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NEED FOR UNIFORM CIVIL CODE IN INDIA

1 Comment / Research paper

1.    abstract

Unity in diversity is ensured by equality and justice showered on everyone.

The Uniform Civil Code (UCC) refers to the application of the same set of secular laws to people from various geographic locations and with various religious convictions. The phrase refers to a system of laws and guidelines that control all personal issues, including marriage, adoption, divorce, child support, inheritance, and other issues pertaining to citizens’ property and personal status. Through this paper, the author wishes to discern and show the need for UCC in Indian context through background situation’s scrutiny and supplementary analysis of various judgements like Shah Bano case and Sarla Mudgal case. She also wishes to debunk several myths pertaining to the core content of UCC and show the real pressing need to implement it in India. It has several dimensions laid down by author to lead to the establishment of the immense requirement of Uniform Civil code in India. Several drafts have been in progress regarding UCC, however due to debates surrounding the code does not allow them to get passed and implemented. The reference to UCC is laid down in article 44 of directive principles of state policy through which the author takes evidence to support his discretion.

2.    Keywords

  1. Uniform Civil Code
  2. Progressive laws
  3. Shah bano and Sarla Mudgal case
  4. Article 44 of Indian constitution—Directive principles of state policy
  5. Gender and equal justice
  6. Essential religious practices and secular practices
  7. Minorities
  8. Courts

3.    Introduction

 “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.”

The above lines as laid down in article 44 of directive principles of state policy are a pressing need in modern Indian era. DPSPs are a way to guide the state to formulate welfare policies for its citizens in order to ensure that the laws and policies align with the basic structure of the constitution and are progressive in nature. Uniform civil code is the present demand compatible and suitable to the modern needs of the society. It should probably take into account the most current and forward-thinking tenets of the existing personal laws of different religions while excluding the regressive ones. [1]The Uniform Civil Code (UCC) is seen as the mark of a progressive country; it demonstrates that the country has transcended its traditional boundaries based on caste, religion, sex, and place of birth. It is seen as a guiding light for enabling both the necessary economic and social growth in India. Many, however, argue that the introduction of UCC would jeopardise the secular foundation of our nation and pose a risk to religious freedom, particularly for minorities. This is also supplanted by the obligation of the state to ensure justice and equality to all its citizens. The judiciary has also exercised its discretion to press the need for UCC in India to ensure even laws for all religions and communities spanning across the country through the means of various judgements such as shah bano case. Recent Allahabad judgement also points to UCC and its relevance in India. Now the question comes? Uniform civil code lays down what? It lays down a uniform set of rules and regulations pertaining to different religions in their personal affairs. Presently different religions have varied personal laws relating to marriage, adoption, succession etc. governing each according to their customs and traditions. However, they might come in conflict in cases of inter religious marriages. They might also create a space for injustices as laws of particular religions influenced by its age-old customs might be regressive and harsh incompatible to the modern society. This can be tacked by UCC. However, many have myths surrounding the content of UCC and the fact that it is ignoring the long and continuous practices of each religion, hurting their sentiments and hitting on their secular rights laid down in article 25. On the contrary SC and other modern times leaders have always been in support of ensuring equality in personal laws to avoid any discrepancies and conflicts that arises due to different and subjectivity in the personal laws of different religions in our country.

Therefore, the need for implementing UCC in India is of significant importance and immediate attention should be given to ensure welfare of citizens and to protect secular fabric of the country.

4.    Research methodology

 The author used descriptive and analytical doctrinal research, as well as secondary source of data, to analyse the need for a uniform civil code in the context of India. Books, journals, papers, and government reports, along with the websites of various governmental and non-governmental agencies and organisations, are forms of secondary sources of data.

5.    Review of Literature

  1. [2]International Journal of Law and Legal Jurisprudence Studies by Shantanu pachauri.

This was a research article and it elucidated about the UCC and its need in present times through difference case laws and balancing right to equality and right to religion. It looked through the lens of socio legal perspective in this regard.

  • Uniform [3]civil code in India—an overview by Abhinav Mehrotra

He linked UCC and the development of India in a direct proportion. He said progress and development will follow codification of personal laws. Judicial developments are in focus.

  • Lawctopus article—[4]Need for a uniform civil code in India

In this she transcended from explicating about the emergence of the idea of UCC to its implications, causes, reasons etc. Different arguments by both sides of the debates are captured in essence for a comprehensive understanding.

  • Uniform Civil Code a Heedless Quest? By alok Prasanna kumar.

      I.         History related to UCC

The French Code of 1804—which eliminated all forms of then-existing customary or statutory laws and replaced them with a uniform code—was notably significant in shaping the idea of the UCC. Similar codes were also drafted in other European nations during the 19th century and the early 20th century. As part of a larger imperial enterprise that followed the West, it was an effort to “civilise” the country. However, the First War of Indian Independence in 1857 delivered a strong message to the British not to change the social structure of India and maintain the personal rules governing issues of marriage, divorce, maintenance, adoption, and succession. Also, it was during the Colonial Era when laws were first codified. The drafting of our nation’s legislative writing was greatly influenced by the Colonial Masters. The October 1840 Lex Loci Report emphasised the importance of codifying Indian law in terms of crimes, evidence, contracts, and so on, but it suggested that Hindu and Muslim domestic law should not be included in such codification. Warren Hastings made a public proclamation of the position in the Administration of Justice Regulation, 1780, in which he stated that when resolving conflicts involving marriage, divorce, or inheritance, individuals would be subject to their personal laws.

After India gained its independence, the UCC was adapted as a guiding principle owing to Partition, which caused racial strife and reluctance to repeal personal laws. The Hindu Code Bill that the Constitution’s authors tried to introduce in the Parliament, which would have included progressive features like equal inheritance rights for women, was unable to pass because of political obstacles. Only on September 5, 2005, when the Hindu Succession (Amendment) Act, 2005, obtained the President of India’s assent, were the discriminatory clauses relating to property rights in the Hindu Succession Act, 1956, eliminated.

   II.         Problems associated with present varied personal laws

The [5]Hindu Marriage Act, 1955, which is an Act to revise and codify the law relating to marriage among Hindus, is the marriage law legislation that is applicable to the majority community, which is composed of Hindus. Under this Act, a legal marriage must be performed ceremonially; registration is not required. Both divorce and support are handled by this law. Hindu succession is governed by the [6]Hindu Succession Act of 1956. The rules governing succession, adoption, and maintenance are the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956. The Indian Parliament also enacted the [7]Special Marriage Act, 1954, as an Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorces under this Act. The Parsi Marriage and Divorce Act, 1936, as revised in 1988, is a statute intended to change the rules governing marriage and divorce for Parsis in India. [8]The Divorce Act, 1869, as revised in 2001, is an Act to alter the law pertaining to divorce and matrimonial causes relating to Christians in India. Both of these Acts were created to consolidate and amend the law dealing with the solemnization of marriages among Christians in India. Muslims living in India must abide by the [9]Muslim Personal Law (Shariat) Application Act, the Dissolution of Muslim Marriages Act, the Muslim Women (Protection of Rights on Divorce) Act, and the Muslim Women (Protection of Rights on Divorce) Rules, all of which were passed in 1937.

Issue with the Hindu Law is the process of registration of marriages which creates a problem of ignoring child marriages. In the case of Seema v. Ashwani Kumar, the Supreme Court of India mandated all Indian states to pass laws requiring the mandatory registration of all marriages, regardless of the couple’s faith, within a particular time frame.
This reform has made strides toward reducing child marriages, bigamy, and polygamy, enabling women’s rights to support themselves, inherit property, and live in their own homes, discouraging men from deserting their wives, and stopping the sale of young girls for marriage.

Also, Khap panchayats are community-based courts for resolution of disputes relating to personal laws. They are also not enforceable by law and creates issues for the Indian judiciary system. The additional courts are the source of the problem with Muslim law. In the case of Vishwa Lochan Madan v. Union of India and others, the Supreme Court of India issued notifications to the federal government, state governments, the All-India Muslim Personal Law Board (AIMPLB), and Darul Uloom, an Islamic seminary, pertaining to the existing parallel Islamic and Sharia courts in the nation, which pose an imminent danger to the Indian judicial system.

Furthermore, the condition of women and the subsequent treatment they face due to these personal laws are another danger to ideals of equality and justice. Polygamy allowance in Muslim law, triple talaq etc are illustration of the above fact. They are quite contradictory considering that they find place in article 44 of the Indian constitution and prevalence of articles related to right to equality.

These problems could well be absolved by the implementation of uniform civil code in India as laid down in DPSPs and quoted by B.R. Ambedkar during constituent assembly debates.

How problems could be resolved then?

Dirty bank politics or what you call it as vote bank politics would be done away with as then politicians would not have different religious policies to gather votes from. Also, women discrimination would be reduced in this arena with the elimination of provisions like triple talaq or any other in which women are subordinate to men. In a similar vein, personal laws that do not permit interreligious unions cause conflict in society. The tax exemptions granted to the Hindu Undivided Family and the requirement that Muslims register their gift deeds are two examples of privileges that can be deemed unlawful since they are based on religion. Bringing up of a codified law such as UCC would not only benefit the communities or society as a whole but also be a boon for Indian judiciary system. It would minimise the extra burden on the judiciary which arises due to existence of different laws for different religions. In this respect cases pertaining to similar subjects have to be dealt specifically under different personal laws which creates confusions and turbulences in the judiciary system of India.

 This quote by B.R. Ambedkar who supported UCC for every secular and modern nation perfectly captures the essence of the reasons proving the need for UCC in India:

“I do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field.”

III.         landmark judgements with regards to uniform civil code

  1. Shah Bano case—Popularly known as [10]MD Ahmed vs shah bano case. This case rejuvenated the conflict between the minorities and the government regarding implementation of UCC. In this, a Muslim woman named shah bano demanded alimony and maintenance from her husband after divorce. This is clearly restricted in Muslim personal laws. However, after the trial was succeeded in favour of shah bano and SC ordered the maintenance to be provided to her under [11]section 125 of code of criminal procedure which allows right to maintenance to every woman irrespective of religious identity. This enraged the Muslim community and they became hostile to it. They contended that their right in article 25(1) is being violated and SC is promoting monopoly of Hindu culture on every religion, thus hindering and hampering the existence of Muslim identity. All India Muslim league and personal laws protectors rallied against the judgement and pressurised the government to overturn the ruling. Apprehended by the Muslim rage and protests and also fearing the cut on Muslim vote share, the Rajiv Gandhi government overturned Supreme court’s ruling and retaliated by passing Muslim Women (Right to Protection on Divorce) Act, 1890 wherein there would be no provision for maintenance to Muslim women after her divorce.

 Takings from the judgements—SC pushed for uniform civil code in India to prevent such unjust laws prevailing in India even in the modern century. By granting alimony to the Muslim women against what is prescribed in her personal laws, SC directed towards ensuring justice over the personal laws’ protection, and suggested government to pass UCC legislation.

  • Sarla Mudgal case—Famous as [12]Sarla Mudgal v. Union of India, this case is further an example which accentuated the pressing need of UCC in India.

In this, A Hindu man contested for adopting bigamy after he converts himself to Islam. He said that he can solemnize a second marriage after he first marries as a Hindu under Hindu marriage act, then embraces Islam and marries under Muslim marriage act. SC in this case contended that a Hindu marriage can only be dissolved under its personal marriage laws and even after converting to Islam, that marriage is intact and bigamy cannot be justified in this scenario. This would qualify as an offence under [13]S.494(5) of The Indian Penal Code, 1860.

Takings from the judgements—Supreme court opined that article 44 has to be taken out of cold storage and implemented as uniform civil code to avoid such confusions in future. It also commented: “When more than 80% of the citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance, anymore, the introduction of Uniform Civil Code for all citizens in India.”

  • [14]John Vallamatton v. Union of India—SC also reiterated its urge to bring UCC in India. In this particular case, [15]S. 118 of the Indian Succession Act, which applies to non-Hindus in India, was challenged in this case by a priest from Kerala as being unlawful. S. 118 of the aforementioned statute, according to Mr. John Vallamatton, discriminates against Christians by placing arbitrary limitations on their ability to leave property to charity or for religious use in their wills. The section was declared invalid by the bench.

Takings from the judgements—it was a continuous judgement for issuing UCC in India. Supreme court gave justifications to do so by saying that UCC as a codified personal Law even to all communities would not only bring national integration and harmonise the society but also creates proper organisation and remove inherent contradictions in varied ideologies and beliefs, also easing tasks for judiciary to decide cases and ensuring justice.

[16]What does opposition to UCC present as their arguments?

  1. Infringement on their fundamental right to religion which they profess and practice through exercising personal laws according to their customs and traditions.
  2. Call for UCC should come from community rather than authoritative order from legislature.
  3. Is it even possible to reconcile whole of laws and codify it to form a uniform one? The answer to this was the distinction between secular and essential religious practices. The supporters of UCC contended that reconciliation of secular part of laws would be taken up as done in Goan model of UCC to ensure the national integration and protection of secular fabric of the nation simulataneously.
  4. The minorities or the opposition of UCC also countered through their apprehension of losing their religious identity which is protected by article 25 providing cultural and educational rights and within its ambit right to practice or profess religion in any manner. They say that this article is violated when UCC comes into being.
  5. They also present an alternative to ambiguous UCC — All citizens must be treated with respect and encouraged to participate, according to the government. Progressive multiculturalism must be represented as a paradigm of “integration” and “uniformity” that will boost minorities’ engagement alongside the majority in the political, social, and economic spheres. In light of this, it will neither exclude nor include a community from the scope of the universal civil code.

However, these points were countered further into debates by supporters of UCC who talked about balancing right to equality with right to religion as they say that practices which aren’t essential to any religion and in some way counterproductive has to be done away with in the UCC and would not violate any fundamental right per se. This is similar to harmonising only secular practices of all religions into UCC. Essential religious practices would remain intact. Only the customs which creates inherent problems and confusions being distributed would be codified to ensure unity and uniformity throughout the nation. This is similar to the codification of criminal law in IPC.

6.    Suggestions

In order to ensure proper and harmonised implementation of UCC in India, following suggestions could be taken into account:

  1. The opposing party i.e., basically minorities need to inculcate tolerance and patience towards religion and unity of the nation. they are required to think logically and patiently scrutinise the contents of UCC and ultimately think of larger benefit to the society side-lining their self-interests. This progressive attitude could be developed by increasing literacy rate and awareness among people. This could be done by student led sensitisation programmes, inculcating awareness campaigns in vote rallies by government etc.
  2. Another option is for the government to introduce a piecemeal measure that gradually results in a unified Uniform Civil Code rather than implementing it straightaway.
  3. Also, the government has to work unbiasedly towards bringing article 44 in the nation. It has to keep away the vote bank politics to satisfy a particular community, rather oblige to convince maximum majority and aware people about the significance of a codified personal law.
  4. UCC and its content should be precise and unbiased keeping in mind the large religious diversity of the nation.
  5. Implementation of UCC shall contain officers and learned jurists to look after all the problems that may arise. They can work at various district or panchayat levels to have a better hold of the post UCC reactions and issues at an individual level.
  6. The women and other vulnerable communities are treated brutally and differently in several personal laws. This has to be eradicated surely to make UCC a more egalitarian law. This gives them a solid reason to support the law.

Finally, the need for UCC is inevitable at this point of time but above suggestions and scholarly opinions has to be taken into consideration while drafting the real legislation and further ensuring its implementation. India, as a nation has always been sensitive and considerate about its culture, religion, language etc., and Indians claim identity on this basis. To protect the public order and harmony of the nation along with bringing this progressive law should be the utmost goal of the government.

7.    Conclusion

Article 44 lays down the need of Uniform civil code in India by the thinkers of our freedom struggle. They envisioned a society which will have a uniform and codified rules and regulations to ensure equal justice to all by the Indian courts. In a heterogenous nation like India, diverse personal laws create discrepancies and problems relating to women’s equality, repressive measures. This is because such laws are time immemorial and made according to age old customs and beliefs. This has to gradually end as the time changes, the laws have to become compatible with the modern needs. However, the major fears and ponderances over the enactment of UCC that occurs basically arises from the age- old conflicts of disputing provisions of different religions. This has to be specifically kept in mind that India is a diverse culture and people are very much sensitive about their religious heritage and assertion of its identity that as directed by SC and HCs in India through various judgements, Article 44 has to be taken out of cold storage and proactively implemented according to the need of the hour. It is in fact very precisely determined that in order to resolve disputes in an efficient and an absolutely just and equal manner, condition precedent that the aforementioned mechanisms for codifying personal laws of different religions should not be a violative of article 14(Right to equality), Article 21(Right to life) and align with the interests of the public in such a manner that it is reasonable and preserves the public order and security of the nation. At the individual level, Conscience and Rationality should go parallel while developing a prudent mindset for the benefit of the country which basically means that everybody has to think in a better context and at a larger scale to comply with the need for a codified personal law in India. The women and the classes who have been discriminated in religious laws from ages, should promote UCC considering the fact that this law would not be biased and keep everyone on an equal ground. The government also has to move away with its self-interests such as vote bank politics and take forward the courts’ directives to bring UCC in India and give its clear content in the form of proper draft (hence removing ambiguity surrounding it) to the public to shape their perceptions and accept the good law. It is evident that people of different religion have conflicting personal laws but they are united on a common cause i.e., ensuring UCC does not come into being. This is worrisome but can be resolved through imparting importance of a progressive nation by persuading people and counting their benefits. By filling in the gaps in diverse religious regulations, a single civil code will alter not only people’s perspective of how families should really be administered but also the lives of countless individuals. A unified civil code will strengthen the cause of national integration by removing competing interests, as Justice Y.V. Chandrachud correctly noted.

Author—Suhani Sharma

Institute—National Law University, Odisha

[1] Arnab kumar Banerjee, Uniform civil code: A need of Hour, SSRN Electronic Journal (2021)

[2] Uniform civil code in India: A Socio-legal perspective – researchgate, https://www.researchgate.net/publication/342503863_Uniform_Civil_Code_in_India_A_socio-legal_perspective (last visited Nov 12, 2022)

[3] Uniform civil code (UCC) in India: An overview ORF, https://www.orfonline.org/expert-speak/uniform-civil-code-ucc-in-india-an-overview/ (last visited Nov 12, 2022)

[4] Need for a uniform civil code in India Academike, https://www.lawctopus.com/academike/need-uniform-civil-code-india/ (last visited Nov 12, 2022

[5] Hindu Marriage Act, 1955, No. 25, Acts of Parliament,1955(India).

[6] Hindu Succession Act, 1956, No. 38, Acts of Parliament,1956(India).

[7] Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954(India).

[8] The Divorce Act,1869, No.04. Acts of Parliament, 1869(India).

[9] Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 1937(India)

[10] Shah Bano v. MD Ahmed, (1985) 2 SCC 556.

[11] Code of Criminal Procedure, 1973, § 125, No. 2, Acts of Parliament, 1974(India)

[12] Smt. Sarla Mudgal, President, Kalyani & Ors v. Union of India & Ors, (1995) 3 SCC 635.

[13] Indian Penal Code,1860, § 494, No. 45, Acts of Parliament, 1860(India)

[14] John Vallamattom & Anr v Union of India, (2003) 6 SCC 611.

[15] Indian Succession Act, 1925, § 118, No. 39, Acts of Parliament, 1925(India)

[16] Inamul Hassan, Uniform civil code – A third perspective, SSRN Electronic Journal (2022)

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