Author: R. Tejasree (Damodaram Sanjivayya National Law University,DSNLU)
To the point
The Uniform Civil Code (UCC) refers to a common set of laws intended to regulate personal matters like marriage, divorce, adoption, inheritance, and succession for all Indian citizens, regardless of their religion. Article 44 of the Indian Constitution, under the Directive Principles of State Policy, outlines this concept by stating that the state should strive to implement a uniform civil code across the entire country. However, this provision serves as a guideline and is not legally binding or enforceable by any court.
Abstract
This composition examines the Uniform Civil Code in India as both a constitutional pledge and a socio-political challenge. It explores the legal frame, the justice around personal laws, the constitutional balance between secularism and religious freedom, and the pursuit of gender justice. While the Directive Principles of State Policy advocate for a UCC, its performance has been defied based on religious autonomy and nonage rights. The composition offers a critical assessment of the role of the legal community, recent legislative changes, ongoing political discussions, and comparative insights from other legal systems. It also discusses the Law Commission’s reports and Supreme Court verdicts that have influenced the discourse. The conclusion aims to reflect a way forward through consultative and inclusive reform.
Use of legal jargon
Personal Laws refer to the legal fabrics that govern matters like marriage, divorce, inheritance, and adoption, which differ across religious communities. Article 44, a Directive Principle of State Policy, urges the State to work towards securing a Uniform Civil Code for all citizens throughout India. Secularism, as emphasized in the Preamble, means that the State remains neutral and does not favor any particular religion or belief system. The conflict between Fundamental Rights and Directive Principles highlights the tension between enforceable rights under Part III and the non-justiciable ideals in Part IV. The Essential Religious Practices Doctrine is a jurisprudential test developed by the judiciary to determine what falls under the protection of Article 25, which ensures freedom of religion.
The Proof lies in constitutional mandates and judicial pronouncements:
Article 44 of the Indian Constitution states that the State shall endeavour to implement a Uniform Civil Code applicable to all citizens throughout the nation. Additionally, the Preamble upholds the core values of justice, equality, and secularism as guiding principles of the nation.
Various judicial verdicts have consistently supported the implementation of the UCC to ensure equivalency and eliminate gender demarcation as seen in Shah Bano, Sarla Mudgal, and John Vallamattom cases.
Constitutional History
The initial debates began with the Sub-Committee on Fundamental Rights, which was responsible for drafting fundamental rights for the Constitution. Members like Ambedkar, Munshi, and Minoo Masani included the Uniform Civil Code (UCC) in their drafts. The Sub-Committee divided rights into justiciable and non-justiciable categories, placing the UCC in the non-justiciable section. M.R. Masani, Hansa Mehta, and Amrit Kaur opposed this placement, asserting that personal laws based on religion hindered national unity and advocated for making UCC a justiciable right. During the Constituent Assembly Debates, Draft Article 35 later Article 44 was introduced by Ambedkar, placing UCC in the Directive Principles and thus making it non-mandatory. Muslim leaders like Ismail Sahab and Pocker Sahib Bahadur opposed the UCC, arguing it violated religious freedom and could lead to disharmony. In defense of the UCC, K.M. Munshi emphasized its role in national unity and secularism while also acknowledging concerns from Hindu communities. Alladi Krishnaswami Aiyyar supported UCC for promoting harmony and questioned the absence of opposition to the existing common criminal code. Ambedkar highlighted the optional nature of the UCC and its placement in the Directive Principles as a form of compromise.
In Defence of Uniformity: Arguments for UCC
Legal Equality and Religious Neutrality
The UCC promotes equal treatment for all citizens, regardless of religion, aligning with Article 14 of the Constitution. It aims to unify marriage laws, supporting gender justice and removing religious disparities. Uttarakhand’s UCC, which bans polygamy and sets a uniform marriage age of 21, serves as a recent example.
Women’s Empowerment
Many personal laws are biased against women. A UCC could help eliminate practices like triple talaq, child marriage, and gender-based inheritance inequality. According to NFHS-5, over 23% of women aged 20–24 were married before 18 uniform laws could help reduce this.
Simplification of Laws
India’s plural legal system creates confusion and delays. A UCC would replace multiple personal laws with a single framework, easing the burden on courts and helping citizens better understand their rights.
National Integration
By focusing on citizenship rather than religion, a UCC would foster a sense of unity and constitutional identity. Just as the Indian Penal Code applies uniformly, civil laws too can reflect a common national standard.
Social Reform and Modernization
The UCC offers a chance to update outdated customs across communities. It could address evolving issues such as LGBTQ+ rights in marriage, adoption, and inheritance, following the spirit of progressive judgments like the 2018 decriminalization of homosexuality.
Global Best Practices
Countries like Turkey have successfully adopted secular civil codes. Implementing a UCC could improve India’s alignment with international human rights norms and boost its ranking on global indices like the Global Gender Gap Index, where India currently ranks 129 out of 146 countries.
Criticisms and Concerns Surrounding the UCC
Cultural Diversity at Risk
India’s personal laws reflect its rich cultural and religious diversity. Critics fear that a UCC could lead to cultural homogenization, erasing distinct traditions such as the Khasi tribe’s matrilineal inheritance system.
Threat to Religious Freedom
Opponents argue that a UCC may violate Article 25, which ensures freedom of religion. Since many personal laws are intertwined with religious beliefs, any uniform law may be seen as interference. A 2021 Pew survey showed 84% of Indians value religion deeply, suggesting potential resistance.
Impact on Minority Rights
Minorities, comprising over 19% of India’s population, worry that a UCC might reflect majority norms, sidelining their customs. In Uttarakhand, for instance, the state UCC drew criticism from minority communities for lack of adequate representation.
Implementation Challenges
Creating a universally acceptable UCC in a diverse nation is extremely complex. In 2018, the Law Commission remarked that implementing such a code is “neither essential nor advisable” at the current time. Even within Hindu law, variations like the Hindu Succession (Kerala Amendment) Act, 2015, demonstrate regional legal differences.
Federalism and State Rights
Personal laws fall under the Concurrent List, meaning both Centre and States can legislate A Uniform Civil Code implemented at the national level might encroach upon state authority, leading to constitutional questions regarding the balance of federal power.
Economic and Logistical Burden
Implementing UCC would require extensive legal restructuring training lawyers, updating laws, and managing court transitions. With 47 million pending cases, critics argue this effort could strain an already overburdened judiciary.
Way Forward for Implementing UCC
Inclusive and Transparent Dialogue
Nationwide consultations with religious leaders, legal experts, civil society, and community representatives are essential. Open discussions and public engagement can build awareness, reduce resistance, and help form a consensus.
Phased and Gradual Implementation
Rather than a sudden overhaul, UCC should be introduced step-by-step, starting with widely agreed reforms like setting a uniform marriage age and ensuring equal inheritance rights for women. This provides an opportunity for society to adjust and for the legal system to be adequately prepared.
Protection of Minority Rights
Any UCC must include strong constitutional safeguards to protect minority traditions. A dedicated oversight body and mechanisms for limited exemptions (where fundamental rights are not violated) can help balance uniformity with cultural preservation.
Learning from Experience
Policymaking should be guided by evidence from existing models like Goa’s civil code and Uttarakhand’s UCC. These case studies can offer practical insights into what works and what challenges to anticipate.
Case laws
1. Shah Bano case (1985)
In the 1985 Shah Bano case, a 73-year-old woman named Shah Bano was divorced by her husband through triple talaq and subsequently denied maintenance. She took legal action, and both the District Court and the High Court ruled in her favour. However, her husband challenged the verdict in the Supreme Court, arguing that he had met all obligations under Islamic law.
The Supreme Court upheld the earlier rulings, granting her maintenance under Section 125 of the Criminal Procedure Code, which is applicable to all citizens regardless of religion. The Court also used the case to highlight the need for a Uniform Civil Code in India.
2. Shayara Bano v. Union of India (2017)
In Shayara Bano v. Union of India (2017), the Supreme Court declared triple talaq unconstitutional, ending the practice of instant and irrevocable divorce by Muslim husbands. In response, the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was enacted, criminalizing triple talaq as a non-bailable and cognizable offence, punishable with up to three years in prison and a fine. This Ordinance was later formalized as the 2019 Act, effective from September 2019.
Following its enactment, Islamic scholar groups and the Rashtriya Ulema Council challenged the law. The Supreme Court admitted her plea, tagging it with the earlier cases. These petitions argue that the law violates fundamental rights under Articles 13, 14, 15, 21, and 25 of the Constitution, and describe the law as harsh, excessive, and disproportionate.
Goa Civil Code:
Goa is the only Indian state that enforces a Uniform Civil Code (UCC) through a common family law, derived from the Portuguese Civil Code introduced in the 19th century, which continues even after Goa’s liberation.
The Goa UCC is known for its progressive features, such as equal division of income and property between spouses and equal inheritance rights for children, regardless of gender. It requires the mandatory registration of births, marriages, and deaths. Provisions also exist for formal divorce procedures.
Importantly, Muslims in Goa who register their marriages under the civil law cannot practice polygamy or use triple talaq for divorce, unlike in other Indian states.
During marriage, all assets acquired or owned by either spouse are jointly held. Upon divorce, both partners are entitled to an equal share, and in the case of death, half the property goes to the surviving spouse.
Additionally, parents are required to leave at least 50% of their property to their children, which must be equally divided among them. Disinheriting children entirely is not allowed under this code.
However, the code is not entirely uniform. For instance, under the customary Hindu laws in Goa, a Hindu man may practice bigamy under certain conditions such as if his wife has not given birth to a child by the age of 25 or has not borne a male child by the age of 30. Such exceptions are not extended to other communities, where polygamy is prohibited.
In summary, while Goa’s civil code promotes equality and legal uniformity in many areas, certain religious exceptions limit its full uniform application across communities.
Conclusion
The concept of a Uniform Civil Code embodies the principles of equality, justice, and secularism, but it must be implemented thoughtfully, keeping in mind India’s constitutional framework and social complexities. A balanced approach one that respects the country’s cultural diversity while addressing discrimination can help establish a UCC that promotes national integration without compromising individual rights. Achieving this vision requires inclusive legal dialogue and reforms that uphold the constitutional guarantee of equality for every citizen.
FAQS
1. What is the basic idea behind the Uniform Civil Code (UCC)?
The Uniform Civil Code is founded on the principles of equality, justice, and secularism. It seeks to provide uniform personal laws for all citizens, regardless of religion, to ensure equal rights and treatment under the law.
2. Why does the implementation of UCC require sensitivity?
Implementing UCC requires sensitivity because it must navigate India’s complex constitutional politics, religious diversity, and deeply rooted social customs. A one-size-fits-all approach may not suit the pluralistic nature of Indian society.
3. How can a balanced approach help in implementing the UCC?
A balanced approach one that respects India’s cultural and religious diversity while tackling discriminatory practices can help implement UCC in a way that promotes national unity without infringing on individual freedoms.
4. What is crucial for realizing the vision of a Uniform Civil Code in India?
Achieving UCC requires inclusive legal dialogue involving all stakeholders and well-thought-out legal reforms. The process should be transparent and committed to upholding the constitutional promise of equality for every citizen.
5. Can UCC help in promoting national integration?
By highlighting equality and a unified legal system, the UCC can enhance national integration and reinforce constitutional identity, fostering harmony among various communities.
6. Will UCC replace all personal laws immediately?
No. A gradual and phased approach is suggested to avoid disruption, starting with universally agreeable reforms and progressively addressing more sensitive areas.
