Abstract –
The UCC in India has long been a contentious subject, embodying the tension between promoting national unity and preserving cultural diversity. UCC has long been a topic of political debates in India which political parties use as their political objective to influence the community sentiments of people. This research paper conducts a critical analysis of the Uniform Civil Code (UCC) as a proposed legislative framework designed to replace the personal laws of different religious communities with a unified set of laws that regulate marriage, divorce, inheritance, and adoption. Proponents argue that UCC is essential for ensuring the equality before the law, eliminating gender-based discrimination, and fostering national integration. On the other hand, opponents contend that the imposition of a uniform code threatens the rich cultural and religious diversity that defines India, potentially undermining the secular fabric of the nation. Through an analysis of legal precedents, scholarly opinions, and comparative studies of the UCC presently implemented in India, this paper explores whether the UCC is a unifying force or a divisive policy in the Indian context. The paper concludes by considering possible models for implementing the UCC in a way that balances the principles of equality and diversity, and addresses the concerns of various stakeholders.
Keywords – Uniform Civil Code,Goa Civil Code (GCC), Uttarakhand Uniform Civil Code (UUCC), Halala, Iddat, Manusmriti, Polygamy
Introduction –
A Uniform Civil Code (UCC) is a proposed law to establish a single legal framework for all religious communities in India, governing personal matters such as marriage, divorce, inheritance, and adoption. The UCC aims to ensure uniformity across communities and equality between men’s and women’s rights. It would codify civil laws, including property, torts, contracts, and family law, into a uniform code applicable to everyone. The UCC is outlined in Part IV of the Indian Constitution, specifically Article 44, which states, “The State shall endeavour to secure for citizens a Uniform Civil Code throughout the territory of India.” Although the state is responsible for pursuing this, its implementation depends on political consensus. The UCC is vital for establishing secularism and preventing discrimination based on personal laws. Personal laws in India are based on religion, caste, and belief, derived from customs and religious texts. Hindu personal laws cover issues like inheritance, marriage, and guardianship, while Islamic personal laws address matters such as inheritance, marriage, and divorce, rooted in the Quran.
Implementing a UCC is complex due to India’s diversity. The topic is contentious, with some advocating it as a means to promote secularism and legal uniformity, while others fear it could infringe on religious freedoms. The Muslim community, India’s largest minority, has expressed concerns about the UCC, worrying it might erode their personal laws. However, proponents argue that the UCC could resolve long-standing religious and community conflicts and enhance women’s rights, often lacking in existing personal laws.
Review of Literature –
- Menski, W. (2019) The Uniform Civil Code Debate in indian law: New developments and changing agenda: German law journal, Cambridge Core – The author argues that Article 44 of the Indian Constitution highlights the complex relationship between personal and state laws. They emphasize that while initial efforts in legal reform aimed at codification faced challenges, the evolution of legal pluralism reflects a shift from Western positivism to recognizing diverse legal traditions. The author points out that effective legal reform requires both societal and legal changes, influenced by historical and colonial contexts.
- Bhatia, G. (2021) Secularism and the Uniform Civil Code: Balancing Rights and Diversity, 8 Socio-Legal Rev. 23. Gautam Bhatia, a constitutional lawyer, offers a critical analysis of the judicial discourse surrounding the UCC in his article, “Secularism and the Uniform Civil Code: Balancing Rights and Diversity.” Bhatia contends that enacting a UCC might trigger constitutional disputes, especially in balancing individual rights with collective religious liberties. He underscores the importance of a UCC that honours India’s diversity while fostering legal consistency.
- Jaising, I. (2022) Gender Justice and the Uniform Civil Code: The Need for a Balanced Approach, Vol 12. J. Indian L. & Soc’y 51 – Indira Jaising addresses the gender justice aspect of the UCC, advocating for a code that ensures gender equality while respecting the cultural and religious diversity of India. She emphasizes the need for an inclusive and gradual implementation of the UCC to avoid alienating minority communities.
Research Methodology –
The study on the Uniform Civil Code (UCC) employs a qualitative research design, focusing on legal analysis and socio-cultural exploration. Primary data is gathered through a review of legal documents, including the Indian Constitution and Supreme Court judgments, alongside articles of legal experts and religious representatives. Secondary data includes scholarly articles and historical texts. A thematic analysis is conducted to identify key issues such as gender justice and religious freedom.
Historical Background-
In ancient and medieval India, personal laws were predominantly shaped by customary traditions and religious scriptures unique to each community. Hindu personal laws were informed by texts such as the Manusmriti, whereas Muslim personal laws were based on the Quran and Hadith. Each community thus adhered to its own specific set of rules and practices. However, this changed drastically during colonial India, when different communities began managing their personal laws independently.
The origins of the Uniform Civil Code (UCC) traces back to colonial India. In 1835, the British government submitted a report emphasizing the need for uniformity in codifying Indian laws related to crimes, evidence, and contracts. This led to the formation of the B.N. Rau Committee in 1941, tasked with codifying Hindu Personal Laws, which had become outdated and were seen as gender-inequitable and caste-biased. For instance, daughters lacked inheritance rights, widows had no rights to maintenance or alimony, couldn’t remarry, and there were no restrictions on men practicing Polygamy. The committee examined the 1937 Act and proposed the establishment of a civil code governing Hindu marriage and Succession. After the adoption of the Constitution in 1951, the proposed code was presented to Parliament, sparking debates on the UCC. Parliament was divided, with leaders like Vallabhbhai Patel and Rajendra Prasad supporting the UCC, while Jawaharlal Nehru and Dr. B.R. Ambedkar opposing it, viewing the bill as a diluted version of Hindu personal laws that retained Brahmanical-patriarchal biases. Ultimately, a less comprehensive version of the UCC was adopted through The Hindu Marriage Act, Succession Act, Minority and Guardianship Act, and Adoption and Maintenance Act. The UCC itself was included in the Constitution as a Directive Principle of State Policy under Article 44, suggesting its future implementation depending on social, political, and economic acceptance.
The All-India Muslim League opposed the UCC, arguing that it would interfere with their personal laws and infringe upon religious freedoms guaranteed by Articles 25-28 of the Constitution. Assembly members felt that a secular state should not interfere with religious practices, fearing it could create widespread discontent. Given the recent trauma of partition, the political class was wary of appearing majoritarian and decided to defer reforming Muslim personal laws until the demand arose from within the community. Since then, while many discussions on the UCC have taken place in Parliament, no definitive decision has been made regarding its implementation.
Arguments in Favor of the Uniform Civil Code-
The Uniform Civil Code (UCC) is a significant law that affects both religious sentiments and the daily lives of people. It cannot be implemented abruptly without careful consideration. The government is aware that sudden enforcement could destabilize the country, similar to the emergency situation of 1975. Therefore, it is crucial that the UCC is implemented gradually, state by state, allowing people to adjust to its features and legal complexities.
On February 7, 2024, the Uttarakhand Legislative Assembly approved the UCC Bill, and on March 13, it received the assent of President Droupadi Murmu. This milestone made Uttarakhand the first state in India to successfully implement a Uniform Civil Code, officially titled the “Uttarakhand Uniform Civil Code”(hereinafter referred to as “UUCC”). Although the bill is not yet in effect, with implementation expected in October, its passage is a significant step toward uniform personal laws without major protests. The Uttarakhand UCC aims to establish uniform rules on personal status law, including marriage, divorce, succession, and inheritance, applicable to all citizens regardless of religion. The bill is divided into four parts: Marriage and Divorce, Succession, Live-In Relationships, and Miscellaneous. Key provisions include abolishing polygamy, polyandry, and child marriage, requiring compulsory marriage registration, and granting equal rights in divorce, effectively banning practices like triple talaq. It also regulates intestate succession, dividing heirs into Class 1 and Class 2, with Class 1 heirs (spouse, children, parents, and spouses of predeceased children) given preference.
The bill seeks to advance gender equality and social justice by eliminating discriminatory practices that undermine women’s rights and by ensuring equal opportunities for all. The Uttarakhand UCC is a significant move toward creating a harmonious society, a vision shared by democratic nations.
Goa also retains a form of UCC through the Portuguese Civil Code, which has governed Goa, Daman & Diu, and Dadra & Nagar Haveli since Goa’s liberation in 1961. The Portuguese Civil Code, a 156-year-old law, continues to apply uniformly to Hindus, Muslims, and Christians in matters of marriage, divorce, and succession. It emphasizes gender equality in marriage, equitable wealth distribution, and prohibits practices like polygamy and triple talaq. Under this code, assets acquired during marriage are jointly owned, with provisions for equitable division in cases of divorce or death. Children cannot be completely disinherited, ensuring that at least half of the parents’ possessions are equally divided among them. The Goa Civil Code (hereinafter referred to as “GCC”) demonstrates that a UCC can exist without causing significant issues, providing a practical example of its potential broader implementation in India.
Arguments Against the Uniform Civil Code-
India’s secularism is evident from the very first page of its Constitution, with the word “Secular” prominently included in the Preamble, often referred to as the “soul of the Constitution.” Secularism in India promotes understanding and respect for different religions, allowing multiple legal systems based on religious beliefs to coexist. The implementation of a Uniform Civil Code (UCC) could disrupt the existing pluralistic framework by establishing a singular legal system for all citizens, irrespective of their religious affiliations.
Opponents of the UCC argue that this approach, which treats all religions uniformly, overlooks India’s deep-rooted diversity. They advocate for a secularism that respects and accommodates the distinct personal laws of different communities, thereby preserving India’s pluralistic ethos. They also contend that the UCC may infringe upon the religious freedoms guaranteed by Articles 25-28 of the Indian Constitution. In a nation with a vast array of religious communities, each governed by its own personal laws concerning marriage, divorce, and inheritance, the imposition of a uniform code could be perceived as an effort to homogenize these diverse practices. Such a move risks eroding the cultural and religious identities of minority communities, potentially leading to feelings of alienation and resentment, as it may be viewed as state intrusion into religious matters.
A significant issue with the UCC is its practical implementation. Both the newly formed Uttarakhand Uniform Civil Code (UUCC) and the Goa Civil Code (GCC) have loopholes that cannot be ignored. The UUCC Bill repeals existing laws, customs, and practices only “to the extent of inconsistency,” permitting personal laws and customs to continue where they do not conflict with the provisions of the UCC. For example, the UUCC overlooks the issue of adoption, where unjust practices could continue. Currently, Hindus, Buddhists, Jains, and Sikhs can adopt under the Hindu Adoptions and Maintenance Act of 1956, while Muslims, Parsis, and Jews lack a specific law, leading to disparate adoption regimes. Another loophole in the UUCC concerns women’s inheritance rights. Although the bill grants women the right to inherit property, it fails to address the issue of parental reluctance to transfer immovable property to women, particularly in India’s patrilineal communities. The use of wills could still be employed to deny women their rightful inheritance.
The Goa Civil Code (GCC) also has several loopholes. Catholics in Goa benefit from specific privileges, including exemptions from marriage registration and the authority granted to Catholic priests to dissolve marriages. For instance, a church tribunal can annul a marriage for Catholics if it has not been consummated, whereas non-Christians must seek divorce through the courts, without this ground available to them. Additionally, the Goa Civil Code permits polygamy for a Hindu man if his wife fails to conceive a child by the age of 21 or a male child by 30. However, the Shariat Act is not extended to Muslims in Goa, who are instead governed by a combination of Portuguese law and Shastric Hindu law. In matters of divorce, a man can obtain a divorce on the grounds of his wife’s infidelity, while a woman is only permitted to seek separation if her husband’s infidelity results in a public scandal and can secure a divorce only if he brings his mistress into their marital home.
These community-specific exceptions within the UUCC and GCC offer substantial grounds for criticism by opponents of the UCC, underscoring the complexities and challenges of establishing a genuinely uniform civil code in a diverse society like India.
Comparative studies and case laws-
The Supreme Court in a number of notable and landmark judgements has expressed its opinions in the support of UCC. Over the years, the Supreme Court of India has consistently championed the cause of the UCC, repeatedly urging the government to take concrete steps toward its implementation. Through various landmark judgments and observations, the Court has highlighted the need for a uniform legal framework that ensures equality, justice, and national integration. The Supreme Court’s support for the UCC has been driven by its commitment to upholding constitutional principles, such as secularism and gender justice, while recognizing the challenges posed by the pluralistic nature of Indian society. By examining some of the most significant Supreme Court cases and observations related to the UCC, we can better understand how the judiciary has shaped the discourse around this contentious issue and the rationale behind its consistent advocacy for a common civil code.
One of the most important cases which showcased the importance of UCC in a country as diverse and traditional as India is the Mohd. Ahmed Khan v. Shah Bano Begum and Ors (1985), popularly known as The Shah Bano Case. In this landmark case, a 73-year-old woman named Shah Bano was divorced by her husband through the practice of triple talaq (pronouncing “I divorce thee” three times) and was subsequently denied maintenance. According to Muslim personal law, maintenance was required only during the period of Iddat (approximately 90 days or three lunar months). Shah Bano sought legal recourse, and both the District Court and the High Court ruled in her favor. Her husband, however, appealed to the Supreme Court, arguing that he had fulfilled all his obligations under Islamic law. In 1985, the Supreme Court ruled in favor of Shah Bano under the “maintenance of wives, children, and parents” provision (Section 125) of the All-India Criminal Code, which is applicable to all citizens regardless of religion. Furthermore, the Court recommended the establishment of a Uniform Civil Code. This historic judgment sparked widespread national debates, meetings, and protests. In response to mounting pressure, the government at the time enacted The Muslim Women’s (Right to Protection on Divorce) Act (MWA) in 1986, which effectively rendered Section 125 of the Criminal Procedure Code inapplicable to Muslim women.
Another notable case in this regard is Sarla Mudgal vs Union of India (1995). The Sarla Mudgal case involved a situation where Hindu men, already married under Hindu law, converted to Islam to solemnize a second marriage without dissolving their first marriage. The case was brought before the Supreme Court by Sarla Mudgal, the president of Kalyani, a non-governmental organization working for the welfare of women. She filed a petition on behalf of multiple women who were victims of such practises. The central issue was whether a Hindu man, after converting to Islam, could solemnize a second marriage without dissolving the first marriage under Hindu law, which does not permit polygamy. The Court ruled that such conversions do not automatically dissolve the first marriage, and any subsequent marriage without a legal divorce would be considered void under the Hindu Marriage Act, 1955, making the man liable for prosecution under the Section 494 Indian Penal Code for bigamy. The Court emphasized that a UCC would prevent the misuse of personal laws, promote national integration, and ensure gender justice. The judgment highlighted that a UCC is essential to eliminating inequalities and safeguarding the rights of women across different religious communities. The Court urged the government to take proactive steps toward enacting a UCC as envisioned in Article 44 of the Indian Constitution.
Conclusion and Suggestions-
Since the previous few years, the UCC has been a prominent issue of controversy, and most of us are still arguing to support their arguments in the same dispute. While it’s true that implementation of UCC will help keep everybody in society on the same page, it is an oxymoron itself that the constitution of India, the law of the land prescribes under Article 14 the right to equality1 whereas on the other hand the society upholds personal laws. Part IV-Directive Principle of State Policy which talks about the state should strive to obtain for the citizens a UCC across the territory. From a law student’s perspective, personal laws seem to have become a tool for forum shopping, allowing individuals to choose legal systems based on convenience. This practice undermines the true essence of access to justice, as it creates inconsistencies and disparities in legal outcomes. In substantiating the present debate on implementation of UCC in India respected J. Pratibha M. Singh in her judgement opines that “There is a need for a code that would be “common to everyone” and for consistent principles to be applied to matters such as marriage, divorce, succession, etc., so that established rules, precautions, and processes may be established“.
The traditional barriers of caste, religion, and community are gradually diminishing in modern India, which is increasingly aligning with global norms. Young Indians from diverse backgrounds who choose to marry should not face challenges due to conflicting personal laws, particularly regarding marriage and divorce. While the UCC will not alter any religion’s personal laws, it will unify all religions under a single set of rules. Unfortunately, misconceptions fuelled by certain political agendas have led some to wrongly believe that the UCC infringes on personal rights and customs. In reality, the UCC aims to ensure that everyone, regardless of their religion, is treated equally, promoting fairness and equal justice for all.
I would recommend that the UCC should not be imposed uniformly and immediately across all communities. Instead, a gradual approach that respects the diversity of India’s cultural and religious practices is advised. For instance, the code could be optional at first, allowing individuals to opt-in, which could pave the way for broader acceptance over time. This would lead to people getting used to the norms and features of UCC and overtime when the society are ready to give up their personal laws by understanding the importance of UCC, it could be made permanent and compulsory. This approach could take about 50-60 years to implement UCC but is the most effective way in my opinion because not only will this approach minimize community disparities but would also reduce political powerplay. Moreover, UCC could be used to first focus primarily on areas where there is a clear and immediate need for reform, such as gender justice, while leaving space for cultural practices that do not infringe on fundamental rights. This targeted approach could mitigate fears of cultural erasure and maintain the delicate balance between national unity and diversity. Additionally, public awareness campaigns could help dispel misconceptions and highlight the benefits of a UCC, particularly in terms of gender justice and equality. Policymakers should also consider regional variations and provide mechanisms for communities to maintain certain cultural practices within the broader framework of a UCC.
The debate surrounding the UCC centers on two key issues: the potential to unify the nation under a common legal framework versus the risk of undermining India’s rich cultural and religious diversity. The challenge lies in striking a balance where the UCC fosters unity without imposing uniformity that disregards India’s pluralistic society. The future of the UCC in India is likely to depend on the evolving socio-political landscape and the judiciary’s interpretation of constitutional provisions related to religious freedom and equality. While the UCC remains a contentious issue, its gradual introduction and a focus on areas where there is a consensus for reform could make it more acceptable. The UCC’s success will largely hinge on its ability to address the genuine concerns of minority communities and to ensure that it does not become a tool for majoritarianism. If implemented thoughtfully, the UCC could pave the way for a more just and equitable legal system in India, while still respecting the country’s rich cultural mosaic
Footnotes –
- Nath, B.M. (2024) Opinion: Uttarakhand’s proposed UCC to Foster Gender Equality, NDTV.com. Available at: https://www.ndtv.com/opinion/uttarakhands-proposed-ucc-to-foster-gender-equality-4999436 (Accessed: 20 August 2024).
- Mishra, I. (2024) President approves Uttarakhand’s UCC bill, The Hindu. Available at: https://www.thehindu.com/news/national/president-approves-uttarakhands-ucc-bill/article67947099.ece (Accessed: 20 August 2024).
- Nath, B.M. (2024a) Opinion: Uttarakhand’s proposed UCC to Foster Gender Equality, NDTV.com. Available at: https://www.ndtv.com/opinion/uttarakhands-proposed-ucc-to-foster-gender-equality-4999436 (Accessed: 20 August 2024).
- Frontline, T. (2023) Uniform civil code: History, implications, and minority perspectives, Frontline. Available at: https://frontline.thehindu.com/the-nation/uniform-civil-code-history-implications-and-minority-perspectives/article67090521.ece (Accessed: 20 August 2024).
- Tariq, A. India: Legislative Assembly of Uttarakhand enacts Uniform Civil Code, The Library of Congress. Available at: https://www.loc.gov/item/global-legal-monitor/2024-03-21/india-legislative-assembly-of-uttarakhand-enacts-uniform-civil-code/ (Accessed: 20 August 2024).
- Kaushik, K. (2024) Explainer: What is India’s civil code and why does it anger Muslims? | Reuters. Available at: https://www.reuters.com/world/india/what-is-indias-civil-code-why-does-it-anger-muslims-2024-02-07/ (Accessed: 19 August 2024).
- Rajagopal, K. (2024) Over the years, Supreme Court has campaigned for Uniform Civil Code but refused to enforce it, The Hindu. Available at: https://www.thehindu.com/news/national/over-the-years-supreme-court-has-campaigned-for-uniform-civil-code-but-refused-to-enforce-it/article68533994.ece (Accessed: 20 August 2024).
- Webdesk, O. (2024) As PM modi pitches ‘secular’ civil code, where does the UCC Debate Stand? , Outlook India. Available at: https://www.outlookindia.com/national/as-pm-modi-pitches-secular-civil-code-where-does-the-ucc-debate-stand (Accessed: 20 August 2024).
- Ganguly, S. and Sen, R. (2024) Modi’s India is one step closer to a contentious goal, Foreign Policy. Available at: https://foreignpolicy.com/2024/02/16/india-uttarakhand-ucc-bill-modi-bjp-religion/ (Accessed: 20 August 2024).
- 1995 AIR 1531, 1995 SCC (3) 635
- 1985 AIR 945, 1985 SCR (3) 844
Name – Ravi Shanker Bhatt
A student at Assam University