Author: Supriya Pathak , Delhi Metropolitan Education
Introduction
India, as the world’s largest democracy and a secular state, boasts a highly diverse population encompassing numerous linguistic, cultural, and religious identities. Religion significantly influences Indian politics and society, forming the cornerstone of Indian culture. The majority of Indians identify with one religion, with Hinduism being the most prevalent, followed by Islam, Christianity, Sikhism, Buddhism, and Jainism. For centuries, personal laws rooted in religious beliefs have governed various aspects of life, including marriage, succession, inheritance, adoption, maintenance, and guardianship, leading to differential treatment across different religious communities.
The idea of a Uniform Civil Code (UCC) was first proposed in the Constituent Assembly in 1947 to promote national unity and provide uniformity in law application. Article 44 of the Indian Constitution, part of the Directive Principles of State Policy, urges the state to strive for a UCC across India. However, despite over 60 years since independence, the UCC has not been implemented due to several challenges.
One major obstacle is the diversity of beliefs, customs, and practices among various religious groups. Personal laws based on religious beliefs have long maintained social harmony and peace. Practices and beliefs of one religion might conflict with another, necessitating separate personal laws. Consequently, the justice system must adapt to different situations, resulting in varied laws for different religious communities.
However, these differing personal laws have led to discrimination, inequality, and inconsistency. The UCC aims to provide a common legal framework for all citizens, regardless of religion, gender, or other identities, ensuring equal rights and opportunities for everyone and impartial justice.
Historical Background and Constituent Assembly Debates
The Sub-Committee on Fundamental Rights included the UCC as a Directive Principle of State Policy. Article 35 of the draft Constitution stated: “The State shall endeavour to secure for citizens a Uniform Civil Code throughout the territory of India.” However, it was recommended that its application be entirely voluntary.
Muslim representatives strongly opposed the motion, arguing that interference in Muslim Personal Laws would infringe on their Fundamental Rights. They proposed amendments to Article 35 to ensure that personal laws would remain unaffected and could not be changed without prior approval from the respective communities.
Dr. B.R. Ambedkar, the principal architect of the Indian Constitution, refused to accept these amendments. He strongly advocated for a UCC, pointing out that India already had a uniform Criminal Code and a nearly uniform Civil Code, with the exception of marriage and succession laws.
The UCC was ultimately included in the Indian Constitution as Article 44, which is part of the non-enforceable Directive Principles of State Policy. Article 44 reflects the framers’ vision of a common civil code applicable to all citizens, promoting national integration and social harmony.
However, Article 44 is not legally enforceable, and the Constitution also guarantees the right to freedom of religion and the right to practice and propagate religion (Articles 25-28). These fundamental rights are often seen as conflicting with the idea of a UCC. Opponents argue that a UCC would violate their religious rights and cultural practices, as personal laws are integral to their religious identities.
The historical and constitutional background of the UCC sets the stage for ongoing debates. Proponents argue that a UCC is necessary for gender equality, social justice, and national integration. They highlight that existing personal laws have been criticized for discriminating against women and perpetuating patriarchal norms. The UCC is seen as a way to address these issues, promoting gender justice and individual rights, harmonizing personal laws, and fostering national unity.
Opponents, however, fear that a UCC would homogenize India’s diverse society, violating religious rights and cultural practices. They argue that personal laws, based on religious scriptures, customs, and traditions, are crucial to cultural and religious identities. They stress the need to respect the diversity and autonomy of different religions and communities, and raise concerns about potential erosion of cultural and religious identities.
In conclusion, the historical and constitutional context of the UCC in India highlights the complex tension between the need for gender and social justice, and the preservation of religious freedom and cultural diversity. Finding a balance between these conflicting interests requires careful consideration of various legal, social, and cultural factors, and meaningful engagement with all stakeholders.
UCC and Conflicts of Personal Laws
Personal laws in India vary by religion. Hindu law, Muslim law, Christian law, and Parsi law govern personal matters like marriage, divorce, inheritance, and adoption for their respective communities. These laws are deeply rooted in religious and cultural traditions, and attempts to reform them are often seen as attacks on religious identity. This results in significant disparities in personal laws based on religion, leading to discrimination and injustice.
Conflicts in Hindu Personal Law
The UCC has been a subject of debate and controversy in India, with some arguing for its necessity to promote gender equality and social justice, while others fear it could violate constitutional guarantees of religious freedom and cultural diversity. In Hindu law, several cases highlight conflicts with the UCC.
One significant conflict is in inheritance. Under Hindu law, inheritance rules are based on coparcenary principles and the Hindu Succession Act, 1956. The Act grants daughters equal rights to inherit property but restricts their rights in certain ways. For instance, a daughter cannot inherit ancestral property if her father died before the Act came into force in 1956, a subject of controversy regarding gender equality.
In Prakash v Phulavati (2016), the Supreme Court of India ruled that daughters have equal rights to inherit ancestral property, regardless of when their father died. The Court emphasized the need for laws to evolve with changing times and stated that gender discrimination has no place in modern society. This decision was seen as a step towards gender equality and a departure from traditional Hindu law principles.
Another area of conflict is marriage and divorce. Under Hindu law, marriage is considered a sacrament, and divorce is permitted only under specific conditions, such as cruelty or adultery. The UCC seeks to create uniform laws treating all citizens equally, regardless of religion, which some argue could undermine traditional Hindu practices and lead to cultural homogenization.
Conflict with Muslim Law
The UCC is particularly contentious when it comes to conflicts with Muslim personal law. The UCC aims to replace various personal laws with a common set of laws for all citizens, irrespective of religion. However, many Muslims in India view the UCC as a threat to their religious freedom and cultural identity.
One main area of conflict is family law. Under Muslim personal law, marriage, divorce, and inheritance are governed by Sharia law, based on Islamic principles. The UCC seeks to replace these religious-based laws with a common civil code for all citizens.
A particularly contentious issue is the practice of Triple Talaq, which allows a Muslim husband to divorce his wife by simply saying “Talaq” three times. Although banned by the Indian government through the Muslim Women (Protection of Rights on Marriage) Act, 2019, some Muslims argue this infringes on their religious freedom.
Another conflict is polygamy. Under Muslim personal law, Muslim men are allowed up to four wives, while the UCC seeks to prohibit polygamy. Some Muslims argue that polygamy is permitted by their religious beliefs, and any attempt to ban it would violate their religious freedom.
In the Shah Bano case, the Supreme Court of India ruled that Muslim women are entitled to maintenance after divorce under the Indian Criminal Procedure Code, rather than under Muslim personal law. This ruling led to widespread protests from Muslim organizations, arguing it violated their religious freedom. The Indian government eventually passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, overturning the Supreme Court’s ruling and restoring the application of Muslim personal law in divorce matters.
In the Danial Latifi case, the Supreme Court held that the provision of maintenance under Section 125 of the Criminal Procedure Code applied to Muslim women, even if divorced under Muslim personal law. This judgment also met with protests from Muslim organizations.
In conclusion,
the UCC remains a contentious issue in India, with ongoing debates about whether it represents reform or uniformity. While the UCC could potentially address gender discrimination, promote cultural unity, and ensure justice and fairness in civil matters, critics argue it could lead to the loss of minority identity and cultural diversity. The UCC should be viewed as a tool for reform rather than uniformity. Personal laws have been reformed in the past, and the UCC could ensure equal rights under the law for all citizens, regardless of religion or gender.
FAQ
What is the Uniform Civil Code (UCC)?
The Uniform Civil Code is a proposal to replace the personal laws of different religions with a common set of laws that would apply to all citizens of India, irrespective of their religion, in matters such as marriage, divorce, inheritance, adoption, and maintenance.
Why was the UCC proposed?
The UCC was proposed to promote national integration, ensure equality before the law, eliminate discrimination, and provide uniformity in the application of laws across different religious communities.
What does Article 44 of the Indian Constitution state?
Article 44 of the Indian Constitution, part of the Directive Principles of State Policy, states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Is the UCC legally enforceable?
No, Article 44 is part of the Directive Principles of State Policy, which are non-enforceable guidelines for the government to follow in policymaking. They do not have the force of law.
Why has the UCC not been implemented yet?
The UCC has not been implemented due to various challenges, including the diversity of beliefs, customs, and practices among different religious groups in India. There is also significant opposition from some communities who view the UCC as an infringement on their religious freedom and cultural identity.
What are some arguments in favor of the UCC?
Proponents argue that the UCC is necessary for ensuring gender equality, social justice, and national integration. They highlight the discriminatory practices in existing personal laws, particularly against women, and believe a UCC would promote individual rights and gender justice
