The Uniform Civil Code (UCC) stipulates that one law for our country would apply to all religious groups in fields like marriage, divorce, inheritance, and adoption. As a matter of Constitutional provision, Article 44 mandates that the State shall try to ensure universal application of the Uniform Civil Code throughout the territory of India.
Politicians and the public have debated this issue for over a century and the Bharatiya Janata Party (BJP), which has been pushing for legislation in Parliament, has been at the forefront of the debate. As part of its 2019 Lok Sabha election manifesto, the saffron party promised to implement UCC if it came to power.
Why is Article 44 so important?
As part of the Directive Principles in the Indian Constitution, Article 44 addresses discrimination against vulnerable groups in our country while harmonising different cultures. During the formulation of the Constitution, Dr. Ambedkar stated that even though a UCC is desirable, it should be voluntary for the moment. Therefore, Article 35 of the draft Constitution was added in part IV of the Constitution as Article 44 as part of the Directive Principles of State Policy. The UCC was enshrined in the Constitution as an aspect that will be fulfilled once the nation has a chance to accept it as well as social acceptance.
According to Dr B.R. Ambedkar, if the State has the power, then the State will immediately proceed to execute it in a manner that would be found objectionable by Muslims, Christians, or any other community. He even said that Governments that do this are insane.
Origin of Uniform Civil Code
During colonial India, the British government submitted a report in 1835 stating that Indian law should be codified according to uniform rules for crimes, evidence, and contracts and specifically recommending Hindu and Muslim personal laws not be codified.
As a result of an increase in the legislation dealing with personal issues during British rule, the government formed the B N Rau Committee to codify Hindu law in 1941. It was the job of the Hindu Law Committee to examine whether common Hindu laws were necessary. Following scriptures, the committee recommended codifying Hindu law that would guarantee women the same rights as men. The 1937 Hindu Marriage and Succession Act were reviewed, and the committee recommended a code of civil law for Hindus.
What are personal laws?
Personal laws are those laws which are applied to a certain group of people based on their religion, caste, faith, and belief, made after considering customs and religious texts. Hindu and Muslim personal laws are derived from their ancient religious texts.
According to Hindu law, personal laws regulate issues surrounding inheritance, succession, marriage, adoption, co-parenting, and the obligation of sons to pay off the debts of their fathers, as well as maintenance, guardianship, and charitable donations. The Muslim also have their own personal law concerning matters that are related to inheritance, wills, succession, legacies, marriage, wakf, dowry, guardianship, divorce, gifts, and preemption which has their roots in the Quran.
What will Uniform Civil Code do?
In addition to protecting the vulnerable sections of society as envisaged by Ambedkar, including women and religious minorities, the UCC aims to promote nationalistic fervour through unity. In effect, the law will combine laws at present segregated based on religious beliefs, such as the Hindu code bill, Shariat law, etc. A simplified code will simplify all the complex laws surrounding marriages, inheritances, successions and adoptions. Afterwards, civil law will apply to all citizens irrespective of their faith.
Controversies over Universal Civil Code:
As we all know that the Uniform Civil Code is being discussed as a controversial topic — if it is secured, a section of society is going to benefit at the expense of another section, so does it make sense?
It is incorrect to ask this question. Rather, it should only be viewed from the human rights vantage point, the “equal rights of all members of the human family”.
There has been a debate about this for a long time and moreover, the tradition goes back almost 200 years. In 1840, the Lex Loci Report recommended that personal laws should not be codified.
Even during the Constituent Assembly debates, this reservation about codifying personal laws remained. Mohd Ismail believed Islamic personal laws should not be included in UCC. Even Hindu organizations are against UCC, according to B Pocker Saheb. According to some, the primary issue is that UCC conflicts with Article 25 of the Constitution of India, which guarantees the right to practice, profess and propagate religion.
There are personal laws in almost all religions despite their right to religion being fundamental. UCC must ensure that every citizen is treated equally before the laws concerning their personal laws.
In addition, the existing personal laws are not solemn and need to be evaluated again, as they are not uniform in themselves. For instance, Section 2 (2) of the Hindu Marriage Act (HMA) excludes the Scheduled Tribes from the law, and Sections 5 (5) & 7 states that customary practices will override the law.
There are multiple laws on the same subject, in addition to a lack of uniformity. Sikhs and Arya Samajis, for instance, are both covered by HMA, but they have two different laws dealing with their marriages.
One can refer to the Goa Civil Code of 1961, which is very similar to the UCC apart from a few exceptions. Numerous people in Goa don’t know that all citizens in the state are bound by a common civil code. Up until 1961, Goa had the Portuguese Civil Code, which later became the Goa Civil Code. Former Prime Minister Indira Gandhi appointed a commission in 1981 to impose non-uniform personal laws in Goa, identical to those in the rest of the country. The Muslim Women Association and Youth Welfare Associations in the state, however, strongly opposed this move. Thus, Goa continues to have the same civil code.
The UCC does not care about Hindu-Muslim or majority-minority issues. A recent judgment of the Delhi High Court illustrates this point. In that instance, the dispute involved a couple that belong to the Meena tribe, whose marriage was excluded from the Hindu Marriage Act and the court observed that while codified statutes and laws provide a variety of protections to parties against unregulated practices from being adopted when determining whether the Hindu Marriage Act applies to members of the community who were married per Hindu customs.
The Uniform Civil Code enforces reforms within the Hindu, Muslim, Christian and Parsi communities to combat discrimination. We can rather call it a secular step. Following Independence in 1947, the Nehru government faced stiff resistance against passing the Hindu Marriage Act of 1955, the Hindu Adoption and Maintenance Act of 1956 and the Hindu Succession Act, 1956. In retrospect, we can see the benefits of taking firm decisions during that time. The codified Hindu laws have made a considerable impact on the status of women in Indian society.
Under the shadow of personal laws, systemic discrimination and inequality have already deprived a section of our citizens for a long time. Neither religious faith nor essential practices can be used as defences for these discriminatory practices. Otherwise, sati pratha, or child marriage, could never have ended.
It has been proven that India is more able than ever before to accommodate and progress with essential structural reforms thanks to the recent GST reforms, triple talaq law, or abrogation of Article 370.
Codification of uncodified laws won’t be the sole purpose of an all-encompassing UCC. Furthermore, it will lead to the eradication of unreasonable discriminatory provisions concerning adoption, succession, inheritance, guardianship, marriage, divorce, and maintenance in Hindu, Muslim, Christian, and Parsi law. While India has historically and culturally imbibed the trait of tolerating and accommodating diversity, a diversity that leads to discrimination against women is unworthy.
Advantages of having a Uniform Civil Code
1. To ensure citizen’s equality
A secular democratic republic in the modern era should have a common civil and personal law for all citizens, regardless of their religion, class, caste, gender, etc.
2. To promote gender equality
A common observation is that almost all types of personal laws discriminate against women. A man often enjoys upper priority in matters of succession and inheritance. The uniform civil code will bring women and men on an equal footing.
3. Young people’s aspirations should be accommodated
Contemporary India has a population that is 55% younger than 25 years old, making it a completely new society and their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity. They must be given serious consideration on the issue of shedding their identity based on any religion to utilize their full potential for national development.
4. To support national integration
Criminal laws and other civil laws (except personal laws) are the same for all Indian citizens all of them are already equal before the Court of law. Citizens will be subject to the same set of laws with the implementation of the Uniform Civil Code. We will not politicize issues of discrimination or concessions made to a particular community based on their personal religious laws.
5. Reform of existing personal law is bypassed to avoid the contentious issues
Existing national laws in most religions are mostly embodied in the patriarchal ideas of the upper classes. UCC typically demands aggrieved women as a replacement for existing personal laws since patriarchal orthodox people believe reforms in personal laws will destroy their sanctity and oppose them fiercely.
Disadvantages of having a Uniform Civil Code
1. Due to India’s diversity, there are practical difficulties
In India, due to enormous cultural diversity across religions, castes, sects, states, etc., it is practically impossible to come up with a uniform set of rules for personal matters like marriage.
2. Religion is perceived as encroaching upon UCC’s freedom of belief
The Uniform Civil Code is perceived as an infringement upon the right to religious freedom by many communities, particularly minority communities. An agreed code would disregard their traditions and impose rules that can be dictated and influenced mostly by the majority religion.
3. Interference by the States in personal matters
A person has the right to choose a religion of their choosing under the Constitution. As a result of codification and compulsion of uniform rules, freedom of religion will be restricted.
4. A sensitive and difficult task
To implement such a code, we must borrow freely from different personal laws, make gradual changes to each, issue judicial pronouncements assuring gender equality, and adopt expansive interpretations of marriage, maintenance, adoption, and succession to recognize the benefits that one community receives from another and it will take a great deal of time and effort to complete this task. As the government deals with minority and majority communities, it should maintain an unbiased approach at every stage. In that case, it might result in communal violence that is more disastrous.
5. It is still too early to implement this reform
With major opposition from the Muslim community in India to this issue as well as saffronization of school and college curriculum, love jihad, and the silence that the top leadership is giving to these controversies, necessary time must be given for instilling confidence in the community. As a result, these efforts towards common will have the opposite effect, leaving minority classes, especially Muslims, more insecure and vulnerable to getting attracted to fundamentalist and extremist ideologies.
A LONG PROCESS
In other words, code unification cannot be viewed as something that must be completed in one go. As a result of the Indian Succession Act (the first secular law), the law of succession began to unify in 1925, regardless of the religion of the person writing the testament or the will.
In the CrPC, Section 125 provides for the maintenance of the husband, wife, children, and parents. The law prohibiting harassment because of dowry and, more recently, the law protecting women from domestic violence is widely practised.
There is a secular law that is similar: the Child Marriage Restraint Act of 2006, which was recently amended in 2006. Even though these laws dealt with personal matters, no community had opposed them.
As far as secular law is concerned, CARA guidelines deal with the adoption of children.
JUDGMENTS SETTING THE TONE OF UCC
We also have Supreme Court and High Court judgments, which resolve controversies by resolving contradictory laws. First, we have the Shah Bano case, which provided for Muslim women’s maintenance under CrPC. Next, we have the Sarla Mudgal case, wherein it was ruled that if a person converted to Islam for marriage, the marriage was null and void. Last, but not least, there is the Shayara Bano case on triple talaq, an independent thought case, where the court concluded that sex after marriage with a girl under 18 years of age is rape.
Since the tribals are excluded from applying HMA, the Delhi High Court judgment of 2021 highlighted that conflicting provisions in different personal laws create problems for young people belonging to different religions.
Do All Communities Have Enough Liberty To Reform Themselves?
Reforms concerning ‘personal law’ should come from within the community and not be imposed by the legislature, according to some people. Based on the past and prevailing attitude of the community leadership, this is unlikely to occur. Beneficiaries of the broken societal setup want to put the subjects on a backward journey. As a result, stakeholders were outraged by the Shah Bano (1985) and Triple Talaq verdicts.
People will be shocked to learn what community leaders think. An example of this was the affidavit submitted by the All India Muslim Personal Law Board to the Supreme Court in Re: Muslim Women Quest For Equality, commonly known as the Triple Talaq case. Normally, Islamic personal law boards defend practices like triple talaq, polygamy, and nikah halala by affidavit. The following are some excerpts of the affidavit that do not require any explanation. According to the affidavit of the board:
(i) If there develops serious divergence between the couple, and the husband does not want to live with her at all, the legal compulsions of time-consuming separation proceedings and expenses may dissuade him from pursuing the legal path.”. If such a situation arises, he may resort to illegal, criminal means to murder or burn her alive.
(ii) Giving a husband the right to divorce indirectly provides security to the wife. A marriage contract is a contract in which neither party is physically equal. Females are weaker than males.
(iii) Polygamy is a social necessity for women because an unlawful mistress is more damaging to society than a lawful second wife.
(iv) Polygamy guarantees sexual purity and chastity. When polygamy is banned, illicit sex arises.
It is unnecessary to discuss the relevance and morality of this practice. In contrast to what was previously stated, Fyzee describes sharia law in his book ‘Outlines of Muhammadan Law’ as follows: “What is morally beautiful must be done; what is morally ugly must not be done.”. There is no law other than Shariat.”
Religious boards are no longer regarded as highly as they were at the time of their inception. The All India Muslim Personal Law Board claims its laws are based on the Quran. Despite this, Muslim scholars like Maulana Maudidi have repeatedly demonstrated that a lot of the provisions given by Muslim personal law boards do not reflect the text given in the Quran.
Uniform Civil Code And Minorities
Minorities often hear false accounts like the UCC will abolish customary laws and annihilate their culture as a means of intimidation. Legally, UCC is a common civil code that codifies personal law for all citizens regardless of religion. In India, it can be assumed that the UCC will have different sections appropriate for each religion, which will sanction customary practices relating to marriage, divorce, maintenance, and succession. A Hindu Marriage Act, 1955, for example, sanctions practices like Saptpadi and Kanyadaan as valid marriages, while also acknowledging regional customs. The legislation being enacted precludes the possibility of its provisions infringing fundamental rights.
Additionally, the above-stated matters will be transferred from religious boards to the legislature. As a result, the legislature will be able to evaluate and modify the laws to meet the changing times, and the Court will be able to effectively exercise its review power.
Stages Of Changes
UCC is discussed with the same apprehension as it was in 1840 when the British had handled the issue. As far as the Muslim Personal Law is concerned, the Shariah Application Act of 1937 protects different laws, but many Muslim personal laws have still been codified. Last but not least is the law of 2019 protecting Muslim women’s right to marriage.
I would like to emphasize the need to reconsider personal laws about all religions, including Islam, as part of the unified code. For Hindu women, property rights come in bits and pieces.
Hindu women gained limited property rights in 1935. She was given equal ownership of assets in 1956 and finally, in 2005, a daughter was given equal ownership of coparcenary assets and agricultural or rural lands.
The guarantee of equal rights cannot be achieved in one stroke. It requires a long-term commitment and consistent efforts. By giving a Hindu law example regarding rights of property for women, I intended to emphasize that there was no unification in Hindu women’s property rights. At different points in time, it was different.
Solution For Uniform Civil Code
Every personal law has issues to address and some areas haven’t been codified yet. The first step should be identifying all personal laws, classifying them according to religion, and further identifying areas of personal law that have not yet been codified.
Furthermore, we need to acknowledge the contradictions existing within the existing laws and suggest how to remove them. At the first opportunity, laws must be codified in any case where necessary to ensure the equality and inalienability of all. These codified laws must adhere to both secular laws and different judgments.
When the laws are codified, each law will automatically be subject to the scrutiny of Part 3 of the Constitution, i.e. the part dealing with fundamental rights.
The answer to UCC can never be ‘yes’ or ‘no’ and there is no one-word answer to this question of UCC. Throughout the process, people’s rights have been ensured and must continue to be ensured.
Unification of codes cannot take place until society is serious about the codification of codes. Codification is a prerequisite to unification.