DEVELOPMENT AND APPLICABILITY OF UNIFORM CIVIL CODE IN INDIA UNDER ARTICLE 44 OF THE INDIAN CONSTITUTION

ABSTRACT –

The term “Uniform Civil Code” refers to the general body of secular civil laws that will apply to all Indian citizens without regard to their caste, language, or tribe. in India a set of unrelated religious laws concerning contracts, the transfer of property, the law of the land, and other civil laws. Laws relating to marriage, divorce, inheritance, and the acquisition and administration of property are among the other areas of law that will be covered by it. The state is required by DPSP article 44 to create a uniform civil code. The issues raised during the Uniform Civil Code discussion led to this study report’s creation. The evaluation relates to the grassroots situation of the communities today about the urgent need. The idea of a single civil code is questioned in this essay, as well as its viability for the majority of Indians. The UCC of Goa is used in this research to analyze the difficulties of such a code and discuss alternatives to a single code’s utopian vision.

KEYWORDS –

Uniform Civil Code (UCC), Secularism, Religious Minority, Constitution, Article 44, India, Nation, Democracy

INTRODUCTION –

India, the second-most populous nation in the world and the biggest democracy has a diversified population. The linguistic, cultural, and religious identities reflect the variety of the nation. Religions have significantly impacted Indian politics and society and serve as the foundation for Indian culture. Religion is a way of life in India. It is an essential component of Indian tradition as a whole. According to the 2011 All India Religion Census Statistics, 99% of the population identifies as religious, with 82% of those people practicing Hinduism, 14.23% Muslims, and 2.30 % Muslims. The Indian constitution was drafted while considering this long-standing diversity in India.

The preserved soul of the country is reflected in the preamble of the Indian constitution. It aims to establish India as a democratic, secular, and sovereign nation.

Yet, because of the country’s religious plurality and political sensitivities, the implementation of UCC has been a sensitive subject in India. Any attempt to enact a UCC is viewed as interfering in religious affairs because the Indian Constitution permits personal laws based on religion. Political parties have also leveraged the UCC controversy to win over members of their various religious communities.

Despite these obstacles, various initiatives have been made to build a UCC in India. The Hindu Code Bill of 1956 was the first attempt at codifying the laws governing Hindu marriage, divorce, inheritance, and adoption. Conservative organizations fiercely opposed the law, which ultimately passed in a watered-down form.

The Supreme Court of India subsequently ordered the government to take action to establish a UCC in 1985, noting that its absence was a “major barrier to the creation of a homogenous nation.” Yet, no real action was taken. Thus, it becomes essential to make this research paper to come up with better clarity on past, current, and expectable future situations on the application of the Uniform Civil Code in India.

LITERATURE REVIEW AND RESEARCH GAPS-

Our constitution seeks to advance fraternity while ensuring respect for the individual and unity in diversity by securing citizens’ justice, freedom, and fairness. It includes the elements that make up the Constitution’s heart. Every arrangement listed in the preamble is working towards a specific goal in this way: fraternity ensuring mutual respect for one another.

  • Upendra Baxi’s, “The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda” (2014)[1]

This book offers a thorough analysis of the UCC controversy in India, covering its historical roots as well as current developments. Baxi analyses the UCC’s supporters and detractors as well as the effects of its adoption on Indian society. He also talks about the judiciary’s function in the UCC discussion.

  • Vasudha Dhagamia’s “Uniform Civil Code: History, Implications, and Minority Perspectives” (2016)[2]

This article addresses the effects of the UCC’s implementation on minority communities and gives a brief history of the UCC in India. Dhagamia contends that achieving gender equality does not require the UCC and that it may even have a detrimental effect on the rights of minorities and women.

  • Kumari Jayawardhana’s “Uniform Civil Code: A Feminist Critique” (2020)[3]

A feminist critique of the UCC is presented in this article. According to Jayawardhana, the UCC is a patriarchal initiative that will strengthen women’s subjugation. In addition, she contends that the UCC may potentially harm women’s rights and is not required to attain gender equality.

  • Anupama Saxena’s “Uniform Civil Code in India: An Analysis” (2022)[4]

A study of the UCC discussion in India is given in this article. According to Saxena, there are no simple solutions to the UCC’s complicated problems. In addition, she contends that the UCC may potentially harm women’s rights and is not required to attain gender equality.

As reviewed in Smt. Sarla Mudgal, President, … vs Union Of India & Ors on 10 May 1995[5]

A clear directive under Article 44 of the Indian Constitution calls for the introduction of a unified personal law as a critical step towards national consolidation. “The State should endeavor to secure for the citizens a consistent civil code across the territory of India.” On defending the introduction of the Hindu Code Bill in the Parliament in 195 rather than a unified civil cod Pandit Jawahar Lal Nehru said, “I do not think that at the current time, the timing is appropriate in India for me to try to get it through.” Even 41 years later, it would seem that the current Rulers are not motivated to take Article 44 out of the cold storage where it has been kept since 1949.

In Ms. Jordan Diengdeh vs S.S. Chopra on 10 May 1985,[6] it was discussed that

CHINNAPPA REDDY, J., read out the Court’s Order. A Constitution Bench of this Court had to emphasize the necessity of giving Article 44 of the Constitution, which states that “The State should endeavor to ensure for the inhabitants a uniform civil code across the territory of India,” some life just the other day. The current instance is yet another that draws attention to the urgent requirement for a consistent civil code. The facts of the current case reveal the utterly unacceptable state of things caused by the absence of a unified civil code. Let’s briefly discuss the case’s facts before referencing Chandrachud, C.J.’s observations in the most current case that the Constitution Bench decided (Mohd Ahmed Khan v. Shah Bano Begum & Ors.) There is no proof that any official work has been done to draw up a common civil code for the nation. The case for national integration will be helped by a unified civil code since it will eliminate divergent allegiances to competing legal systems. Making unnecessary concessions on this matter won’t likely alarm any community. Unquestionably, the State is responsible for ensuring that the nation’s residents have access to a standard civil code, and it has the legislative authority to do so.

RESEARCH METHODOLOGY-

The acquired quantitative and qualitative data will be subjected to a thorough analysis utilizing the proper research instruments and techniques. In order to understand the subtleties and difficulties in implementing Article 44, legal analysis and interpretation of the provision as well as associated constitutional provisions will be conducted. A comprehensive and nuanced investigation of the creation and applicability of the Uniform Civil Code in India is ensured by this triangulated method. The research paper is based on a doctrinal method of study.

CRITICAL ANALYSIS –

The idea of a Uniform Civil Code (UCC) and the historical development of Article 44 of the Indian Constitution are the subject of numerous discussions, legal advancements, and arguments. Gaining an understanding of this progression will help one better understand the situation and difficulties associated with implementing a UCC in India.

Before Independence, the need for a Uniform Civil Code (UCC) dates back to the colonial era, when politicians and social reformers attempted to change personal rules that were founded on religious practices and conventions. Well-known individuals like Ishwar Chandra Vidyasagar and Raja Ram Mohan Roy pushed for a common civil law that would apply to all religious communities.

The Constituent Assembly discussed the idea of a UCC in great detail when drafting the Indian Constitution. The framers’ intention for a UCC in India is shown in Article 44 of the Directive Principles of State Policy. The goal of the founders was to gradually replace individual laws with a unified civil code to establish a peaceful and forward-thinking community.

The discussion over the UCC persisted after India gained its independence. The Special Marriage Act, of 1954, established by the government in the 1950s, allowed for civil marriages and set the stage for a uniform code. Nonetheless, religious personal laws coexisted alongside the Act and it did not cover every facet of personal laws.

The conversation surrounding the UCC has been greatly influenced by the Supreme Court of India. The court stressed the necessity of a UCC in cases such as Mohd. Ahmed Khan v. Shah Bano Begum (1985) to guarantee gender justice and equality. Subsequent rulings, like John Vallamattom v. Union of India (2003) and Sarla Mudgal v. Union of India (1995), emphasized the significance of advancing towards a UCC while upholding religious freedom.

Political resistance has been encountered during the adoption of a UCC, especially from religious communities who fear that their laws and customs may be violated. The UCC has drawn criticism from political parties and organizations that speak for certain religious traditions, stressing the need to protect religious plurality and identity.

One of the Directive Principles of State Policy is the vision of a UCC found in Article 44 of the Indian Constitution. These ideas are not legally binding; rather, they serve as suggestions for the government.

According to some legal experts, the UCC ought to be recognized as a fundamental right under Articles 21 (right to life and personal liberty) and 14 (right to equality). Many legal experts contend that because personal rules based on religious conventions frequently favor specific genders or religious groups, a UCC is required to protect the principles of equality and non-discrimination. They contend that a UCC would grant everyone the same chances and rights, regardless of their religious affiliations.

The UCC’s opponents argue that it might violate the religious freedoms protected by the Constitution’s Articles 25 (religious freedom) and 26 (right to administer religious matters). Personal laws, they contend, are essential to religious identity and must be upheld, particularly for communities of color. Numerous legal professionals stress that to address issues of gender justice and equality, personal laws must be changed. They contend that unfair practices found in some personal laws, such as polygamy, unilateral divorce, and unequal inheritance rights, ought to give way to a UCC that guarantees gender equality and fairness.

Careful legislative consideration and consensus-building among political parties, religious organizations, and other stakeholders are necessary for the implementation of a UCC

CONSTITUENT ASSEMBLY DEBATES ON 23 NOVEMBER 1948-

Future legislatures could try to create a standard civil code or they could choose not to. Every area of civil law will be governed by the Universal Civil Code. A spot on the Concurrent List is sought to be secured for contracts, procedures, and property to ensure uniformity. The most significant contribution of British legal scholarship in this area has been to standardize these issues. We don’t advance much from the British-influenced administration in our nation. Why should you distrust a domestic government significantly more than one that has been in power abroad? Why should our Muslim friends have more trust and faith in British rule than in democratic rule, which will undoubtedly take all people’s religious precepts and beliefs into account?

While rising to support the revisions, my friend Mr. Hussain Imam questioned whether it was feasible and desirable to have a consistent Code of laws for a country this size. For the simple reason that practically every element of human interaction is covered by a consistent code of laws in this country, I must admit that I was astonished by that assertion. The Criminal Process Code and the Penal Code together make up our nation’s consistent and comprehensive criminal code. The Law of Transfer of Property, which governs property relationships and is in force all across the nation, exists. Then there are the Negotiable Instruments Acts, and I can list many laws that show this nation essentially has a Civil Code that is uniform throughout.

Its content and applicability to the entire nation. Marriage and Succession are the only provinces that Civil Law has so far been unable to encroach upon. Those who want Article 35 to be a part of the Constitution want to bring about that change since it is this tiny area that we haven’t been able to penetrate yet. Because we have already covered the majority of the subject matter covered by the country’s Uniform Civil Code, I find the debate about whether we should undertake such a thing to be somewhat inappropriate. So, it is too late to consider whether we could pull it off. As I said, we have already achieved it.

In furtherance Mohd. Ahmed Khan v. Shah Bano Begum[7]

Until the Shah Bano case in 1985, there was a less frequent debate between secular and religious authorities on the need for a uniform civil code. Bano, a 73-year-old woman, asked her husband Muhammad Ahmad Khan for maintenance. After 40 years of marriage, he had granted her a unilateral divorce through triple Talaaq (saying “I divorce thee” three times) and refused her ongoing maintenance. Muslim Personal Law permits this type of discriminatory divorce against women. She first received maintenance after a local court’s 1980 decision. Khan, who is a lawyer, appealed this judgment to the Supreme Court, claiming that he had complied with all of his legal requirements by Islamic law. In 1985, the Supreme Court issued a decision favoring Shah Bano. under the Indian Penal Code[8] (Section 125) “support of spouses, children, and parents” provision, which applied to all citizens regardless of faith. It also suggested that a standard civil code be established. In addition to her case, two other Muslim women had previously received maintenance in 1979 and 1980 under the Penal Code.

THE WAYS TO ACHIEVE UNIFORMITY WITHOUT A COMMON CIVIL CODE –

1. The legislature has time and again aspired to bring secular laws applying to all irrespective of religion. This is a positive approach to bring about constitutional uniformity, section 498a in the Indian Penal Code is one such example. Child Marriage Prohibition Act, 2006 under which a marriage is voidable[9] at the option of any of the contracting parties who was a child at the time of marriage is also applicable to all the religions irrespective of their religion. Recently more secular rights over the adoption of child is given to the people who do not have any such provision in their laws. Shabnam Hashmi V Union of India[10] ., the Supreme Court of India declared that the right to adopt a child by a person as per the provisions of the Juvenile Justice Act[11] would apply to all the citizens of the country and would prevail over all personal laws and religious codes in the country. This is the way forward to the uniformity of nation where laws are being made non-discriminatory and the injustice within the personal laws are worked with through different central laws instead of one single law taking the sole basis of religious identity which is in the personal laws of the people.

2. The onus is upon the court to interpret the law in a more flexible manner making it gender just. The courts shall be forthcoming about the constitutionality of personal laws. In Section 6 of the Guardianship Act,[12] it is stated that the father is the lawful guardian, and only in his absence is the mother’s legal guardian. Now the situation where the father is either incapable, incompetent, drunkard or not committed to the welfare of the child, the Supreme Court remains silent on the constitutionality of the law and only reads it down a little stating that if the father is incompetent mother can be lawful guardian. Under Section 15 of the Hindu Succession Act[13] if a married woman is married or dies without making a will then the family and the husband have better claim over her property than her parents. An example[14] of a court actively participating in examining the constitutionality of a law and striking down an unconstitutional law was by Kerala High Court which struck down section 10[15] of the Divorce Act for it being discriminatory on the grounds of sex. After this judgment, several other High Courts struck down the law, and faced with this judicial turmoil the parliament in 2001 amended[16] section 10 making the grounds equal for both men and women. This is the stand Courts should take while deciding matters of personal law and shying away from the responsibility and nudging the legislature to change the law only would not suffice the purpose.

3. The judiciary in its judgments has always nudged the legislature to make a unified civil code for all the people for national integration and it is the legislature that can dispense justice to all through the way of a common law. Formulation of the law and its implementation will require acceptance from the communities themselves and the resistance is the reason which further has consequences if such a unified law is implemented in one go. The communities coming up for the change in the personal law and their flexibility in acceptance of such change is more important than the state dictating to the citizens how to live.

CONCLUSION AND SUGGESTION –

Article 44 of the Indian Constitution directs the state to endeavor towards a Uniform Civil Code (UCC) for all citizens irrespective of religion, which would replace the personal laws based on the customs and traditions of various religions. However, despite the provision being present in the Constitution since its inception, no significant progress has been made in its implementation.

The debate surrounding the implementation of the UCC in India is primarily divided along religious lines, with many religious communities opposing the idea of a uniform law that overrides their laws. However, proponents of the UCC argue that it would promote gender equality, secularism, and national integration.

Over the years, there have been several attempts to implement the UCC in India, but they have not been successful due to various reasons, including religious opposition, lack of political will, and the belief that the implementation of the UCC would lead to the erosion of cultural diversity in the country.

In recent years, there have been renewed calls for the development of a UCC, particularly in the wake of cases such as the Shah Bano case[17] and the Triple Talaq case, which highlighted the need for gender justice and equality before the law. However, the issue remains contentious, and political parties continue to be divided on the issue.

In conclusion, the development of a UCC in India under Article 44 of the Constitution remains a complex and politically sensitive issue. While there have been some attempts to introduce a common set of laws, the issue remains unresolved, and any future progress will depend on the political will of the government and the support of various religious communities.

In past years, there has been renewed interest in implementing the UCC, with the Modi government expressing its support for the idea. However, despite this, no concrete steps have been taken toward its implementation.

In conclusion, while Article 44 of the Indian Constitution provides for the development of a Uniform Civil Code, the road to its implementation has been long and fraught with obstacles. The debate surrounding the UCC in India is likely to continue for the foreseeable future, with both sides holding strong views on the issue. Therefore, the argument about whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question of whether we could do it. As I say, we have already done it.

  • MAAHI ATEY

SYMBIOSIS LAW SCHOOL, PUNE


[1] Mandal, S. (2018) Uniform civil code: History, theory, politics, Academia.edu. Available at: https://www.academia.edu/37091702/Uniform_Civil_Code_History_Theory_Politics (Accessed: 27 November 2023).

[2] The Uniform Civil Code: If not by 2024, then when? (2022) Firstpost. Available at: https://www.firstpost.com/opinion/the-uniform-civil-code-if-not-by-2024-then-when-10999911.html (Accessed: 27 November 2023).

[3] Joseph, S.E. (2023) A feminist review of uniform civil code debate, Maktoob media. Available at: https://maktoobmedia.com/opinion/a-feminist-review-of-uniform-civil-code-debate/#:~:text=Feminist%20activists%20today%20contend%20that,imposition%20of%20a%20uniform%20code. (Accessed: 27 November 2023).

[4] Surjuse, P. (2016) Uniform civil code, Academia.edu. Available at: https://www.academia.edu/28422665/UNIFORM_CIVIL_CODE (Accessed: 27 November 2023).

[5] AIR 1995 SC 1531

[6] 1985 AIR 935, 1985 SCR Supl. (1) 704,1985 SCC (3) 62, 1985 SCALE (1)952 

[7] 1985 (1) SCALE 767; 1985 (3) SCR 844; 1985 (2) SCC 556; AIR 1985 SC 945

[8] The Indian penal code arrangement of sections – legislative, https://lddashboard.legislative.gov.in/sites/default/files/A1860-45.pdf (last visited Nov 27, 2023).

[9] Prohibition of Child Marriage Act, 2006, India Code (1970), https://www.indiacode.nic.in/handle/123456789/2055?sam_handle=123456789%2F1362 (last visited Nov 27, 2023).

[10] Admin (2023) Shabnam Hashmi v Union of India, air 2014 SC 1281 – legal vidhiya, Legal Vidhiya –. Available at: https://legalvidhiya.com/shabnam-hashmi-v-union-of-india-air-2014-sc-1281/ (Accessed: 27 November 2023).

[11] (No date) Indian kanoon – search engine for Indian law. Available at: https://indiankanoon.org/ (Accessed: 27 November 2023).

[12] (No date a) Section 6 in the Hindu minority and guardianship act, 1956 – Indian kanoon. Available at: https://indiankanoon.org/doc/39958047/ (Accessed: 27 November 2023).

[13] Chirmulay, V. (2021) Section 15 of the Hindu Succession Act 1956: Gender Bias and the need for reform, Live Law. Available at: https://www.livelaw.in/columns/section-15-of-the-hindu-succession-act-1956-hindu-female-intestates-property-179726#:~:text=The%20section%20dictates%20the%20order,succeed%20to%20such%20property%2C%20respectively. (Accessed: 27 November 2023).

[14] (No date a) Omprakash & Ors vs radhacharan & ors on 5 May, 2009 – Indian kanoon. Available at: https://indiankanoon.org/doc/1651663/ (Accessed: 27 November 2023).

[15] (No date a) The code of civil procedure, 1908 arrangement of sections – india code. Available at: https://www.indiacode.nic.in/bitstream/123456789/2191/1/A1908-05.pdf (Accessed: 27 November 2023).

[16] (No date a) The repealing and amending act, 2001 – India code. Available at: https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2001-30.pdf (Accessed: 27 November 2023).

[17] 1985 (1) SCALE 767; 1985 (3) SCR 844; 1985 (2) SCC 556; AIR 1985 SC 945

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