ArticlesConstitutional Law

Implementing a Uniform Civil Code in India: Challenges and Opportunities

Implementing a Uniform Civil Code in India: Challenges and Opportunities

Written by Aditya Shaurya

Abstract

The study focuses on issues related to the absence of a Uniform Civil Code, highlighting the challenges faced by the country due to the application of personal laws to its citizens. India, a diverse nation with various religions and languages, is united by a sense of nationalism despite its many divisions. Presently, individuals are governed by their respective personal laws concerning marriage, inheritance, and divorce.

The Constitution’s preamble emphasizes secularism and guarantees freedom of religion to citizens, barring the State from interfering in personal religious matters. Indian secularism demands that the State maintains neutrality towards religion, treating all citizens equally under the principle of “Sarva Dharma Sambhava”. Some scholars argue that the social fabric of India is not sufficiently developed to implement a Uniform Civil Code (UCC), making it a subject of ongoing debate in the country.

The extensive cultural and religious diversity in India makes the imposition of a UCC seem like an unnecessary intrusion of State law that could potentially violate religious customs and practices. Furthermore, unifying various tribes within the country would pose a significant challenge if a UCC were to be enforced. Tribes often prefer to adhere to their customs, having been assured the freedom to do so, which is also recognized in secular procedural laws.

As we delve deeper into the exploration within the research paper, the focus shifts to the correlation between the Uniform Civil Code and Secular, highlighting the potential repercussions of implementing the Uniform Civil Code on national unity, peace, and societal cohesion. Additionally, it delves into the aspects of the Uniform Civil Code about constitutional assurances. The paper also delves into the legal perspectives and rulings of the Indian Judiciary regarding the Uniform Civil Code. Finally, the paper presents a series of recommendations and conclusions.

Achieving a consensus among the diverse communities in India to implement a UCC nationwide would be a formidable task in the present scenario.

Introduction

A Uniform Civil Code (UCC) aims to consolidate all personal laws into a single set of secular laws that apply to all Indian citizens regardless of their community. While the specific details of this unified code have not been outlined, it is expected to embody the most modern and progressive elements of existing personal laws while eliminating regressive ones. The Constitution’s directive principles state that the State should strive to establish a UCC across India, although these principles are not legally binding.

Despite the constitutional support for a UCC, its implementation remains optional, sparking an ongoing debate in India. The Constitutional Assembly extensively discussed the Uniform Civil Code (UCC), with some Muslim members expressing dissent over its inclusion in the Constitution. Mr. B. Pocker Sahib Bahadur raised questions about the meaning and purpose of the UCC. The absence of a specific standard law raised concerns among Muslim members who aimed to avoid the imposition of majority laws. Unfortunately, this unwarranted anxiety overshadowed the necessity of fostering a strong national identity. Muslim members believed that the civil code should not interfere with an individual’s laws. Addressing the doubts surrounding the UCC term and its purpose, Shri K.M. Munshi explained that the provision aimed to eventually unify the country’s laws when deemed appropriate by the Parliament or its majority. Dr. B.R. Ambedkar, chair of the Drafting Committee, clarified that the UCC aimed to ensure uniformity in laws related to marriages, divorce, and succession, regardless of religion or community affiliations. Justice M.C. Chagla passionately stressed the mandatory nature of Article 44, compelling the government to uphold and implement its provisions. He emphasized that the Constitution applied to the entire nation, requiring all sections and communities to abide by its directives.

The Preamble of the Constitution states that India is a Secular, Democratic and republican country. This means that there is no State religion. A secular State shall not discriminate against anyone on the grounds of religion. Religion is only concerned with the relation of man with God. It means that religion should not interfere with the mundane life of an individual. The process of secularization is intimately connected with the goal of a uniform civil code like cause and effect. That is to say, religion of an individual should only determine which God or entity he worships and not what laws govern him. Laws as such should not emancipate from religious understanding but from the Sovereign text of the Nation, in the case of India that would be the Constitution. Hon’ble Justice Jeevan Reddy while observing S.R. Bommai v. Union of India, held that religion is a matter of individual faith and cannot be mixed with secular activities and can be regulated by the State by enacting a law.

The issue at hand is the presence of disparities and inconsistencies in personal laws, lacking uniformity. Women have faced instances where these laws infringed on their rights. To address these issues, the implementation of a Uniform Civil Code is proposed. This code suggests a standardized personal law applicable to all citizens, replacing religious personal laws in India. Envisioned in Article 44 of the Constitution, the Uniform Civil Code has faced strong opposition as it is seen as conflicting with Article 25.

UCC stands for Uniform Civil Code in India, which implements a unified set of secular civil laws for all citizens irrespective of their religious or regional backgrounds. This overrides the practice of individuals being governed by diverse personal laws based on their religion or ethnicity. Most modern nations have similar codes in place. It is widely accepted that the concept of UCC primarily originated in independent India.

This paper intends to explore the concept of the Uniform Civil Code practically, ensuring its proper implementation in India and assessing its suitability for a diverse country like India, with a focus on its legal implications.

Research Methodology

I have conducted a review of existing data sources for this study. It is primarily focused on legal principles. Various sources such as commentaries, books, articles, and case laws have been consulted to encompass different perspectives from numerous legal experts. The goal is to offer a comprehensive outlook and analyze the trends in judicial decisions.

Research Question

Whether the Uniform Civil Code be a blend of personal laws or a new law?  

Review of literature

The connection between law and religion in India hinders the reform of religious personal laws, perpetuating the inequality faced by Indian women. The ongoing discussion revolves around the uncertainty surrounding secularism in India’s democracy. The concept of a Uniform Civil Code in India questions whether it should override individuals’ rights to be governed by their religious or ethnic personal laws. Despite the introduction of the bill on the Uniform Civil Code in the Indian parliament, it was opposed and never became law. The debate continues, citing objections based on religious beliefs, with arguments made on the need to strive for equality as mandated by the Constitution. Various publications highlight the complexities of implementing a Uniform Civil Code in India and stress the importance of revisiting this long-neglected concept. Discussions examine the challenges, propose guidelines, and contemplate the potential for successful implementation without causing unrest. Comparisons between the Uniform Civil Code and existing Hindu and Muslim personal laws are analyzed objectively to the necessity of amendments and their timeliness.

Objectives

  1. To understand the practical problems in the implementation of a uniform civil code.
  2. To study if the uniform civil code is violative of Article 25 of the Indian Constitution.

Hypothesis

The Uniform Civil Code is not violative of Article 25 of the Constitution of India.

Uniform Civil Code and The Personal Laws

In the past, Hindu women didn’t have the same rights as men, especially in matters like marriage, inheritance, and property ownership. Before 1955, men could have multiple wives, and women couldn’t fully own property except for specific cases like Stridhan. When a woman died, her property typically passed to male relatives. She had limited control over her property and couldn’t sell or mortgage it without permission.

In India, Hindu women historically lacked rights like adoption and being the natural guardians of their children. Despite codified Hindu laws, discriminatory practices persist, like women being excluded from coparcenary shares in many states. Similarly, in pre-Islamic Arabia, women had secondary status, which continued even after Islam’s arrival. While the Quran preaches equality, some Islamic practices disadvantage women, such as polygamy and limited divorce rights. In matters of inheritance and maintenance, Muslim women often face discrimination. Despite secular laws mandating husband’s support, there’s controversy over Muslim men adhering to them.

In the famous case of Mohd Ahmed Khan v. Shah Bano Begum, the Supreme Court speaking through Y.V. Chandrachud, the then Chief Justice held that Section 1257 of the Criminal Procedure Code is also applicable to Muslims and that even a Muslim husband is liable to maintain his divorced wife beyond the iddat period. The controversy began and the parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to overrule the judgement in the Shah Bano Case. The effect of this act is that a Muslim husband is not liable to maintain his divorced wife beyond the iddat period unless both spouses submit to the court at the appropriate time that they would like to be governed by the Criminal Procedure Code. This is like having the provision but not using it for the sake of protection of the personal law space and not giving enough justice to the woman who is suffering so much.

Uniform Civil Code and The Indian Constitution

The primary issue lies in the fact that if the framers of the Constitution had intended for a Uniform Civil code to be implemented in India, then they should not have placed it under

Article 44 of the Constitution as part of the Directive Principles of State Policy. The Directive

Principles of State Policy, found in Part IV (Art. 36 – 51), serve as mere guidelines to the State. They are not mandatory and cannot be enforced by the Court. They simply present positive obligations on the State to aid in good governance.

The Preamble of the Indian Constitution explicitly states that India is a Secular, Democratic, Republic. This signifies that there is no official State religion. A secular state must not discriminate based on religion. Religion is solely concerned with the relationship between an individual and God. This implies that religion should not interfere in an individual’s everyday life. The process of secularization is closely linked to achieving a uniform Civil Code, like a cause-and-effect relationship.

In the case of S.R. Bommai v. Union of India, Justice Jeevan Reddy established that religion is a matter of personal faith and should not be intertwined with secular affairs, but can be regulated by the State through legislation. India follows a concept of positive secularism, distinguishing it from the secularism embraced by the United States and European States where there is a clear separation between religion and the State.

Positive secularism in India separates spirituality from personal beliefs, as unlike America and the European States, India has not undergone renaissance or reformation movements. Therefore, it is the State’s responsibility to intervene in religious matters to facilitate governance. The absence of a renaissance in India contributes to the need for State involvement in religious affairs to eliminate obstacles to governance.

The idea of a uniform law that governs and guides the behaviour of people from all religions, instead of focusing on a particular section of society, is imperative. The Preamble of the Indian Constitution underscores the establishment of a “Secular” Democratic Republic, affirming that the State does not endorse any specific religion and prohibits discrimination based on religion.

Articles 25 and 26 guarantee freedom of religion and the management of religious affairs as fundamental rights, while Article 44 aims to secure a uniform Civil Code. This code should be universal, impartial, and not discriminate based on religion or faith. As discussions around a unified Personal Law emerge, the need arises to carefully balance the protection of fundamental rights with the religious principles of diverse communities in the country. Matters like marriage, divorce, and maintenance can be addressed in a secular manner through law regulation.

Legislative Efforts Made on The Part Of Government

However, it was rightly pointed out in the Constituent Assembly that not all Hindus were in favour of UCC. However, UCC has been permanently associated in the Indian mind with opposition by the Muslims. They felt that the personal law of inheritance, succession, etc. was a part of their religion. If that were so, Indian women can never be given equality with a man who is enshrined in Art.14 of the Constitution. Art. 15(1) provides that “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.” 14 Hindus have been comparatively more accepting towards a modern uniform law theory. Several laws have been legislated from the British era till date, the most recent amendment being in the Succession Act, concerning the coparcenary inheritance.

During British Period

The Indian Succession Act of 1865 was among the pioneering laws aimed at safeguarding women’s financial well-being, striving to transition personal laws into civil jurisdiction. The Marriage Act of 1864 brought reforms to Christian marriages, while other beneficial legal reforms for women included the Hindu Widow Remarriage Act of 1856, the Married Women’s Property Act of 1923, and the Hindu Inheritance (Removal of Disabilities) Act of 1928. Expressing dissatisfaction with the predominantly male Legislature, the All India Women’s

Conference (AIWC) conveyed concerns during a 1933 conference. Lakshmi Menon’s statement highlighted the challenges faced by women seeking divorce under Hindu law, emphasizing the lack of support from male legislators for significant beneficial changes. Women’s organizations advocated for a Uniform Civil Code (UCC) to supersede existing personal laws, aligning with the gender-equality assurances of the Karachi Congress Resolution. The enactment of the Special Marriage Act in 1872 offered Indian citizens an alternative to civil marriage, albeit limited to individuals renouncing their religion and restricted to Hindus. Subsequently, the Special Marriage (Amendment) Act of 1923 extended this option to Hindus, Buddhists, Sikhs, and Jains to marry according to their laws.

After British period

Hindu Code Bill: The first Prime Minister of the Indian Republic, Jawaharlal Nehru, his supporters and women members wanted a uniform civil code to be implemented by this bill. The Hindu bill itself received more criticism and the main provisions opposed were those provision which is related to monogamy, divorce, abolition of women coparcenaries rights and inheritance to daughters. The Hindu Code Bill failed to control the prevalent gender discrimination. The laws related to divorce gave both partners equal rights but the majority of its implementation was initiated by men. Since the Act applied only to Hindus, women from the other communities remained subordinated. For instance, Muslim women, under Sharia law, could not inherit agricultural land. Nehru accepted that the bill was not complete and perfect, but was cautious about implementing drastic changes which could stir up specific communities. He agreed that it lacked any substantial reforms but felt it was an “outstanding achievement” of his time. The Special Marriage Act, of 1954, provides a kind of civil marriage to any Indian citizen irrespective of their religion, thereby permitting every Indian to marry someone outside the religion. The law was applied to all of India, except Jammu and Kashmir. In many respects, the act was almost identical to the Hindu Marriage Act of 1955. The Special Marriage Act allowed Muslims to marry under it and thereby retain the protections, generally beneficial to Muslim women that could not be found in the personal law. Under this act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Muslim Personal Law.

After the passing of the Hindu Code Bill

The personal laws in India had two major areas of application: the common Indian citizens and the Muslim community, whose laws were kept away from any reforms. The frequent conflict between secular and religious authorities over the issue of uniform civil code eventually decreased, until the 1985 Shah Bano case. Bano was a 73-year-old woman who sought maintenance from her husband, Muhammad Ahmad Khan. He had divorced her after 40 years of marriage by triple Talaaq (saying “I divorce thee” three times) and denied her regular maintenance; this sort of unilateral divorce was permitted under the Muslim Personal Law. She was initially granted maintenance by the verdict of a local court in 1980. Khan, a lawyer himself, challenged this decision, taking it to the Supreme Court, saying that he had fulfilled all his obligations under Islamic law. The Supreme Court absolved her in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the Criminal Procedure Code, which applied to all citizens irrespective of religion. It is further suggested that a UCC be set up. Besides her case, two other Muslim women had previously received maintenance under the Criminal code in 1979 and 1980. An independent Muslim parliament member proposed a Bill to protect their law in the parliament. The Muslim Women’s (Protection of Rights on Divorce) was passed in 1986, which made provision for Maintenance under Section 125 of the Criminal Procedure Code wherein would not apply to Muslim women.

A critical review of available laws

The Uniform Civil Code (UCC) is not considered a fundamental right but instead falls under the Directive Principles of State Policy. Therefore, there are no specific laws dedicated to this issue. Some statutes and laws include provisions related to the implementation of a uniform civil code.

An unsuccessful attempt was made towards implementing the UCC through the Shah Bano case ruling. Despite this, the Government of India proceeded by enacting the Muslim Women (Protection of Rights on Divorce) Act in 1986, making sections 125-127 of the Criminal Procedure Code optional for divorced Muslim women. The delay in implementing a uniform civil code reflects a lack of social acceptability and legitimacy. Article 44 of the Indian Constitution mandates that the State strive towards achieving a UCC that considers the coexistence of different personal laws in the country.

For over 70 years, the objective of a UCC has not been achieved. The past five decades have been unproductive, marked by a failure to gather relevant data on various groups and communities, as well as a lack of awareness about the concept of a UCC. The term “Uniform Civil Code” itself has not been thoroughly examined. There is a need to determine whether we seek a Uniform Civil Code or a Common Code – and if these concepts are synonymous. Questions about borrowing elements from existing personal laws in India for a Common Code have not been addressed. Furthermore, the absence of a ‘perfect’ law to serve as a blueprint for new personal laws remains a challenge.

The Constitution is ambiguous itself, as it declares India a secular state while also endorsing state intervention in personal laws, which seemingly contradicts secular principles. While Articles 25 and 26 guarantee freedom of religion and the management of religious affairs, Article 44 skillfully avoids demanding the abrogation of all personal laws and the imposition of a UCC on all citizens.

  • There are so many controversial debates and opinions as the researcher found regarding UCC.
  • Indian society is not up to that mark which can utilize UCC.

Uniform Civil Code in Goa

Goa is the only state in India that has a uniform civil code regardless of religion, gender, or caste. Goa has a common family law. Thus, Goa is the only Indian state that has a uniform civil code.

In Goa Hindus, Muslims, and Christians all are bound by the same law related to marriage, divorce, and succession. When Goa became part of union territory in 1961 by the Goa Daman and Diu Administration Act 1962 the parliament authorized the Portuguese civil code of 1867 to Goa and shall be amended and repealed by the competent legislature. In Goa marriage is a contract between two people of different sexes to live together and constitute a legitimate family which is registered before the office of the civil registrar. The particular rules and regulations have to be followed by the parties after that they can live together and start their life but there are certain restrictions according to which these categories of person are prohibited from performing a marriage for example: any spouse convicted of committing or abetting the murder of another spouse shall not marry.

Special Marriage Act, 1954

This form of marriage act provides a civil marriage of two people of different sex irrespective of their religion. This law prevailed in India to have their marriage outside the customs of their law. This law is applied in all over India except Jammu and Kashmir because they have been given special status under Article 370. His law is almost identical to the Hindu Marriage Act 1955 this law gives an idea of how the law is secularized towards the Hindus. The special marriage allows all Muslim community people to marry under it. Under this act polygamy was illegal and the system of succession would be governed by the Indian Succession Act even the system of divorce is also governed by this law. But for divorce, certain provisions are followed in Goa. Muslim community people that have registered their marriage in Goa cannot take more than one wife according to this act and during the marriage period all the property and wealth owned by the couple each spouse has the right in the property the share half –half of the property and if a spouse dies the half share of the property went to the other. The other half property was divided between the children in the same ratio.

Judicial Interpretation

Even after more the five decades from the framing of the Constitution, the idea of UCC under Article 44 is yet to be achieved. However, efforts in this discretion continued as reflected in various pronouncements of the Supreme Court from time to time.

In Mohammad Ahmed Khan v. Shah Bano Begum, 15 popularly known as the Shah  Bano’s case, the Supreme Court held that “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter.” Despite section 127 of Cr.P.C. 1973 (which provides that if a woman has received an amount under personal law, she would not be entitled to maintenance under section 125 of Cr.P.C. 1973 after divorce) Muslim women would be entitled to maintenance if the amount received by her as “dower” under personal law is not sufficient for her sustenance. Though the decision was highly criticized by Muslim Fundamentalists, it was considered a liberal interpretation of the law as required by gender justice. Later, under pressure from  Muslim fundamentalists, the Central Government passed the Muslim Women’s (Protection of Rights on Divorce) Act, 1986, which denied the right of maintenance to   Muslim women under section 125 of Cr. P.C. The activists rightly denounced that it “was doubtless a retrograde step. That also showed how women’s rights have a low priority even in the secular state of India. Autonomy of a religious establishment was thus made to prevail over women’s rights.”

In Sarla Mudgal (Smt.), and others v. Union of India and others, Kuldeep Singh, J., while delivering the judgment directed the Government to implement the directive of Article 44 and to file an affidavit indicating the steps taken in the matter and held that  “Successive governments have been wholly remiss in their duty of implementing the Constitutional mandate under Art. 44. Therefore, the Supreme Court requested the Government of India, through the Prime Minister of the Country to have a fresh look at Art. 44 of the Constitution of India and Endeavour to secure for its citizens a UCC throughout the territory of India.” He also suggested the appointment of a committee to enact a Conversion of Religion Act. R.M. Shahai, J., while agreeing with Kuldip  Singh, J., too agreed that “Ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentiality civil and material freedoms, are not autonomy but oppression.”

Conclusion

After studying the facts, judgments and social history of our Nation and forming a holistic approach towards UCC, it can be concluded on the following observations. Some provisions of the Constitution make implementation complicated as Art 44 of the Constitution talks about UCC for the citizens and on the other hand Art 37 states that “the provisions of Part 4 shall not be enforceable in any Court…” in the next part, it seems to have created a duty on the State to apply these principles in making laws, by stating “…but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” Therefore, we can say that Art 37, makes it a duty of the State to make UCC for its citizens because it became fundamental in the governance of the Country. It appears to be a Duty against which there exists no legal right that can be enforced on the breach of such duty by the State. If we look at the preamble of the Constitution there is a term secular and the citizens are granted freedom of religion and being a secular state, the state should not interfere in matters of an individual’s religion. On the other hand, we can say that individual rights do not affect the unity and integrity of India because religion is only a matter of individual faith which cannot mixed with secular activities and can be regulated by the State enacting a law which is already held by the Supreme Court in the case of S.R. Bommai v. Union of India.

It can be concluded by saying that the UCC amounts to equal laws for all sections of society. All the people of India must be governed by one set of laws. For National unity and secularism, UCC is necessary. Our society is not up to that standard which can utilize the  “UCC” and thus still UCC is still awaiting to be done. What is the reason behind it the researcher observed India is a multi-religious Country. A lot of cultures are there and such culture, tendencies and behaviour of the citizens are full of diversity. Though we say India offers Unity in Diversity not in all respect otherwise UCC could have been enacted long back.

It is also clear that the Uniform Civil Code is not violative of Articles 25 and 26 of the Constitution. It should rather be a new law than a blend of personal laws. The problem with blending personal laws is that there is every chance for a bias to arise. The Parliament should introduce a new code similar to the Special Marriage Act of 1954 which does not extend any favours or bias towards any religion. What the people must understand is that religion and laws are two different concepts. This is because the Constitution allows the people to follow their religion which will continue despite the enactment of a uniform code. The uniform code will not curb their right to follow or profess their religion. For example, the religious scriptures prescribe punishments for crimes but the Indian Penal Code, 1860 is the only penal law that is followed in India. Thus, it is high time that people start viewing religion and law as two different concepts and focus on the empowerment of all classes of people. There is an urgent need to bring in uniform laws in India.

Admin

I am a law graduate. I have done my BSc in Maths, after that I move to the law side and completed my LLB from the Shoolini University, Solan, Himachal Pradesh. Now I m doing law practice in the court. This is my first blog and I love to share my knowledge with the people. Keep visiting.

Related Articles

Leave a Reply

Your email address will not be published. Required fields are marked *

Check Also
Close
Back to top button