Bridging The Gap: Understanding The Uniform Civil Code Through The Lens Of The Tribal Communities

JAHNVI MALHOTRA, BVIMR

ABSTRACT

President Droupadi Murmu is the first tribal person in the country to hold the position. It Is undoubtedly a milestone that 75 years after Independence a person from the tribal community has been nominated as the President. There are around 104 million tribal people, constituting 8.6 percent of India’s population. The Government in India is set to implement the Uniform Civil Code in the country, which is being heavily opposed by tribal communities across the country. The primary objective of the UCC is to establish uniformity in civil laws relating to marriage, divorce, and inheritance. Amidst the UCC onboard, the tribal populations, known for their rich diversity and unique traits, find themselves obliged to adhere to standardized civil codes even in their personal affairs. Their main cause of worry is that the UCC will infringe on sociocultural practices and customary laws.

INTRODUCTION

India is known for its rich diversity, which includes -cultural, linguistic, religious, ethnic, and geographical diversity. The country is home to numerous languages, religions, cuisines, festivals, traditions, and landscapes, making it a melting pot of different cultures, for which our constitution provides a right to every citizen. When a right provided to Indian nationals is violated, the law provides a course of action that must be taken. The Indian legal system highlights various types of law in India, covering Criminal Law, Civil Law, and Personal laws. Personal laws refer to the legal frameworks which apply to individuals, based on their religion in matters relating to marriage, divorce, inheritance, adoption, and maintenance. Personal laws are known to be a of India’s cultural and religious diversity, The mere existence of personal laws underscores the coexistence of secular legal systems alongside following the personal religious laws within a democratic framework. The Personal laws in India are said to be discriminatory. Some Personal laws negatively affect women eg. In the case of Parsi personal law- If a Parsi woman marries someone from a different religion, their children are not accepted as part of the Parsi community. However the same does not apply to a Parsi man if he gets married outside the Parsi community. UCC is one where a common set of civil laws replaces personal laws.

HISTORY AND CONSTITUTIONALITY OF UCC

Pre-Independence –

In the Colonial era, The Lex Loci Report of October 1840 emphasized uniformity in the codification of Indian law, relating to crimes, evidence, and contract. Thereafter it also recommended that the personal laws should be kept aside from the codification and there should be no interference of the government in religious matters.

Post Independence-

In 1950, during the drafting of the constitution, Dr BR Ambedkar introduced the Uniform Civil Code. However, because of the opposition of religious fundamentalists, UCC was added as a Directive Principles of State Policy under Article 44.

Part IV, Article 44 of the Constitution states that “The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India”. However, Article 37 of the Constitution itself makes it clear that the DPSP “shall not be enforceable by any court”. This indicates that even though our constitution itself believes that a Uniform Civil Code should be implemented, it is not implemented mandatorily.

LANDMARK JUDGEMENTS

In these cases, UCC has been a topic of extensive discussion and Deliberation-

Shah Bano Begum vs Mohd. Ahmed Khan (1985)-

Shah Bano, a Muslim woman, filed a petition seeking maintenance from her husband after he divorced her. The case revolved around the interpretation of Section 125 of the Code of Criminal Procedure, which provides maintenance to wives, children, and parents. Supreme Court of India, in its judgment, held that Muslim women are entitled to maintenance under Section 125, irrespective of personal laws. The court emphasized the importance of gender equality and the need to protect the rights of Muslim women. The case raised questions about the clash between personal laws and constitutional rights, the need for gender equality, and the broader debate surrounding the implementation of a Uniform Civil Code in India. This raised questions about the compatibility of personal laws with the principles of equality and non-discrimination enshrined in the Constitution. This case contributed to the ongoing discussions and debates surrounding the UCC, as it demonstrated the challenges and complexities involved in codifying diverse personal laws into a single legal framework. However, the government under pressure from Muslim Scholars had to pass- The Muslim Women’s (Right to Protection on Divorce) Act in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.

Daniel Latifi and Another Vs UOI (2001)

The Muslim Women’s Act (MWA) was challenged because it violated Articles 14, Article 15, and Article 21. The Supreme Court held the law as constitutional and uniformity of sec 125 Crpc. It held that the amount received by a wife during the iddat period should be large enough to maintain her in the future as well.

Shayara Bano vs UOI (2017) – The Triple Talaq case

The Supreme Court held that the practice of triple Talaq among Muslims was unconstitutional. This case highlighted the need for UCC to ensure gender equality and protect vulnerable Muslim Women

UCC IN UTTRAKHAND

Uttarakhand has become the first State in India to have a Uniform Civil Code.

The Uniform Civil Code of Uttarakhand, 2024; Notified on 13th March 2024, after the assent of the President applies to the whole of Uttarakhand and the residents of the UK who reside outside the K. It is legislation to establish a common set of personal laws governing matters like marriage, divorce, adoption, inheritance, and maintenance for all citizens of Uttarakhand, irrespective of their religion, gender, caste, or sex. It has kept tribals out of its ambit and has declared a complete ban on practices like halala, iddat, and talaq. Under this, If a person is found committing Halala, there is a provision of three years of imprisonment or a fine of ₹1 lakh or both under UCC. The Bill compromising 392 sections under seven schedules is passed in the state. The children born out of a live-in relationship will be considered as a legitimate child under UCC. The UCC Act in Uttarakhand has received a wide range of reactions both positive and negative. The All India Majlis-e-Ittehadul Muslimeen president Asaduddin Owaisi said the UCC is “an attack” on the religious and cultural rights of Muslims. He claims that it imposes a Hindu code on all citizens and neglects the personal laws practiced by different communities by questioning the constitutionality of the UCC, claiming it to be violative of Article 25 and Article 29, which guarantee freedom of religion and cultural rights. On the other hand, the Chief Minister of Uttarakhand claims it to be ‘Historic’ for eradicating harmful practices, especially those targeting women.

UNIFORM CIVIL CODE AND TRIBALS OF THE UK

In Uttarakhand, UCC will not apply to Scheduled Tribes. They have their traditional rights protected under Section 21. The population of ST is around 3%-4% of the total population of the state. None of the laws constituting the Hindu Code, apply to Scheduled Tribe communities because of the constitutional protection enjoyed by Scheduled Tribe communities under the Fifth and Sixth Schedules of the Constitution. Laws relating to the customs and practices of ST communities can only be made applicable to them with the approval of the Governor of the state. In 2023, when Prime Minister Narendra Modi made a push for a UCC, there was strong opposition from the Adivasi communities across the nation, especially in Jharkhand. Likewise in Nagaland, the state assembly passed a resolution against the UCC.

Assam will be the third state after the K and Gujrat to adopt UCC. Chief Minister Himanta Biswa Sarma himself has promised to exclude the tribal communities when the state brings its own UCC.

WHY IS THE TRIBAL COMMUNITY AGAINST UCC?

A Tribal Community is a social group composed of numerous families, clans, or generations with shared ancestry and language who are generally isolated from the rest of the human community. Tribals may have concerns about the Uniform Civil Code because it could potentially impact their unique customs, traditions, and cultural practices. Many tribal communities have their own distinct legal systems and customary laws that have been followed for generations. The implementation of a UCC might be seen as a threat to their way of life, eg. Under their traditional practices, the land is passed down through the maternal line, ensuring the preservation of ancestral lands and maintaining the community’s connection to their territory. However, if a Uniform Civil Code were to be implemented, it might enforce a different set of laws that prioritize a patrilineal system of inheritance. This could disrupt the existing customs and practices of the tribal community, potentially leading to conflicts and loss of their traditional land rights . So for the sake of protecting the rights and emotions of the Tribal community, Uttarakhand has decided to exclude the Scheduled Tribes. However, tribal customs and practices also end up being discriminatory towards women. One such case is of Madhu Kishwar v State of Bihar (1996), where the Supreme Court showed evident sympathy for a Tribal woman who had been dispossessed of her property by her relatives but had to refrain from striking down the customary laws that enabled this.

CONCLUSION

The Uniform Civil Code resonates with one country and one rule. It is explicitly mentioned in Part 4, Article 44 of the Indian Constitution. It is a Directive Principle of State Policy and is yet to be enforced all over the country. The tribal communities express the worry that the UCC’s adoption may dilute their customs and personal rights, endangering their ability to maintain their traditional identity. The community decided to take action and asked the Law Commission to revoke the UCC proposal because they thought it might jeopardize their customs. In a nutshell, government interventions are needed to combat the concerns of the tribal community. The Government can offer special aid and rights by addressing the growing fear among tribes. The government should engage in consultations with tribal communities and their leaders to understand their concerns and specific needs related to the implementation of a UCC. Their perspectives should be incorporated into the decision-making process so they can be well represented. Governments could also enhance and secure tribal cultural diversity by promoting their ethos, norms, values, and religious practices through exhibitions at various government levels to showcase India’s rich plurality and heterogeneity and for the empowerment of the Adivasis.