Elusive Uniform Civil Code

India is one of the most diverse nations in the world. It is known for the varied religious ethnicity and the deep cultural beliefs in its long-lived practices. India is widely known for its cultural values and heterogeneous society. Apart from being a multi-religious and multilingual state, India is a secular[1] country i.e. it propagates no religion (religion or irreligion neutral) and respects the cultural values of all the existing religions in the country.

In India, most of the law codes were codified by the British such as Criminal law, Law of Contract, Transfer of Property, etc. These laws were free from cultural factors of the society and did not focus on any specific religion. However, there existed a sphere of laws under the name of Personal Laws which described laws of the lifestyles of the people like family, marriage, succession, etc.[2] The British believed that such laws of religion involvement must use the specific religious principles for governance.

So since then, people are governed by their community-based laws which are distinct(not uniform) from the other community law in some or the other way. The massively popular example of the existing non-uniformity is: Polygamy(more than one wife/husband at a time) is allowed by the Islamic Law while under Hindu law, polygamous Hindu marriage is null and void and only monogamy is allowed( one marriage at a time). Such unlikeness among the laws brings non-uniformity in the justice system. It debauches the essence of justice which is to administer what is morally right and fair especially by the unbiased adjustment of contradictory claims.

Since a larger part of the civil law in the country was already uniform in its content and application, when Article 44 came to be adopted by the constituent assembly, it was concerned with only a part of the civil law which we call the personal laws of different communities of India. The concept of ‘uniform civil code’ denotes a very small field of civil law relating to marriage, succession, maintenance and adoption and it is this field of personal law which is posing the problem because of its intimate relationship with religious injunctions, practices and beliefs. [3]

Development of Uniform Civil Code

The Constituent Assembly(CA) introduced the Uniform Civil Code[4] (UCC) as clause 39 of the draft of Directive Principles of State Policy (DPSP)[5]. Clause 39 empowered the state to endeavour to secure for the citizens a UCC through the territory of India for the evolution of the nationalistic identity. During the debate for the same in the CA, several Muslim members exclaimed that the enactment of UCC in the Constitution of India would abridge their Personal Law.[6] Some others stated that it will bring minorities under tyranny. Supporting UCC, K.M. Munshi exclaimed that the personal laws and the religion must be disjoint as inheritance and succession are nothing sacrosanct to religion rather it is merely a secular activity. He emphasized:

“Religion must be codified to its proper sphere, and the rest of life regulated and unified so that we can become a strong and consolidated nation. Our first problem is national unity.”[7]

The father of the constitution and the law minister of that time, B.R. Ambedkar contended that uniformity of law has been attained over a wide extent of a human relationship however there still exists a “little corner”[8] of diverse laws like marriage and succession. Poignantly, he added that these diverse laws would be infringing the fundamental rights of the citizens due to discrimination. He claimed that UCC aims to curb inequality due to different religions. He said that it is necessary to deliver justice to everyone with an assurance that there would be no threat to religious identities and practices. Thus, as a multi-religious country, India’s redemption would only be possible by implementing secular UCC.

In 1947, the UCC was enshrined as Art 44 in the Constitution of India. It was stated that the state may apply it someday when the nation deems fit. The proceedings of the CA also stated [9]the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary.

Contradiction in The Constitution

The word ‘Secular’ in the Preamble of Indian Constitution symbolizes India as a nation of no religious identity and it focuses on the betterment of its citizens and not of any particular religion. Legitimately, the secular state is an enabler of rights rather than an inhibitor in sensitive matters of religion and personal laws.[10] The idea of secularism is indoctrinated to unite people of different cultures and promote harmony. Moreover, secularism implies total divorce of the law and religion. The UCC is introduced to take a step forward towards secularism so that people are dealt with a uniform law which would, in turn, reduce the differences present in society due to differences in the customs of the religions. E.g., Nagas do not recognize divorce as per Naga customs but Christian Nagas follow both the Naga customs and Christian specific law where divorce is recognized as a right.[11] This may abrogate the sense of brotherhood within the Naga community and create conflicts of interests.

The UCC is claimed to violate the Art 25[12] of the Indian Constitution which gives the right to every citizen to practice their religion without any obstruction. Also, Art. 26 (b)[13] and Art. 29[14] are used against the implementation of UCC. The contradiction of secularism and the aforementioned article has proved to be the major impediment for the adoption of the Uniform Code. However, Art 25(2)[15] of the same constitution is used to hold up the UCC as the state has a responsibility to approach the situation in a manner to provide greater social welfare.

All above the contradictions is the introduction of the UCC under the DPSPs which makes it unenforceable in the court of law i.e. no one can be brought to court for its non-compliance. Moreover, the Constitution merely lays down DPSPs as guidelines which are ‘fundamental in the governance of the country’ and it further states that the state must apply these principles in making laws. Such unclear categorization is another impediment for its implementation.

Development Over the Time

India has witnessed a series of governments but until now, no executive took a major step for the implementation of the Uniform Civil Code. Whereas, the Indian Judiciary, being one of the pillars of the state, took cognizance of the people’s grievances addressed against the unfair practices of the community-based laws. There have been various dispute cases regarding non-uniform laws in areas marriage, inheritance and adoption. In each case, there existed a conflict between the fundamental rights and the Directive principles. However, the overtime settled law of the Supreme Court (Harmony between the DPSPs and FRs) led to the sequence of modification in the personal laws.

The matter of UCC came to limelight after more than three-decade of its inception in 1978, when Shah Bano, a divorced Muslim wife filed a criminal suit in the Supreme Court of India seeking alimony (maintenance from husband) from her ex-husband. The judgment[16] in the favour of women in the mentioned case embarked severe criticisms by the Muslims contending it conflicted the law of Islam. Moreover, it tripped the debate about removing the different civil codes of different religions. The bench through Just. Y.V. Chandrachud observed- 

“ It is a matter of regret that Article 44 of our constitution has remained a dead letter… It provides that the state shall endeavour to secure a uniform civil code for the citizens throughout the territory of India. There is no evidence of any official activity for framing a uniform civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflict ideologies….”[17]

However, there was no evident development for the same further, even after the reiteration of the Supreme Court in the famous Sarla Mudgal case[18] of 1995, wherein again the unfair practices of the Muslim culture were abolished and highlighted the need for a uniform civil code. Furthermore, the court in the Sarla Mudgal case lamented that “the pattern of debate even today is the same as was voiced forcefully by the members of the minority community in the Constituent Assembly.” It presented a contradiction stating on one hand the implementation of the directive in Art. 44 would cause “dissatisfaction and disintegration” and on the other hand that the non-implementation “amounts to a grave failure of Indian democracy”.

In 2000, the Supreme Court in Lily Thomas vs. Union of India & Ors[19] declared that the second marriage, after men converting their religion to Islam, would not be solemnized without prior divorce from the first marriage and would be declared void until and unless the first marriage gets dissolved according to the Hindu Marriage Act, 1995. If not followed the declared precedent law, the husband would be punished for bigamy under section 494 and 495 of Indian Penal Code, 1860.[20]

The idea of common civil code again went unheard for quite a well until the courts witnessed the outcry of the aggrieved of the practice of Talaq-e-bit (instant divorce by the Muslim husband to their wives) also known as Triple Talaq. In Triple talaq, marriage gets dissolved after uttering the word talaq ‘thrice’ by any Muslim man to his wife. It was challenged in the Supreme Court[21] of India whereas the Muslim Law Board contended that it came under their ‘personal law’ and was their traditional practice. It again gave rise to a massive heated debate on the need for a Common Civil Code in India. In 2017, the Supreme Court held that the marriage was not dissolved and the liability of the husband to pay maintenance continues. It declared that the practice of triple talaq was unconstitutional and stated that it was violating Article 14[22] and 21[23] of the Indian constitution.

Current Scenario

The Bharatiya Janata Party(BJP) is the first party to promise the implementation of UCC in its manifesto for the 2019 Lok Sabha Election.[24] Till date, it hasn’t placed the bill for the same. But it is a long featured agenda of this party and there are many indications that the party is determined to fulfil it.

Conclusion

“By codification of different personal laws, one can arrive at certain universal principles that prioritize equity rather than the imposition of a uniform code, which would discourage many from using the law altogether,..” the recommendation given by the 21st Law Commission.

The author believes that the current government must consider this recommendation to avoid religious animosity between communities.

There is certainly difficulty involved in bringing persons of different faiths and persuasions on a common platform. But, a start has to be initiated to eliminate the confusion and set out certain universal principles to redress the issue with an identical approach so that no human rights violation is done to any. It is a necessary push in the direction of equity and freedom because the rights of an individual are far more important than the orthodox customs which are majorly unfair in the contemporary world.

However, some publications have carved out a problem-solving structure for the aforementioned difficulty. So, the initial strategy of the government could be an ‘Optional code’[25], i.e. a common but optional code is introduced in the public domain for some time. The contention is that the uniform law must not be forced rather the citizens must be given a sufficient amount of time to appreciate the new law and adapt themselves according to it. After a substantial acceptance of the optional uniform civil code, it can be made compulsory.[26]

Also, there must be a gradual transformation to a more uniform law with the consensus and conjoint work of both the judiciary and legislature. E.g.- if the Supreme Court declares a law as unfair and unreasonable, it should be followed by an enactment of a more just and uniform law by the legislature. Thus, the gradual and slow pace shift from the diversified and unequal laws to a common and more unified code could bring out the real implementation of the Uniform Civil Code in the long run. The additional and most direct approach would be to create a Draft Uniform Civil Code and open it for public and parliamentary scrutiny. The fundamental reason is the ongoing anxiety of the abolishment of the personal laws which has somewhere developed insecurity among the minorities. That may be the reason why nobody has made or drafted one.

The aim of article 44 of the Constitution of India requires deep scrutiny before implementation. Earnest attention of the state and an endeavour to implement it soon is a necessity. However, making one big code on all the spheres of marriage, divorce, succession, adoption, etc., in a go may cause a lot of difficulty in replacing the age-old traditions and customs. The best possible way to change in the traditions of the people is by a gradual process which is not at all intimidating.


[1] INDIA PREAMBLE, amended by The Constitution (Forty-second) Act, 2000.

[2] Shambavi, Uniform Civil Code: The Necessity and The Absurdity, Summer Issue 2017, Vol. I, ILI LAW REVIEW (2017). http://ili.ac.in/pdf/paper217.pdf

[3]  Krishnayan Sen, Uniform Civil Code, Vol. 39 No.37, ECONOMIC AND POLITICAL WEEKLY (Sep 11-17, 2004). http://www.jstor.com/stable/4415537

[4] INDIA CONST. art. 44, “State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.”

[5] INDIA CONST. art. 36-51, 15 principles given to the federal institutes governing the State of India, to be kept in citation while framing laws and policies.

[6] M P Jain, OUTLINES OF INDIAN LEGAL AND CONSTITUTIONAL HISTORY, 672 (LexisNexis, 2014)

[7] Id. at 672.

[8] Id. at 672.

[9] Constituent Assembly Debates (Proceedings), Volume VII, Tuesday 23rd November 1948

[10] Krishnadas Rajagopal, What is the debate on uniform civil code all about? The Hindu, September 8, 2018. https://www.thehindu.com/news/national/what-is-debate-on-uniform-civil-code-all-about/article24903560.ece (last visited May 22, 2020).

[11] Preetha Nair, One Nation, One Legislation: After Article 370, Uniform Civil Code BJP’s Next? How it will impact you, OUTLOOK INDIA (June 5th, 4 pm). https://www.outlookindia.com/magazine/story/india-news-one-nation-one-legislation-after-article-370-uniform-civil-code-bjps-next-how-it-will-impact-you/302079

[12] INDIA CONSTI. art. 25,  all persons are equally entitled to freedom of conscience and the right to freely profess, practise, and propagate religion subject to public order, morality and health.

[13]  INDIA CONSTI. art. 26(b), every religious section or denomination has the right to manage its affairs in matters of religion.

[14]  INDIA CONSTI. art. 29, protects the interests of the minorities by making a provision that any citizen/section of citizens having a distinct language, script or culture have the right to conserve the same.

[15] INDIA CONSTI. art. 25(2), Nothing in this article shall prevent the state from making any law providing for social welfare and reform.

[16] Mohd. Ahmed Khan v. Shah Bano Begum 1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945

[17] Virendra Kumar, Towards a Uniform Civil Code: Judicial Vicissitudes [from Sarla Mudgal (1995) to Lily Thomas (2000)], Vol. 42, No.2/4, Constitutional Law Special Issue, JOURNAL OF THE INDIAN LAW INSTITUTE (April-December 2000) https://www.jstor.org/stable/43953817  (hereinafter “To UCC”)

[18] Smt. Sarla Mudgal, President, … vs Union Of India & Ors 1531 AIR 635 SCC (3) (1995)

[19] Lily Thomas vs. Union of India & Ors AIR 2000 SC 1650.

[20] To UCC at 320-322.

[21] Shayara Bano vs Union Of India And Ors. Ministry 9 SCC, 1 Writ Petition (C) No. 118 of 2016 (2017)

[22] INDIAN CONST. Art 14, Equality before Law.

[23] INDIAN CONST. Art 21, Right to Life.

[24] C.K.Mathew, Uniform Civil Code: The Importance of an Inclusive and Voluntary Approach, HINDU CENTRE. (6th June, 5 pm) http://www.thehinducentre.com/publications/issue-brief/article29784007.ece

[25] D.C. Manooja, Uniform Civil Code: A Suggestion, JOURNAL OF THE LAW INSTITUTE (April-December, 2000)  https://www.jstor.org/stable/43953824.

[26] Krishnayan Sen, Uniform Civil Code, Vol. 39 No.37, ECONOMIC AND POLITICAL WEEKLY (Sep 11, 2004). http://www.jstor.com/stable/4415537.

Rishabh Gupta from Symbiosis International Deemed University

“He ventures to learn and write on different aspects of law and has a keen interest in Criminal Law.

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