Abstract
Our nation is diverse, implying that every religion is practiced and respected here. Every religious community has personal laws which regulate their religion and its related aspects like succession, marriage, divorce, adoption etc. The Part III of the Indian Constitution which discusses fundamental rights, highlights the freedom to propagate any religion provided to every citizen of the country. On the other hand, Uniform Civil Code which is also known as “One Nation, One Law” is a part of the Indian Constitution under Article 44 of Part IV which deals with the “Directive Principles of State Policy”. So, the conflict is between the diverse nature of the nation and the equality of genders and religions. Implementation of UCC can remove the inequality and discrimination among religions which shall make the work of legislation much easier but it will have a great impact on personal laws that have originated from cultures, values and norms. The paper will discuss the historical background of the Constituent Assembly Debate on the Uniform Civil Code. It will also point out the pros and cons of implementing the Uniform Civil Code along with relevant judgments. At last, the paper will contain a conclusion and critical analysis of the impact of the Uniform Civil Code on personal laws.
Keywords: Equality, Personal Laws, Marriage, Religion, Diversity, State
Introduction
Uniform Civil Code is defined in Article 44 of the Indian Constitution under Directive Principles of State policy which says that the state must secure a Uniform Civil Code for the residents throughout the region of India. It is a piece of legislation that revolves around the concept of making a uniform law for all religions to attain uniformity, secularism and equality. Our country is diverse and as a consequence of this, there are different religions and values which are followed by a particular section of society. Personal laws are there to regulate different religions and cover aspects like marriage, divorce, adoption, inheritance etc. related to one’s religion. Unlike public laws, personal laws are distinctive for every religion because they are supported by scriptural laws that supply different norms to the personal relations of people of different religions. Over time, these norms got statutory recognition with numerous enactments and legislations[1]. In the middle of this, implementing UCC is a very debatable and difficult task for the legislators because it aims at providing a similar platform and law to practice all religions. It shall create a conflict between freedom of religion and equality before law and the right to equality. Makers and supporters of UCC contend that UCC provides uniform laws and not a uniform method of practising the religion. They said that the main objective of implementing UCC is to eliminate different personal laws and to establish a homogeneous structure of laws. It will eventually help in abolishing any kind of discrimination against women or any vulnerable section of society that occurs due to unlike and inadequate laws in the Indian Legal System. It is very vital to acknowledge the positive as well as negative impacts of UCC before taking it into force and action because it is a budding concept of law that shall affect society at large after its implementation. This study involves a detailed analysis of UCC and personal laws along with relevant case laws and the emerging scope of UCC in the Indian Legal Mechanism.
Research Methodology
For the purpose of the study, descriptive and analytical method has been used along with the help of primary sources like statutes and secondary sources like articles, blogs, and internet websites for a thorough analysis of the implementation of the Uniform Civil Code and its results on our diverse nation. Supreme Court observations and rulings on the said matter are also used for the purpose of this study.
Review of Literature
Tanya Sharma, “Uniform Civil Code: A Detailed Analysis.” Pen Acclaims, vol. 12, no. 9, 2020.
In her study, Tanya Sharma explained in detail the Uniform Civil Code, its beginning, constitutional relevance, controversy and developments. Along with this, it is also given what developments could be attained after the implementation of UCC. Supreme court observations on the Shah Bano case have also been highlighted. The Apex Court said that there are difficulties involved in bringing persons of different faiths and persuasions on a common platform. But a beginning has to be made if the Constitution is to have any meaning.
S. Sadhana, Mrs S. Bhuvaneshwari, “A Contemporary Study on the Uniform Civil Code”, International Journal of Pure and Applied Mathematics, vol. 120, no. 5, 2018, pp. 4683-4694.
The paper contains a thorough analysis of the Uniform Civil Code and the worse condition of women because of different religious personal laws. It also highlights that Goa is the only state to adopt the UCC and also focuses on the importance of “secularism” with the help of the Preamble of the Indian Constitution and the Special Marriage Act, 1954.
Historical Background- Constituent Assembly Debate on UCC and Personal Laws
At the time of independence, the concept, relevance and utility of the Uniform Civil Code were debated briskly in the Constituent Assembly during the making process of the Constitution. On November 23, 1948, the issue of UCC was raised for the first time in the Constituent Assembly. It was proposed by Congress’s Meenu Masani, a member of the Constituent Assembly from Bombay (now Mumbai)[2]. In the assembly, different leaders and members have distinct views on the Uniform Civil Code. Those who opposed it said that it should be put in the Directive Principles of State Policy under Article 35 of the draft Constitution, which was later on included in Article 44 of the final Constitution, to get it implemented sometime in the future. The reason behind this was the large-scale communal violence that had created an atmosphere of mistrust. Let’s focus on the views and opinions expressed by several leaders on the UCC.
Mohammad Ismail
- He was against the Uniform Civil Code because he believed that adherence to one’s personal laws is one of the fundamental rights of that person.
- He advocated that personal laws are a part of one’s religion which find its origin in the norms, culture and values.
- He said that there should not be any obstruction in practising one’s religion and personal laws which they are observing from generation to generation.
- He supports his arguments by adding that India is a diverse country with different values and beliefs and to secure secularism, religious and cultural ethics or ethos of the people must not be forgotten.
M.A. Ayyangar
- He tried to put his argument by saying that the Indian concept of Secularism has accepted all types of religions with equal prestige and dignity.
- That’s why, every citizen has the right to practice and propagate his religion. In other words, different communities have the freedom to practice their own religion and culture.
K.M. Munshi
- He elucidated that parliament can make law even in the privation of Article 35 since the article guaranteeing religious freedom gave the state power to regulate secular activities associated with religion.
- He said that European countries have uniform laws even for religious minorities and religion should be separated from personal laws because personal laws encourage discrimination based on sex which is not allowed under the Indian Constitution.
- A.K. Iyer agreed with K.M. Munshi and advised the Constituent Assembly to pass an article relating to Uniform Civil Code.
Dr B.R. Ambedkar
- He was one of the architects of the Indian Constitution and in this debate, he adopted a balanced approach by defending the views of Hindu members as well as supporting the laws of different religious communities.
- He assured the Muslim members that they will not be discriminated against because they are creating a “power” and not an “obligation”.
- Besides, Dr Ambedkar influenced the Muslim members ‘not to read too much into Article 44’[3].
After a thorough discussion, the matter was decided by the sub-committee headed by Sardar Vallabhbhai Patel with a majority of 5:4 that the UCC cannot be secured within the scope of the fundamental rights. There were many other derivations from the Constituent Assembly Debate which emphasized gender equality, unity and modernization of the Indian Legal System. On the other hand, opponents of the UCC weigh on the importance of cultural values, diversity and religious autonomy.
Advantages of the Uniform Civil Code
- Encourage Gender Equality- Women have always been discriminated against and harassed regarding their rights because of different personal laws. So, to eliminate discrimination and inequality in society, establishing a common law or platform would be a great step in promoting gender equality.
- Promote Unity and Integrity- UCC will provide a common sense of citizenship to all the citizens of the country by sharing the same set of personal laws. There will be no space for the politicization of issues of discrimination or concessions or special treatment enjoyed by a particular community based on their particular religious personal laws[4].
- Modernization of the Indian Legal System- Implementation of UCC can help the State to be in line with global standards as well as cater for the needs of modern society. Our State is dynamic and as a consequence of this, there are so many legal developments that need to be acknowledged to prioritize the expansion and progress of our legal mechanism.
Disadvantages of the Uniform Civil Code
- Interference with Religious Autonomy- Personal laws of different religious communities have their origin and history from the old norms and values that are followed by them from generation to generation. Implementing the UCC would dilute the diversity of Indian Society.
- Violation of Fundamental Rights- Implementation of the UCC shall lead to the violation of freedom to practice, profess and propagate any religion of the citizens as they would be compelled to follow the common civil law. Any interference with the fundamental rights of the citizens is not permitted by the Indian Constitution.
- Triggers Social Unrest- Giving effect to the UCC will lead to societal divisions and differences which might bring confusion and unrest among different religious communities. Any sudden change could disrupt social harmony and communal relations[5].
Supreme Court’s Observations of Landmark Judgments
Mohd Ahmad Khan v. Shah Bano Begum[6]
This landmark case is related to the maintenance given to the aggrieved divorced Muslim women in which SC regrets that Article 44 of the Indian Constitution remained a “dead letter”. It was observed that the above provision could secure national integrity by formulating a common law for all religious communities that have conflicting and disputing ideologies. The court also said, “It is the state which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”[7] A judgment given by Justice R.M. Sahaiwas remarkable and crucial to understand. He said that “Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for the protection of the oppressed and the promotion of national unity and solidarity.”[8]
Sarla Mudgal v. Union of India[9]
This case was also considered a landmark judgment of the Supreme Court as it invalidates the practice of changing into one’s religion just to constitute a second marriage without dissolving the first marriage. In this case, SC observed in favour of UCC by saying that “there is no connection or nexus between religion and personal laws in a civilized society”. There must not be any confusion between religious freedom and personal laws. Article 25 secures religious freedom of the citizens but Article 44 seeks to provide a basic law to all religions. Court also focused on the point that marriage, succession and other related matters cannot be included in guarantee enshrined under Articles 25, 26 and 27 of the Indian Constitution. It was observed by the court that the absence of the Uniform Civil Code opens up a passage for Hindu men to constitute multiple marriages by converting to Islam. This implies “open inducement” and an opportunity to escape prosecution.
Kesavananda Bharati v. State of Kerala[10]
It is also one of the landmark and crucial judgments of the Apex Court which established the “basic structure” of the Indian Constitution. Regarding UCC, SC observed, “Desirable as it is, the government has not been able to take any effective steps towards the realisation of this goal. Obviously, no court can compel the government to lay down a uniform civil code even though it is essentially desirable in the interest of the integrity and unity of the country”.[11]
ABC V. State (NCT of Delhi)[12]
In this particular case, Apex Court has observed the importance of the Uniform Civil Code by upholding the right of a single, unwed Christian mother to be designated sole guardian of her child. Unlike Hindu mothers who are the natural guardian and parents of their illegitimate children, Christian unwed mothers are not benefitted from this. Here comes the situation where the law lacks behind and discriminates on the basis of one’s religion. Supreme Court said on this that Uniform Civil Code is that part of the Indian Constitution which remains untouched and unaddressed just to secure the right to freedom of religion of the citizens.
Suggestions
Based on the study of the Uniform Civil Code and its debate in the Constituent Assembly regarding its impact and effects on personal laws, the following suggestions can be given to assess the necessity of the Uniform Civil Code in the State:
- The requirements of the citizens must be taken into consideration before implementing a common civil code because a law cannot exist too far apart from societal norms and values.
- There are more chances of biases in implementing a common law because the Uniform Civil Code is not a blend of personal laws, rather it is a new law that might favour a particular religion.
- It is also crucial that people must know the difference between religion and law. Both things are distinct from each other. For example, the religious scriptures prescribe punishments for crimes but the Indian Penal Code, 1860 is the only penal law that is followed in India.
- Instead of implementing the Uniform Civil Code as a whole new law, it should be introduced as legislation that shall be adopted by the people at their discretion and not as an obligation. Uniform Civil Code is necessary for national unity and secularism, but India is a multi-religion country which means people of the India will take time to accept and be governed by a common law.
- Draft of the Uniform Civil Code should be ready by keeping in view the best interests and benefits of all religions in mind and to ensure uniformity and homogeneity. A committee of distinguished jurists and legal experts should be established to prepare the draft on UCC.
Conclusion
The implementation of the Uniform Civil Code is a challenging process but is not impossible. Dr B.R. Ambedkar’s Council promulgated a balanced approach which stated that it is perfectly possible that the Parliament may make legislation in the near future by way of making a foundation that the Code shall apply only to those who make an affirmation that they are prepared to be governed by it, so that in the primary stage the application of the Code may be purely discretionary. Also, it is a time when citizens’ rights are of chief significance, and the welcomed position is to establish a society that respects human rights irrespective of caste, religion, and gender. That’s why, it is vital to legislate and think about the Uniform Civil Code because its necessity cannot be denied. Women’s empowerment can also be safeguarded after the enactment of the Uniform Civil Code. Eradication of certain discriminatory laws in every personal law of all religions can be guaranteed with the implementation of the UCC which will eventually formulate a secular Indian society. A misapprehension among minority communities in this country is that UCC will hamper their religious beliefs and laws have become a big challenge for the parliament to enact UCC. Article 25 which protects the freedom of religion of the citizens also somehow became like an obstacle in the course of effecting the UCC. As a result of this parliament needs to ensure that the stakeholders involved in this matter are consistent with the parliament while implementing the UCC across the country. UCC is necessary for National harmony and for secularism. Our society is not up to Western standards so to accept the “UCC” and this is the reason that still UCC is awaited to be done. The main reason behind so much debate on the matter is that India is a multi-religion country that contains a lot of cultures and such culture, trends, values and the behaviour of the citizens is full of diversity. Though we can say that India advances Unity in Diversity but not wholly otherwise Uniform Civil Code could have been enacted long back.
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Name: Mugdha Garg
College Name: GLA University, Mathura
[1] Sonia Balhara, The personal laws under Part III of the Indian Constitution, (Dec. 18, 2020).
[2] Ramesh Sharma, What framers of our Constitution said about UCC and why they didn’t implement it, (July 07, 2023, 16:32 IST).
[3] Constituent Assembly Debate on Uniform Civil Code, (last visited July 16, 2023)
[4] Uniform Civil Code (UCC): Pros and Cons in a Nutshell (last visited July 16, 2023)
[5] Ramesh Sharma, supra note 2.
[6] Mohd Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945.
[7] Anubhuti Vishnoi, SC support for legislation on UCC prompted by cases involving gender justice, (July 15, 2023, 10:41 IST)
[8] Shah Bano Judgment and Uniform Civil Code in India, (last visited July 16, 2023)
[9] Sarla Mudgal v. Union of India, AIR 1995 SC 1531.
[10] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
[11] Anubhuti Vishnoi, supra note 7.
[12] ABC v. State (NCT of Delhi), 2015 SCC Online SC 609.