Debates on having a Uniform Civil Code (UCC) have been going on in India for a long period, dating back to the colonial era. In October 1840, the first Law Commission in British India submitted its “Lex Loci” report, emphasising the need and importance of having uniformity in the codification of Indian law relating to crimes, evidence, contracts, etc. It also recommended keeping the Hindu and Muslim laws outside of this codification. Furthermore, The Queen’s Proclamation of 1859 promised non-interference on matters of religion. During the drafting of the Constitution in the post-colonial era, leaders including Jawaharlal Nehru and B.R. Ambedkar pushed for UCC. However, the provision of the UCC was added to the Directive Principles of State of Policy-DPSP. Since then, various legislations, such as The Hindu Code Bill, The Hindu Succession Act, The Hindu Marriage Act, Minority and Guardianship Act, Special Marriage Act, etc., have been introduced. In the historic Shah Bano Case of 1985, the Supreme Court further pushed for UCC, which applies for all citizens irrespective of their religion. Changing governments have made attempts to implement UCC but in vain.
What is the Uniform Civil Code (UCC)?
Uniform Civil Code (UCC) simply is One Nation, One Legislation. Every citizen, regardless of their religious belief, shall be treated equally and uniformly according to the national civil code. Currently, all religions in India have their own laws on matters including marriage, divorce, maintenance, inheritance, adoption, and succession of the property. With the UCC, these civil matters will be under one set of secular laws. Recently, Delhi High Court backed UCC saying that it would ensure equal rights to the marginalised and vulnerable sections of the society. It would also ensure gender equality which ultimately reduces the gender gap and promotes national integration. Uniform Civil Code is mentioned in Article 44 of Part IV of one of the Directive Principles of States Policy-DPSP, which states “that State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.” These principles are non-justiciable, as mentioned in Article 37, but they are fundamental in governance.
While the nation debates on the need for UCC, Goa has adopted the Portuguese Civil Code in the form of common family law. The Code, which was introduced in the 19th century during Portuguese rule, has not been reinstated since its liberation. Though it allows equal division of property among children, abolishes polygamy among the Muslim community, allows equal ownership on properties by married couples, etc., it has been criticised for not being “completely uniform in nature.” For instance, while it allows bigamy for Hindu males under some specific circumstances mentioned in the Codes of Usages and Customs of Gentile Hindus of Goa, it completely abolishes polygamy for other religious communities.
Is The Uniform Civil Code Necessary in India?
Being a culturally diverse country, the question of the necessity of UCC in India has surfaced many times. Countries like France, the UK, the USA, Australia, etc., have common law for their citizens. But the challenge for India is its diversity. The Supreme Court and High Courts have called for the implementation of the Uniform Civil Code several times by pointing out the principle of UCC that is enshrined in the Constitution of India. The framers of the Constitution felt the need for UCC to achieve equality and justice through it but did not want to push for it since the circumstances were unsuitable due to the traditional practices and customs that people closely followed (Mohanty,2021). The 2018 report of the Law Commission also suggested that UCC is “neither necessary nor desirable at this stage”.
Opinions on the need for UCC are mixed. The arguments favouring UCC state that it integrates India by bringing citizens together under a single civil code. It breaks the barriers of caste and religion and takes the country towards the path of progress. In time, it reduces vote bank politics which dominates the Indian elections. Supporters of UCC also argue that while minority communities have agreed on uniform criminal law, why not do the same for uniform civil code? They point out the scenarios of minorities in countries that have adopted similar practices. Furthermore, UCC ensures gender equality by removing religious life that restricts the basic rights of women and other gender minorities.
On the other hand, the challengers of Uniform Civil Codesay that since UCC is a direct principle, it cannot be enforced through a court. Also, it interferes with Article 25 that guarantees freedom of religion. But Article 25 states that “Nothing in this article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any financial, economic, political or other secular activity which may be associated with religious practice.” Minority religious communities feel UCC as an infringement of their religious freedom and pressing for reforms by the majority community.
Implementation of UCC is a mammoth challenge due to its nature and misconception. Misinformation on UCC makes the minority communities believe it as a way of imposing the views of the majority on them. Lack of political will is another major challenge. While some national parties support UCC, other regional and national parties and religious bodies oppose the move. To the question on the need for UCC, the answer is still uncertain.
Relevance of Article 44 of the Indian Constitution
The Directive Principles of State Policy are a set of guiding principles for the state to govern the country, and it is the duty of the state to enforce these principles while making the law. The relevance of the Uniform Civil Code has been questioned during various judgments considered by the Supreme Court. The most important instance is the Shah Bano case of 1985. The Court ruled in favour of Shah Bano under the “maintenance of wives, children and parents” of Section 125 of the All India Criminal Code. The section applies to all citizens irrespective of religion and was challenged by her husband. The Court said UCC is a “dead letter”. A similar verdict was repeated in Jorden Diengdeh v. S.S. Chopra for accommodating a uniform code of marriage and divorce. In the Sarla Mudgal v. Association of India, the Court demanded UCC and held that basic rights identifying with the religion of individuals from any network would not be influenced thereby.
Pluralism and Secularism in India
The Preamble of the Indian Constitution states that India shall be a “sovereign socialist secular democratic republic.” According to the Oxford dictionary, secularism is ‘the principle of separation of state matters and religion.’ Indian secularism is entirely different from western secularism. In India, both state and religion often interact with each other in prescribed legal and judicial parameters, while western secularism completely separates state and religion. Pluralism, on the other hand, is upholding the beliefs, values, and ideology of not only a religion but also of other groups.
In the largest democracy in the world, while in secularism, the state does not appease any religious or political group, pluralism embraces both political and social inclusiveness. The state promotes these ideologies for peaceful co-existence, acceptance, and accommodation of interests of every individual of the society. Leaders such as Nehru and Gandhiji embraced India’s cultural diversity as the nation’s strength. However, the definition of pluralism changed by subsequent governments. With the recent rise of Hindu nationalism, pluralism has become a part of the national identity. Political leadership plays an important role in promoting pluralism. Excluding minority communities and playing vote-bank politics can also lead to fragmentation of a diverse society.
Protection of minority rights, incorporated by the framers, upholds religious pluralism by upholding the diversity of the country. However, DPSP is sometimes criticised for being against secularism and being pluralist, since the approach towards it can vary from government to government. Post-colonial India has accepted religious pluralism to keep up with the principle of the Constitution. Though India is a secular state, it adopts the features of religious pluralism.
Differences in Laws and Practices Among Religious Communities
Being the lengthiest Constitution in the world, the Indian Constitution defines all aspects of the country, from its federal structure to religion. For different religions, family laws are different and distinct. This system was started in 1772, by Warren Hastings, by creating separate provisions for Hindu Law and Muslim Law. After independence, a uniform law was brought for custody and guardianship, adoption, succession, domestic violence, and child marriage.
Muslims in India follow the Sharia Law or Islamic Law as their personal law. The portion of the fiqh-the Islamic jurisprudence, applicable to Indian Muslims as personal law, is termed Mohammedan law. Though it is largely uncodified, Mohammedan Law has the same legal status as other codified statutes.
Christians have the Christian Law which is mostly based on specific statutes and is a separate branch of law. It covers all Christians in India and their personal matters, such as family. The Christian Law is based on English Law, and it has sub-branches for divorce, custody, adoption, etc. In recent years, there have been considerable changes in Christian Law on Succession and Divorce. The Indian Divorce (Amendment) Act of 2001 brought considerable changes in the grounds available for divorce.
Similar to the Christian Law, the law for Hindus also developed as a separate branch. In the first Parliament, an attempt was made to bring a common Hindu Code. Though it was not successful at the time, various changes in the Law were brought through modern-day legislation. Hindu Law also comprises religious communities such as Jain, Sikh, Buddhist, Lingayat, Brahmos, Arya Samajist, and Santhals of Chota Nagpuri, if not varied by custom.
The Parsi community settled in India centuries ago, fearing persecution in Persia. Parsi Marriage, a form of contract, is governed by The Parsi Marriage and Divorce Act, 1936. The Act talks about formalities for marriage as well as for divorce. Bigamy in the Parsi community is punishable under the Indian Penal Code. The Act also recognizes the right of the wife to maintenance – both alimony pendente lite and permanent alimony. Under the Indian Succession (Amendment) Act, 1991, both sons and daughters of Parsi have an equal share in their parent’s properties.
All religious laws are rooted in their history and centuries-old codes. The major issue caused by different personal laws among different religious communities is that it is largely discriminatory against women in terms of inheritance, marriage, and divorce. For instance, Sharia Law allows unilateral divorce and polygamy for men and deprives Muslim women of maintenance after the divorce. Before the Lata Mittal case of 1985, Hindu women did not have joint-heirship for their paternal property. This was according to Mitakshara, a school of Hindu law which deals with succession (Patel,2017).
In the Christian community, while women cannot obtain a divorce from their husbands on the grounds of adultery, husbands can do so on the same grounds. An amendment was made to Christian Divorce Act 1869 in 2016. Parsi daughters cannot ask for heirship if they are married to a non-Parsi, and a non-Parsi wife can only get half of her husband’s property. Women are also discriminated against in guardianship of children by these laws. These personal laws also lead to honour killing due to inter-caste and inter-religious marriages, disputes on properties, increasing adultery, polygamy, etc. (Patel, 2017).
Seventy-four years after independence, India is still looking forward to implementing the Uniform Civil Code. But, implementing and maintaining UCC is not an easy task. Fear, among minority communities, of undermining their rights and beliefs is a huge constraint in executing UCC. Awareness must be raised among the citizens about the Uniform Civil Code, its domains, and the impact it can have on their lives. UCC should be implemented keeping in mind the best interests of religions and should be able to protect the rights of all citizens, regardless of their caste, religion, gender, sexual orientation, etc. It is a sensitive topic, and hence, religious groups should be consulted to make it inclusive. Bringing in legal experts can ensure that UCC maintains evenness. Implementing UCC could be a difficult process due to its sensitive nature, even though it is not impractical. With past judgments, it is understandable that there is a need for UCC in our country, and many people are open to this idea. It should be a tool to bring an end to the struggles faced by citizens over their personal matters due to differences in law. There is a need to change and modify legislation according to the changing time, and UCC can be the tool to bring about equal protection and equal treatment of citizens with dignity.