Author – Ayushi Mendhiratta, Panjab University
INTRODUCTION OF UNIFORM CIVIL CODE-
The inception of the term ‘Uniform Civil Code’ can be traced back to colonial times, particularly in 1835, when the British government deferred a report stating the urgency of creating codified laws for proper governance and administration in India. The report, however, emphasized only the codification of criminal and contractual laws. (gaur, 2024).
Uniform Civil Code incorporates three distinguished terms – UNIFORM, CIVIL, and CODE. The word ‘uniform’ refers to the same in all situations. Additionally, the word ‘civil’ is derived from the Latin term ‘Civil,’ which means citizens. Thus, the word Civil refers to the rights and remedies of an individual forming part of the society. Lastly, the word code signifies the extensive work of legislation that uniformly governs all individuals of a population. Therefore, a Uniform Civil Code necessitates the creation of one law administering the entire country on matters of divorce, inheritance, maintenance, and property, distinguishing the discriminatory practices based on religion, gender, ethnicity, and caste. (singh, 2024).
Article 44 of the Indian constitution states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” (INDIAN KANOON, n.d)
However, during colonial times and the post-independence era of India, the creation of UCC sparked controversial debates throughout the country, resulting in the codification of only Hindu laws post-independence. Thus, the idea of UCC for a secular country like India formed part of the Directive Principles of State Policy, emphasizing the role of the State to strive for the creation of UCC in the future.
In 2019, the implementation of UCC in India formed part of the BJP government’s Lok Sabha election manifesto. Even after more than 70 years of independence, the conception of UCC suffered from opposition and challenges, resulting in a lack of successful implementation.
HISTORY OF UCC DURING BRITISH TIME IN INDIA –
The early conceptual development of UCC can be traced back to the colonization of India during British times. The Charter Act of 1833 mentioned the establishment of a law commission with lord Macaulay as its chairman, assigned with the task of codifying Indian laws. (Ministry of Law and Justice, Government of India, n.d.) In 1835, the British government created a report stating the need for uniform laws in the areas of crimes, pieces of evidence, and contracts for the efficient administration of the country. The report kept the codification of personal laws outside its purview due to fear of riots and chaos, facing opposition from religious leaders.
This decision of non-interference in personal laws was further clarified in the lex loci report of 1840 (UPSC Notes, n.d..). Nevertheless, to govern the areas outside the presidential town, the substantive law of England was put into application, subject to some restrictions, namely, the laws should be suitable to the Indian conditions, and they should not be contrary to the presidential rule and regulations. (first law commission, n.d.).
Further, Indians backlashed the oppressive socio-economic policies adopted by the British government, which led to India’s first war of Independence. Consequently, to maintain the stability and legitimacy of British governance, they avoided the codification of personal laws.
The British government followed the policy of non-interference in personal matters in the Queen’s proclamation of 1959. The policy clarified that the personal disputes or issues related to civil matters, namely divorce, maintenance, and property, would be dealt with by Civil courts or panchayats. Personal laws were to prevail according to the established customary laws and traditions. Nevertheless, if the disputes are between different religious communities, they would be circumscribed as exceptional cases to be dealt with by the intervention of the State (wikipedia.com, n.d).
RATIONALE BEHIND NOT CODIFYING PERSONAL LAWS DURING BRITISH PERIOD: –
Several reasons justified the Britishers’ non-codification of personal laws during their administration, which tread on the heels of –
- Non–interference policy – the policy of non-interference in regulating the personal matters of the individuals as adopted in Queens Proclamation of 1859 aided in avoiding the backlash which could have led to communal riots and conflicts.
- Respecting the Diversity of Indian Society – Each community has its own culture and tradition, making it onerous to implement a uniform civil code for the entire country.
This assisted the Britishers in maintaining their autonomy and authority to rule in India. (constitutional challenges to personal laws, n.d.)
- Culture aggressiveness – the British government was skeptical about them being perceived as insensitive towards other cultures and traditions. They were not in a position to directly challenge deeply imbibed cultural laws and practices. This resentment became more evident when Britishers tried to evade the social issues, namely Child marriage and Sati pratha. (laws and british empire , n.d.).
ROLE PLAYED BY COMMUNITY / RELIGIOUS LEADERS IN SHAPING THE LEGAL SYSTEM DURING COLONIAL TIMES: –
Several community leaders, such as Maulvis and Brahmin pandits, helped European courts to interpret the personal laws correctly and efficiently to deal with personal matters.
Additionally, to ensure that justice was delivered effortlessly, community leaders ensured that local laws were applied while dealing with civil disputes in Diwani and criminal disputes in Faujdari Adalat, keeping in view the customary practices adopted by the litigants. (judicial system in brtish india, n.d.).
Despite that, the local leaders faced certain criticism and limitations as they were not allowed to advocate as legal practitioners in the Higher Courts due to racial bias.
INCORPORATION OF ARTICLE 44 IN DIRECTIVE PRINCIPLES OF STATE POLICY: A CONSTITUENT DEBATE –
The constituent assembly, while drafting the Indian Constitution, distinguished between justiciable and non-justiciable rights. On 23rd November 1948, the idea of UCC attracted strong support and equally strong discontent. Prominent leaders and lawyers K.M. Munshi, Alladi Krishnaswami Ayyar advocated for the implementation of UCC by arguing that the adoption of uniform civil laws would envisage the idea of non-discrimination and promote gender equality. They affirmed that personal laws governing divorce, inheritance, etc, needed reforms to foster Uniformity in newly Independent India.
Nevertheless, leaders such as Mohammad Ismail, Naziruddin Ahmad criticised the idea of UCC by arguing that the implementation of UCC will deprive communities of their right to practice their religious beliefs and obligations. The enactment of the UCC came with the probability of inducing communal riots and tensions. To dwindle the risk of anxiety and pressure, the latter went far by proposing amendments to the language of the drafted article 35 ( presently 44) from the “ state shall endeavour to state may endeavour”. H.C. Mookherjee, a Christian leader from Bengal, feared that the minority communities would be left at stake for consultation and enactment of uniform civil laws.
To counterbalance the arguments from both sides, Dr BR Ambedkar, the then chairman of the drafting committee, insisted on adopting UCC as DPSP, which are non-justiciable rights, thus non-enforceable by courts, serving as a guiding principle for states to reform Indian society in the future. He remarked that the social change should be evolutionary rather than revolutionary. Thus, UCC under Article 44 was deliberately enshrined under Part IV of the Indian Constitution.
CURRENT LEGAL POSITION OF UCC IN INDIA –
Despite being a constitutional goal and the political manifesto of the current ruling party (THE BHARTIYA JANTA PARTY ), the implementation of UCC is still in process. The country fosters the illustration of GOA, a state that obeys the UCC as per the Portuguese Civil Code of 1867, regardless of a person’s religion.. Despite the debates, personal matters of marriage, divorce, inheritance, etc, are governed by religion-specific codes, namely Hindu law or Muslim law, etc.
Nonetheless, the well-known judgments furnished by the Hon’ble Supreme Court in the case of Shah Bano ( 1985) and Shayara Bano ( 2017) assisted in attaining equal rights for muslim women, stimulating reforms within personal laws.
Hoping to the year 2024, Uttarakhand implemented Article 44 at the state level, marking itself the first state to enact UCC in post-independent India. An expert-level committee headed by Justice Ranjana Prakash Desai (former Supreme Court judge) was formulated in the year May 2022 to tailor an evidence-based and consultation-based UCC, respecting constitutional provisions.
Nevertheless, the state faces several political and social challenges in implementing UCC. Firstly, the minority community, mainly Muslims, fear that the enactment of UCC undermines their religious freedom under Article 25. Secondly, UCC mandates the compulsory registration of marriage and divorce, disregarding the lack of legal infrastructure in rural areas. Moreover, the implementation of UCC exempts various communities, including Schedule tribes, undermining the goal of ‘ uniformity’.
CONCLUSION ( WAY FORWARD ) –
The way forward for UCC is by harmonising communal conflicts and the adoption of national-level consultation among various stakeholders. The linchpin of the constitutional goal is to promote equality among all religious identities, rather than to challenge the rituals and customs of religious communities. The goal of uniformity needs crucial support from the central government and the Hon’ble Supreme Court, building consensus amongst the citizens while protecting the country’s diverse culture.
BIBLIOGRAPHY-
- Team, N. I. (2024, November 19). judicial system in British India. NEXT IAS Blog.
- P. S. (2024). CONSTITUTIONAL CHALLENGES TO PERSONAL LAWS. In VISHWAKARMA UNIVERSITY LAW JOURNAL: Vol. IV (Issue I, pp. 1–1). < https://vulj.vupune.ac.in/archives6/3.Constitutional%20Challenges%20to%20
- Wikipedia contributors. (2025, March 3). Uniform Civil Code. Wikipedia. <
https://en.wikipedia.org/wiki/Uniform_Civil_Code >
- Macually, T. B., Cameron, C. H., MacLeod, J. M., Anderson, G. W., Millet, F., First Law Commission, Amos, A., Rayan, S. E., Lowe, R., Sherbooke, Lord, Cameron, V. H., MacLeod, J. M., & Ellis, T. F. (n.d.). First Law Commission. < https://law.uok.edu.in/Files/5ce6c765-c013-446c-b6acb9de496f8751/Custom/UNIT%20-%204.pdf >
- Admin. (2024, February 23). What is Uniform Civil Code in India | Article 44 [UPSC Notes]. BYJUS. < https://byjus.com/free-ias-prep/need-for-a-uniform-civil-code-in-asecular-india/ >
- Singh, S. (2024). Unraveling the Uniform Civil Code (UCC): Evolution, implications, and
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