B.A. LL.B (Hons.) Students, Panjab University, Chandigarh
The endeavor for uniformity of law in India has been an evolutionary process starting from the Vedic ages to medieval era to the British era during which many significant steps like codification of IPC, CrPC, CPC, Maintenance laws, personal laws etc. took place and the same spirit has been carried by our constituent assembly in form of Article 44 of constitution. The way in which this unification of law has been carried out and what are the quandaries left and how to solve them, all has been discussed in the following article. The odyssey towards the uniformity of laws in India is enshrined in article 44 of the Indian constitution itself which epitomizes the nation’s dedication to justice, equality and uniformity The seminal judgements of Mohammad Ahmed Khan v. Shah Bano[1] and Sarla Mudgal v. UOI[2] underscores the judiciary’s fervent call for a UCC to eradicate the legal disparities. Over the course of the Indian legal history many endeavors have been made to ensure that each one of us are governed and subject to same laws as a result of which , much of the law ( criminal and civil ) has been made or amended overtime in such a manner that most of the people are already governed by the same legal provisions no matter to which ethnicity they belong to , barring some exceptions , which makes implementation of UCC throughout India an inexorably foreordained idea.
UNIFORMITY OF CRIMINAL LAW IN INDIA
The development of criminal law as we recognize it today was founded on the plinth of British administrative experiments Regulation Act 1773 and later the Charter Act of 1833 in which for the first time the physical manifestation of legislature under governor general was conceived. It was in 1834 that First law commission was established comprising Thomas Babington Macaulay, Sir John Macpherson Macleod, George William Anderson and F Millett as Commissioners. During 1834-36, the Law Commission, under Macaulay’s supervision, prepared Draft Penal Code.[3] After subsequent review and readings, the IPC was enforced on 1 January 1862 by Amending Act VI of 1861. Since then, the IPC was carried on with sparingly few amendments, the major one being the 2013 amendment and is now repealed with the conception of Bhartiya Nyaya Sanhita, 2023 enforced from1st July 2024.
Majestic Provision of Section 63 of BNS : A Grandiose Leap towards the Harmonization of Conjugal affairs – Since the inception of the criminal code , there has been a debate relating to what constitutes as the “age of consent” in case of rape and especially “marital rape” , the same controversy was acknowledged by the Hon’ble SC in the case Independent thought v. UOI[4] in which they cited the 2016 Karnataka state amendment along with that secular legislations like – POCSO , Juvenile Justice Act etc. . and stated that there should be a harmonious construction and purposive interpretation relating to age of consent. It is to be noted that in India, the age of consent for sexual intercourse is to very extent related to the age of consent to marry. In India, the age of consent to marry is 18 years for all barring Muslims who are governed by their personal law, as per which age of marriage is 15 years. If we go by the interpretation as laid down in caser of R v. Prince[5], then the offence discussed is of strict liability. This implies that, if a Muslim woman is married at 15 years of age and performs intercourse with the husband, the husband (irrespective) of the consent of wife, will be liable for rape, which will have the impact of breaking their conjugal ties itself. This implies that in order to cure the problem presented it is highly advisable to do a harmonious construction and increase the age of consent of marriage for Muslim women to 18 years as well.
UNIFORMITY IN CIVIL LAWS IN INDIA
SUBSTANTIVE LAWS-
CONTRACTUAL LAW– The contractual laws in India are governed by the Indian contract act 1872 which came into force on first day of September 1872. The essence of contract act has been modelled on that of the English law. Before the act came into being, the contractual relations were being governed by personal laws, which include – Hindu laws (formed during Vedic, medieval, Mauryan and Gupta empire era mainly), the Islamic law (known as Aqd meaning a conjunction. It connotes conjunction of proposal {Ijab} and acceptance which is Qabul).
TRANSFER OF PROPERTY INTER – VIVOS – Transfer of property act (for brevity TPA) provides us with an enigmatic legislative history and is a remarkable example as to how subjects under the domain of personal laws can be brought under the umbrella of a legislative act.
Application of TPA on Hindus – At the time of commencement of TPA, CH II & VII were not applicable on Buddhist and Hindus. the reason for this was that, Section 13 of CH II states that property can be transferred to an unborn child as well however, this very concept was not admissible among Hindus and Buddhist during that period of time. However, m in 1916, The Hindu Disposition of Property Act was passed which provided that even Hindu and Buddhist are capable of transferring the property to an unborn child. Therefore, there remains no conflict thus, by amendment of 1929 it was made applicable on Hindus and Buddhist.
Application of TPA on Muslims – As a general rule, whole of TPA is applicable on Muslims, however as per Section 2 of the act, CH II & CH VII will not be applicable on Muslims. The reason for CH II being the same as it was in case of Hindus, the CH VII of TPA deals with Gift of property. As per TPA, in order to make a valid gift, delivery of property isn’t required. However, in case of Muslim’s, ‘Hiba’ without delivery is incomplete because of which Section 120 of the TPA provides that CH VII will not be applicable on Muslim’s.
However , it is to be noted that the hon’ble Supreme Court in case of S.M. Syed Mohammad Buhari v. Sub registrar[6] while citing judgement of Assan Ravtther and Ors v. Manaharapara Charayali[7] has explicitly stated that though Muslims have their personal law to be governed , the personal can’t be read in such a way as to undermine the remedies and important provisions of TPA , that is to say , both are to be read in conjunction and cannot be totally divested from each other.
MAINTAINANACE(CrPC/BNSS) – Though it is true that various personal laws have different provisions for providing maintenance, however the Section 125 of CrPC which is reproduced as Section 144 of BNSS provides a ray of hope in form of a legal provision which can be applied to all and is in interest of justice. The hon’ble SC in the landmark judgement in case of Mohammad Ahmad Khan v. Shah Bano[8] has explicitly stated the secular character of the legislation and how it is supplemental to the provisions contained in the personal laws and not contradictory to it. Later in the case of Daniel Latifi v. UOI[9], it can be clearly seen that though it was Section 3 of the Muslim Women ( Protection of Rights on Divorce ) Act , 1986 which was subjected to interpretation , the way in which the interpretation was done ( keeping the submissions of the petitioner in mind ) was of such kind that it reflects the Hon’ble courts will to make sure that the core principle of the Section 125 CrPC is not completely abandoned in any of the personal law . Thus, it can be stated that the Section 125 CrPC (144 of BNSS, 2023) Provides for a secular legislation which can very well be uniformly applied throughout the nation’
PROCEDURAL LAW
CODE OF CIVIL PROCEDURE, 1908 – In those days the crown courts at presidency towns and provincial courts at mofussil were governed by the different systems of civil procedures by certain rules, regulations and special acts, as applicable from time to time. The initial endeavor to establish a standardized procedural code was spearhead by Sir Charles Wood, then President of Board for the affairs of India. He tasked the Second Law Commission with crafting “a code of simple and uniform procedure” applicable universally across all courts. This directive culminated in drafting of four procedural codes intended for the civil courts of lower provinces of Bengal, the Presidencies of Madras and Bombay, and North – Western Provinces. these drafts were amalgamated and enacted as Code of Civil Procedure, 1859 was amended many times with the passing of CPC 1877, then further amendments of 1878 and 1879 and 1882 (3rd CPC was enacted) which was finally overshadowed by the CPC of 1908 and till date it is continues with few amendments.
QUANDARY OF UNIFORM LEGAL PERCEPTS IN INDIA -In intricate tapestry of India’s legal framework, the notion of uniformity remains a captivating enigma. As the diverse threads of jurisdiction and interpretation weave together, the labyrinthine paths of justice often reveal a mosaic of disparities. Some of these disparities challenging the uniformity of law in India are –
INHERITENCE LAWS – The primary legislations governing the inheritance laws in India consists of Hindu law (Hindu Succession Act, 1956 & Customary law which further consists of Daya Bhaga and Mit Akshara school), Muslim law and Indian Succession Act, 1925.
It is interesting to note that , after the amendment of 2005 to the Hindu Succession act , 1925 (Section 6) as explained in the case of Vineeta Sharma v. Rakesh Sharma[10] , If Section 6 is to be read with Section 8 of the Hindu Succession Act , any intestate Succession taking place after 09.09.2005 will be by notional partition and if the judgement in the case of CWT v. Chander Sen[11] is to be taken into consideration , if a property is inherited by notional partition , then it is to be treated as separate property and not joint property.
Muslim succession on the other hand follows Shariat law and a complex system known as ‘Doctrine of Aul and Radd’. It is to be noted here that these provisions are very complex and rigid in nature which hinders the process of smooth disposal of cases. Therefore, it is highly recommended that these laws (like what was done with Hindus in 1950s) should be codified and brought along the lines of HAS, 1956 and ISA, 1925. It is to be noted that if the ‘obiter dictum’ in the case of Danial Latifi v. UOI[12] is to be taken into consideration, then any change in Muslim personal law (or any personal law for that matter) in interest of justice, equality and in furtherance of Article 44 of constitution cannot be regarded as violation of article 25 unless otherwise proved.
UCC OF UTTRAKHAND: A BEACON OF CONSTITUTIONAL PROMISE
The implementation of the Uniform Civil Code (UCC) in Uttarakhand marks a most important step towards the constitutional aspiration of Article 44. Whilenprovisions—such as those on live-in relationships and marriage registration—remain contentious, the law is thoughtfully drafted and aligns with several recommendations of the 22nd Law Commission. If successfully implemented, it could set a transformative precedent for India’s legal landscape, it can be an ‘Eureka’ moment for the legal framework of India.
CONCLUSUION
Thus , on the basis of above discussion it can be reasonably concluded that on most of the subjects , the laws are more or less uniformly applicable on all parts of India and those which are not uniform can be put on an equal pedestal like the rest of the laws for instance in the way presented in this article as well as through taking into consideration views of various Supreme Court Judgements and Law Commissions reports ( barring some extremely backward tribal areas) . Let us not forfeit this auspicious juncture to consolidate our nation’s legal edifice with unerring consistency and equitability.
[1] AIR 1985 SC 945
[2] 1995 SCC (3) 635
[3] Without Injustice to any colleagues of TB Macaulay on Indian Law Commission, the Draft Penal Code may be attributed to Macaulay. “The illness of two of three colleagues threw the work entirely on me” wrote Macaulay. From: Letter to Lady Trevelyan 15 June 1837 in Lady Trevelyan, Miscellaneous Work of Lord Macaulay, Vol I , Harper, 1880, p 417
4AIR (2017) 10 SCC 800
5 L.R.2 Cr. Cas. Res. 154 (1875)
[6] AIR 2014 (12) CTC 138
[7] AIR 1972 KERELA 27
[8] Ibid
[9] AIR (2001) 7 SCC 740
[10] (2020) AIR 3717 (SC)
[11] AIR 1986 SC 1752
[12] AIR 2001 SC 3958
Blog By : Arshdeep Singh Bassi and Kunal
B.A. LL.B (Hons.) Students, Panjab University, Chandigarh
