One Nation One Code: Navigating the Path to a Unified Civil Code in India

Abstract

A society without law descends into anarchy; law permits every aspect of our lives, and even without them being enforced, most people can tell right from wrong. The need for rules and laws has been around since forever. Throughout history, societies have followed specific rules, often based on ancient texts like the Vedas, Quran, or Bible. As society progressed, a demand arose for more humane and just laws capable of accommodating modernization and human development. Today, we are governed by laws crafted by us, tailored to each country’s unique history and culture, ensuring the smooth functioning of society.

Among these laws, some are really important to people, with strong feelings attached. It can be hard for folks to let go of these personal feelings and follow laws made by lawmakers. However, societal progress necessitates legislative involvement for smooth functioning and the establishment of social justice. Laws derived from religion often prove outdated and irrelevant in contemporary times, and some even seem derogatory. Many countries have created their own sets of rules.

In India, a specific civil code exists for each religion, causing differences and problems that go against social justice. To make things more equal and improve legislation, execution and justice of civil laws, the country needs a Uniform Civil Code (UCC) that applies to everyone. This research paper tries to explain why a Uniform Civil Code is important and giving a full picture of the idea in today’s world. The UCC can be a solution to the issues caused by different rules for each religion, making the civil system more similar for everyone.

Keywords: Uniform Civil code, laws, justice, reform, personal laws.

Research methodology:

This research paper is descriptive in nature and its sources are taken for secondary sources that includes websites and newspaper. It aims to give a wholesome information regarding Uniform Civil code.

Introduction

The Civil Code provides the legal status and legal standards for the conduct of individuals, legal persons, other subjects, the rights and obligations of subjects regarding personal identities and property in civil, marriage and family, etc. relations.

With the diverse threads of cultural pluralism and legal intricacies, the concept of a Uniform Civil Code emerges as a transformative force, seeking to weave a singular fabric of justice that transcends religious divides and embraces the essence of equality in the tapestry of a nation’s legal framework. A Uniform Civil Code constitutes a comprehensive set of personal laws intended for universal application across India. Unlike the current scenario where personal laws are community-specific, the call for a Uniform Civil Code is enshrined in Article 44 of the Indian Constitution, falling within the ambit of the Directive Principles of State Policy (DPSP).” 

The Uniform Civil Code, outlined in Article 44 of the Indian Constitution within the Directive Principles of State Policy (DPSP), constitutes a comprehensive set of personal laws applicable across the entirety of India. Personal laws govern individuals on various aspects, including principles related to marriage, divorce, maintenance, adoption, inheritance, and more. Presently, personal laws in India lack uniformity and are specifically tailored to different religious communities—Hindus, Muslims, Christians, Sikhs, etc., each governed by its distinct civil code.

UCC promises uniformity in civil laws, allowing everyone to follow the same civil law regardless of religion. As society progresses and religious divides lessen, fostering tolerance becomes vital. However, an imbalance arises when one group is granted more rights than others, emphasizing the need for social justice in the legal system.

Review of litrature

Historical development of UCC

The infamous “divide and rule” strategy employed by the British, though ethically questionable, proved highly effective. Their legislation reflected a clear motive for economic exploitation, evident in the formulation of uniform criminal and commercial laws. However, when it came to personal laws, they deliberately maintained a fragmented approach, necessitating religious interpretations. While uniformity prevailed in other legal domains, the avoidance of a uniform Civil Code created complexities and disparities, serving the British government’s expediency by sidestepping the complexities associated with religious harmony.

Our eminent legal minds and freedom fighters, Dr. Bhimrao Ambedkar, Minoo Masani, and Kanhaiyalal Munshi, despite their divergent ideologies, shared a common vision in advocating for a Uniform Civil Code. They held the firm belief that India could realize this aspiration. Masani was the first to introduce the concept of a Uniform Civil Code in the constituent assembly, in particular, he likened separate personal laws to “watertight compartments.” However, the enforcement of the Uniform Civil Code remained elusive due to the prevailing apprehension of communal riots, separatist movements, and violence during that era. It was first resisted by Mohammad Ismail, and later supported by many recognized leaders. Arose from the apprehension that the Uniform Civil Code could be inclined toward Hindu ideology due to the Congress party’s Hindu majority. The concern lingered that practicing Sharia law might be restricted, compelling a potential compromise with their religious beliefs. Despite efforts to codify personal laws, Muslim law remained uncodified, relying instead on interpretation in accordance with Shariya law. This move drew criticism from some leaders who deemed it communal, expressing concerns about potential setbacks for the development of Muslim women.

In addition to this, a faction of legal experts expressed concerns that the implementation of the Uniform Civil Code might clash with the Fundamental Right: Right to Religion. Nevertheless, recognizing the evolving nature of justice, it was acknowledged that integrating the UCC as a Fundamental Right immediately after independence might not have been suitable. However, as society advances, the potential value of incorporating the UCC into the legal framework becomes increasingly apparent.

In the present context, despite the 21st Law Commission’s 2018 report concluding that a Uniform Civil Code was neither necessary nor desirable at the time, the Supreme Court has consistently emphasized the imperative for its implementation. Various legal cases underscore the pressing requirement for a UCC, prompting the recognition that it is indeed the need of the hour.

Importance

Certain laws persist as not only antiquated but also discriminatory, holding little relevance in the present times. The introduction of a Uniform Civil Code (UCC) guarantees that laws are neither swayed by any religion nor arbitrary; instead, they are rooted in a forward-thinking global perspective. For example, Section 494 of the Indian Penal Code permits Muslim men to practice polygamy with specific exceptions. However, under the UCC’s progressive approach, the emphasis shifts towards monogamous marriages as the final law. Disparities between Hindu and Muslim women, such as unequal property shares and maintenance duration, underscore the need for a comprehensive and uniform legal framework. As society strides towards modernism, dismantling derogatory practices in favor of laws grounded in both logic and equity becomes imperative. Our society is moving towards modernism, and we must adopt practices that have both law and logic.[1]

Constitution vs Personal Law

Personal laws are an exception to the constitution of India, all the other acts are uniform. Which holds greater authority, constitutional law, or personal law, and to what extent can the judiciary intervene in matters governed by personal laws, this can be understood with the following landmark cases:

  • In the case of the State of Bombay vs Narasu Appa (1952), the legal dispute unfolded when Narasu Appa married another woman under the premise that his religion permitted such unions if a son was not born from his first marriage. Despite his arguments, the court rejected his plea, resulting in a conviction for bigamy. In questioning the applicability of monogamy to him while exempting Muslim men, Narasu Appa contended that this differentiation violated his fundamental right to equality under Article 14. The judges ruled that, from a religious standpoint, personal laws held superiority over fundamental rights. They asserted that personal laws, even if conflicting with fundamental rights, remained immune to constitutional challenges. This landmark judgment underscored the unique status accorded to personal laws in the legal landscape.[2]
  • Mohd. Ahmad Khan vs. Shah Bano Begum (1985), Shah Bano, was divorced after 40 years of marriage and raising five children and asserted her right to maintenance under Section 125 of the Criminal Procedure Code (CrPC). the Supreme Court justices delivered a ground-breaking judgment, affirming that Muslim women, like women of other communities, are entitled to maintenance. This progressive verdict not only highlighted the universal entitlement of Muslim women to maintenance but also underscored the potential of a Uniform Civil Code (UCC) in India. However, the Rajiv Gandhi government enacted the Muslim Women (Protection on Divorce) Act, overturning the Court’s decision.  
  • Shayara Bano vs. UOI (2017), Shayara Bano challenged the practices of triple talaq, Nikkah Halala, and polygamy in Muslim law after her husband pronounced triple talaq. Arguing that these practices were derogatory and discriminatory, she filed a writ petition in the Supreme Court. The All-India Muslim Personal Law Board contended that since Muslim personal law is not codified, it should be protected under Article 25 of the Indian Constitution, meaning it cannot be judicially reviewed or constitutionally challenged. However, the Supreme Court, with a 3/2 majority, declared triple talaq as unlawful, stating that it is not an essential religious practice. The court further ruled that Parliament has the authority to declare the other two practices—Nikkah Halala and polygamy—as unlawful or unconstitutional. This landmark decision addressed the issues of gender equality and justice within the framework of personal laws in India.

It’s crucial to recognize that the Constitution is supreme, and personal laws can be modified in accordance with constitutional principles. Altering the Constitution to align with personal laws could undermine its integrity. Many other cases represent the need for a UCC one very common example is people converting to Islam to marry more than one woman, this is unethical and an exploitation of religious laws. These cases emphasize the ongoing need for a Uniform Civil Code in India, showcasing its consistent relevance from post-independence to the present day.

Uniform Civil law and its development process

In 1955, a uniform Hindu personal law was successfully implemented without significant issues, as it was a part of the Congress manifesto, and winning the election was seen as public consent. However, the current political landscape is more complex. Despite the leading political party including the Uniform Civil Code (UCC) in its manifesto, winning the election may not be deemed as direct public consent. Today, a common ground of agreement is essential, and the government should engage with all stakeholders before enacting such a law.[3]

In March 2023, when a Public Interest Litigation (PIL) was filed to introduce the UCC, the court deferred the decision to the parliament, stating that the UCC is not the appropriate forum for enacting such a law. Prime Minister Narendra Modi has recently emphasized the need for the UCC, aligning with the BJP’s manifesto. The 22nd Law Commission has sought input from the public and religious organizations regarding the UCC.[4]

Despite these calls for a uniform code, the previous Law Commission found it unnecessary and highlighted practical difficulties. For instance, Hindu law views marriage as a sacred sacrament, while in n Muslim law, marriage is a contract, and in Parsi law, marriage registration is a crucial ritual. Recognizing these differences is crucial, and imposing one religion’s practices on another is not acceptable.

Even if a consensus on the UCC is challenging, personal laws can be amended to incorporate progressive changes and eliminate derogatory practices, preserving diversity. This approach ensures that personal laws align with fundamental rights and promote gender justice. The state possesses the authority to address social injustices by eliminating problematic aspects from personal laws. Filtering out negative elements and declaring them unconstitutional can be a pragmatic step to achieve a fair and just legal framework.

Critics argue that Article 44 is part of the Directive Principles of State Policy (DPSP) and not a Fundamental Right (FR). The Constitution makers provided fundamental rights to ensure that citizens have essential rights, with the expectation that additional rights would be embraced as society progresses. An illustrative example is the Right to Education (RTE), which began in the DPSP and was later incorporated into Fundamental Rights when the state recognized its significance for development.

Goa, after its liberation from Portugal in 1961, Goa, with a population of just six lakh at that time, maintained the Portuguese Civil Code as the governing legal framework for an extended period. This unique situation rendered Goa the sole state in India with a uniform civil code applicable to all religions. The inherited Portuguese code, dating back a century, encompasses laws addressing issues such as polygamy and inheritance rights. Therefore, Goa stands as a compelling case study, offering valuable insights for the entire nation to consider before implementing a Uniform Civil Code (UCC).[5] As of Now Uttarakhand is also under preparation to adopt UCC, it will be a revolutionary step and the citizen shall see how it holds up against all odds.

Advantages and Disadvantages

Disadvantages of a Uniform Civil Code

  1. People have a Mass perception that UCC is an encroachment on religion and might impose a majority-based code that leads to social injustice.
  2. It is a sensitive topic and its way of introduction has to be cautious. There can arise practical difficulties in its execution 
  3. It will probably require the interference of the state from smooth execution and functioning.

Advantages of a Uniform Civil Code

  1. Provides gender equality- Making a gender Just society. This helps in creating a society where men and women enjoy equal rights and opportunities. Women get uplifted from the regressive shackles of religion.[6]
  2. Equal status to all citizens- equality in civil matters. A UCC ensures that all citizens, irrespective of their religious affiliations, have equal status under civil laws. This eliminates disparities that may arise from different personal laws.
  3. Bypass the need for reform in personal law- Ensuring legal harmony. The introduction of a UCC bypasses the need for piecemeal reforms in various personal laws associated with different religions. Instead, it establishes a comprehensive and uniform legal framework, ensuring legal harmony and coherence across different sections of society.
  4. Provide national integrity and social justice- Upholding national unity and social equity. A UCC contributes to national integrity by fostering a sense of unity among citizens, regardless of their religious backgrounds. It promotes social justice by eradicating discriminatory practices and ensuring that the legal system.

Comparative Analysis

Several nations have embraced the UCC, with varying degrees of implementation. While some have fully integrated it into their legal system, others adopt it partially. The UCC takes on distinct characteristics in different countries, as each tailor it to align with their specific needs, historical context, and requirements. Some nations develop and adhere to a progressive UCC, while others draw guidance from their religious texts. Certain countries even adjust their religious teachings to align with contemporary values. Notable examples of countries with a UCC include France, Germany, and Turkey, as well as our neighboring nations, Pakistan and Bangladesh.

In Rome, a set of shared principles was employed to formulate a code for the Roman populace, known as Jus Civile. This legal term encapsulates all the rules and principles of law drawn from the laws and customs of Rome.

In the United States, the concept of diversity takes on a nuanced dimension, particularly when viewed in light of Indian circumstances. Each state functions as an independent legal entity, adhering to its own set of practices and legal conventions. Despite variations in laws and practices among communities, certain overarching principles are universally applied across the nation in the context of civil laws.[7]

In the UK, USA, Australia, and Canada, a system of common civil law prevails. Over time, the status of women has seen gradual improvement through a series of landmark judgments and legislative measures.

France and Germany pioneered the adoption of the Uniform Civil Code (UCC) in the 19th century. Facing divisions, Germany implemented the UCC to unify its legal practices. Currently, discussions are underway for a European Civil Code.

In contrast, Saudi Arabia, Iraq, and Egypt rely on Sharia as their civil code, applying it uniformly to all communities based on constitutional principles.

The UCC’s impact varies globally, with some countries experiencing partial positives, while others witness transformative effects, fostering social justice.[8]

Suggestion

In my view, the implementation of a Uniform Civil Code (UCC) or the intervention of the Supreme Court should not be perceived as a threat to diversity. Uniformity, in this context, doesn’t imply rigid adherence to specific traditions for everyone, but rather the establishment of a reasonable set of rules aimed at reducing social injustice and eliminating derogatory practices that negatively impact certain groups or genders, hindering progress.

For instance, the introduction of a UCC doesn’t mean everyone has to follow the rituals of Hindu marriage; instead, it may require everyone to register their marriages. This approach doesn’t harm any religious sentiments but establishes common rules promoting a progressive mindset, social justice, and national unity. Notably, the nation already operates under several uniform laws, such as the Indian Penal Code (IPC) and Contract laws, without encountering significant issues. The widespread acceptance of these laws indicates that uniformity can be successfully implemented without resistance.

It is also essential to introduce laws in the right manner, as demonstrated by lessons learned from past legislations like the farmer laws, the Citizenship Amendment Act (CAA), and addressing violence in Manipur. These experiences underscore the importance of proper introduction and thoughtful planning in the enactment of laws. It highlights the importance of introducing laws thoughtfully and responsibly. Especially matters that involves public sentiments usually needs intervention from state for implementation and execution.

Conclusion

Uniform Civil code should be implemented in India. In the implementation of a Uniform Civil Code (UCC), it is crucial for lawmakers to maintain impartiality and strike a delicate balance between promoting social justice and preserving cultural diversity. This decision should be driven by intellectual considerations rather than emotions or politics, given the sensitive nature of India’s diverse fabric. The UCC must respect the cultural diversity inherent in each religion, avoiding any use as a tool to impose religious beliefs. Dr. Ambedkar envisioned the UCC to be harmoniously accepted, not imposed. Considering the significance of Article 25-28, which guarantees the right to freedom of religion, there must be a careful balance between UCC and these constitutional rights. It is expected that the 22nd Law Commission adopts an impartial approach, taking into account all relevant viewpoints in the formulation of the UCC.[9]

PARIDHI BARTHWAL

LLOYD SCHOOL OF LAW

2023-26


[1] https://economictimes.indiatimes.com/news/how-to/what-is-uniform-civil-code-what-does-constitution-say-about-it-why-its-such-a-controversial-topics-in-india/articleshow/101348565.cm

[2] https://www.barandbench.com/columns/end-67-year-old-narasu-appa-mali-tale-two-judges-supreme-court-sabarimala

[3] https://lawcommissionofindia.nic.in/notice/uniform-civil-code-public-notice/

[4] https://frontline.thehindu.com/the-nation/uniform-civil-code-history-implications-and-minority-perspectives/article67090521.ece

[5] https://indianexpress.com/article/opinion/lesson-goas-uniform-civil-code-uniformity-unjust-women-8817832/

[6] https://zeenews.india.com/india/one-nation-one-code-exploring-the-quest-for-a-gender-just-uniform-civil-code-in-india-with-sarthak-chaturvedi-2648273.html

[7] https://www.mondaq.com/india/constitutional–administrative-law/1201090/one-nation-one-law-the-necessity-and-challenges-in-implementing-the-uniform-civil-code

[8] https://www.legalserviceindia.com/legal/article-7248-uniform-civil-code-in-foreign-countries-its-evaluation-from-the-perspective-of-india.html

[9] https://thewire.in/law/equilibrium-between-religious-freedom-and-ucc-dpsp

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