered its judgment on grounds of “constitutional morality”, and has referred the case to a higher bench. It will now, not only consider this case, but all cases allowing women’s entry into temples, etc.
Haji Ali Dargah
- In 2012, the Dargah Trust barred women from entering the sanctum sanctorum of the Haji Ali Dargah. The trust cited verses from the Quran and Prophet Mohammed to claim that Islam does not permit women to enter dargahs/mosques.
- The trust also claimed the fundamental right “to manage its own affairs” under Article 26 of the Indian Constitution. This was opposed by several women’s organizations. Eventually, the Bombay High Court lifted the ban saying it contravenes the Constitution and women should be allowed entry “at par with men”. It also held that the Trust cannot enforce a ban “contrary to the fundamental rights” (i.e. Art 14, 15 and 25) enshrined in the Constitution.
Santhara
- It refers to a Jain practice, where followers voluntarily face death by gradually reducing food & liquid intake. This practice was challenged in the Nikhil Soni Versus Rajasthan High Court Case, on two grounds:-
- The right to life does not include the right to die. Hence, it is not protected under Article 21.
- It does not constitute an essential practice, and hence, is not protected under Article 25.
- The judgment was challenged in the Supreme Court, which lifted the stay on Santhara based upon the arguments that the HC judgment was based on an incorrect observation on Jainism.
- Also, they have criminalized the philosophy, and they do not have the right to determine which practice is essential and which is not. Also, the court argued that equating santhara with suicide was not logical as santhara was not impulsive, but an act of spiritual purification. The SC, further, said that Jain scholars were not consulted by the HC.
FAQs
Q: What is the Uniform Civil Code (UCC), and why is it a contentious issue in India?
The Uniform Civil Code is a proposal to replace personal laws based on religious practices with a common set of laws applicable to all citizens irrespective of their religion. It’s contentious because it challenges traditional religious laws and customs, particularly in matters like marriage, divorce, inheritance, and adoption.
Q: What is Triple Talaq, and why has its legality been a subject of debate?
Triple Talaq refers to the practice in some Muslim communities where a husband can divorce his wife by pronouncing “talaq” (divorce) three times, often in a single sitting. Its legality has been debated due to concerns over gender equality and women’s rights, as it allows for instant and irrevocable divorce, often leaving women vulnerable.
Q: Why have there been controversies surrounding the entry of women into religious places like Sabarimala, Haji Ali Dargah, and the practice of Santhara?
The controversies arise from traditional practices and beliefs that restrict or regulate the entry of women into certain religious places. For example, in Sabarimala, there’s a ban on women of menstruating age entering the temple. In Haji Ali Dargah, there was a ban on women entering the inner sanctum. Santhara is a Jain religious practice of voluntary fasting until death, which has faced criticism for its ethical implications.
Q: What are the arguments for and against implementing the Uniform Civil Code in India?
Proponents argue that a UCC would promote gender equality, secularism, and national integration by providing a common legal framework for all citizens. They believe it would modernize personal laws and eliminate discriminatory practices. Opponents, however, argue that it could undermine religious freedom and cultural diversity by imposing uniformity on diverse religious communities, potentially leading to social unrest.
Q: How have legal judgments and government interventions shaped the discourse on Triple Talaq and entry movements to religious places?
Legal judgments, such as the Supreme Court’s ruling declaring Triple Talaq unconstitutional, have been pivotal in advancing gender justice and upholding constitutional values. Government interventions, like legislation criminalizing Triple Talaq, have aimed to protect the rights of women and curb discriminatory practices. Similarly, court rulings on the entry of women into religious places have sparked debates on the balance between religious freedom and gender equality, prompting societal reflection and legal reforms.
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