While the whole of Bharat is contemplating whether the implementation of a Uniform Civil Code is feasible or not or whether the draft coming up would be able to accommodate the whole of diversified cultures and practices, it becomes important to dig back into the nitty-gritty of the concept and take a look at its necessity in the contemporary times.
A system of rules that regulate personal concerns for all individuals, regardless of religion, such as marriage, divorce, adoption, inheritance, and succession, is known as a uniform civil code. The UCC seeks to supersede the various personal laws already in force, which differ according to religious affiliations. It is very well enshrined under Article 44[1] of the Indian Constitution under the Directive Principles of State Policy. Actually, the 1954 Special Marriage Act[2] permits any citizen to get married without the purview of any unique religious personal law, making Goa the sole state with a common family law. Recently, Uttarakhand has also become the first state to present a draft of UCC and the process for the same is being followed so as to validate its implication. When the question of its need arises, it becomes necessary to outline the significance of the said code because a secular democratic nation like India has to create universal civil and personal laws for all of its citizens in the current period since different laws should not apply to different classes, castes, genders, racial groups, and religions but a holistic uniform law is necessary as to erode the archaic practices against women and sometimes men in different cultures and religions which harm the basic dignity and rights of the individuals. It is a well-known fact that practically all faiths have personal regulations that are skewed towards men. Usually, discrimination against women occurs during inheritance or succession planning. There is a chance that UCC will achieve gender parity. The favouritism of various faiths’ personal rules towards the patriarchal notion of society causes some very grave issues. Common law implementation can close these gaps and remove prejudices among Indian residents. Equal treatment for all Indians is required, and a Uniform Civil Code makes this possible. The personal laws of the religious communities are not equal in the current situation. For example, Muslims in India are permitted to marry more than once.
However, if a Hindu or Christian did the same, they might get into trouble with the law. Such disparities go counter to the notion of equality in our nation. Therefore, UCC may guarantee that every Indian is treated fairly by establishing uniform laws pertaining to marriage, inheritance, family problems, and property ownership. Article 44[3] says, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” but the scope and its implication in the present day Bharat has to be analysed. India features a distinctive fusion of the codified personal laws of Christians, Muslims, Hindus, and Parsis. All Indians do not live under a single statute book that has all of the family-related laws that are acceptable to the several coexisting religious communities in India. But the bulk of them think that UCC is unquestionably desirable and would significantly contribute to the fortification and consolidation of Indian nationalism but the basic structure of the constitution that was enshrined under the Keshvananda Bharti Vs. The State of Kerala[4] such as the sensitive articles of 25[5] and 26[6] of the Indian Constitution. There are disagreements over when and how it should be accomplished. It is the responsibility of political and intellectual leaders to work towards a consensus rather than utilising it as a wedge issue to further their political agendas. Therefore, it becomes important to trace the historical background and dig into the whole debate of as to the necessity of UCC.
The British Government created uniform rules for crimes, evidence, and contracts in 1840 based on the Lex Loci report; nevertheless, they purposefully left some personal laws belonging to Muslims and Hindus in place. However, the judiciary of British India allowed British judges to use English, Muslim, and Hindu law. Reformers were also vocal in those days, advocating for laws that would protect women from discrimination on the basis of religious practices such as Sati, etc. The members of the Constituent Assembly, which was established in 1946 in Independent India, were divided into two groups: those who, like Dr. B. R. Ambedkar, wished to reform society by implementing a Uniform Civil Code, and others who were essentially Muslim delegates who upheld personal laws. Additionally, minority communities in the Constituent Assembly criticised the supporters of the Uniform Civil Code. Because of this, Article 44 of the DPSP (Directive Principles of State Policy) adds just one sentence to the Constitution. Since it is a part of the DPSP, minorities, particularly Muslims, feel that it violates or annuls their own laws, therefore neither political disagreement nor enforcement in court is possible. Then, a number of bills known as the Hindu Code Bill were passed to codify Hindu laws. These bills included the Hindu Marriage Act of 1955[7], the Hindu Succession Act of 1956[8], the Hindu Minority and Guardianship Act of 1956[9], and the Hindu Adoption and Maintenance Act of 1956[10]. These bills covered Buddhists, Sikhs, Jains, and various Hindu religious denominations. They also eliminated bigamy and polygamy and gave women the right to divorce and inheritance.
There has been a lot of judicial discussion on the legality and the jurisprudence behind the concept of the Uniform Civil Code and therefore understanding the judicial as well as the government’s side of the case. Firstly, the Shah Bano Case is mostly known as Muhammad Ahmed Khan v. Shah Bano Begum[11]. Shah Bano filed for maintenance under section 125[12] of the Code of Criminal Procedure in this Supreme Court case in 1985 after her husband gave her a triple talaq divorce after 40 years of marriage and refused to give her regular maintenance. Shah Bano was granted a favourable ruling by the Supreme Court through the use of section 125 of the Indian Criminal Code, which is applicable to all people regardless of their faith. Chief Justice Y.V. Chandrachud then noted that by eliminating differing allegiances to the law, a Common Civil Code would further the cause of national integration. Thus, the court gave Parliament the order to draft a UCC. However, the Rajiv Gandhi government was not happy with the court’s ruling and, rather than backing it, passed the Muslim Women (Protection of Rights on Divorce) Act, 1986[13], which overturned the Shah Bano case’s Supreme Court ruling and allowed Muslim Personal Law to take precedence in divorce cases. According to this act, a Muslim woman’s claim to maintenance is limited to three months following her divorce, or iddat, after which it is transferred to her family or the Wakf Board. In the Sarla Mudgal v. Union of India[14] case, the Supreme Court again instructed the government to follow Article 44. The issue concerned whether a Hindu spouse who was married under Hindu law could legally enter into a second marriage by converting to Islam. The Supreme Court ruled that it is a misuse of personal laws to convert to Islam in order to get married again. The Hindu Marriage Act, 1955[15] stipulates that a Hindu marriage can be dissolved. This means that merely changing to Islam and being married again does not nullify the Hindu marriage law and will be punishable under Section 494(5) of the Indian Penal Code.[16]
In 1997, John Vallamatton, a priest from Kerala, filed a writ suit, claiming that Section 118 of the Indian Succession Act discriminated against Christians by placing unjustifiable limitations on their ability to donate property by will for religious or charitable purposes. The section was declared illegal by the bench, which included Chief Justice of India V.V. Khare, Justice S.B. Sinha, and Justice A.R. Lakshamanan. The Juvenile Justice (Care and Protection of Children) Act[17] appears to be an attempt to move towards UCC after its ruling. Additionally, it made it possible for members of the Muslim community to adopt children even though it was against their own personal laws.
The Union Government was once more requested by the Supreme Court of India to establish a UCC in order to eliminate gender inequity and the antiquated customs that were adhered to within the confines of personal laws. Perhaps the most important law of the day is the Common Civil Code, which would establish a set of rules to regulate everyone’s personal affairs regardless of their religious beliefs. It is, in actuality, the basis of authentic secularism. Not only would a progressive change like this help put an end to discrimination against women based on their religion, but it would also fortify the nation’s secular fabric and foster togetherness. Our societal structure needs to be changed because it is full of injustices, discrimination, and other issues that go against our fundamental rights. As far as we are aware, the Criminal Code is applicable to everyone in the nation, regardless of their religion, caste, tribe, or place of residence; however, there is no comparable code for divorce and succession, which are handled by personal laws. Tax law contradictions are the reason for the necessity of UCC. It also addresses the issue of honour killings by extra constitutional entities like Khap Panchayats. For example, Muslims are exempt from paying stamp duty on gift deeds, whereas Hindu Undivided Families are not subject to taxes.
In India, the UCC has been a divisive topic with a range of sociopolitical ramifications. Advocates contend that the UCC would advance national integration, secularism, and gender justice. Equal rights for women and minorities would be guaranteed, and the discriminatory sections of personal laws would be removed. It would also eliminate religious differences in civil cases, strengthening the secular foundation of the country. Additionally, it would streamline the legal system and make doing business easier by giving all citizens a common foundation. Opponents contend, however, that the UCC would infringe upon the rights to cultural diversity and freedom of religion. They contend that since individual laws are derived from the religious convictions and customs of various communities, any attempt to impose a common code would jeopardise those groups’ sense of self and independence. Additionally, they worry that the UCC would be used to incite societal unrest by forcing the dominant Hindu culture on minority communities. Furthermore, they contend that since personal laws have already undergone a number of revisions, the UCC is not required and that any future changes should be achieved through discussion and consensus-building.
The 21st Law Commission of India was tasked in 2016 by the Ministry of Law and Justice to investigate issues pertaining to the Uniform Civil Code, following the BJP’s victory in the general election of 2014. Following extensive investigation and consultation with many parties, the Law Commission produced its report in 2018. According to the paper, “at this stage, a uniform civil code is neither necessary nor desirable.” In relation to the Uniform Civil Code, Ashwani Kumar Upadhyay v. Union of India[18] is the most recent case. In this instance, the Union Government requested that the Supreme Court reject each and every PIL that called for a uniform civil code. The administration contended that the legislature cannot be ordered by the courts to pass legislation. The sovereign authority to pass laws rests with Parliament. But the government also claims that it is a “affront to the nation’s unity” when different individuals obey various laws. It further states that the government would bring this issue to the 22nd Law Commission for consideration when the chairman and members are constituted. Recently, BJP MP Kirodi Lal Meena filed a private member’s bill in the Rajya Sabha to establish the Uniform Civil Code. There were 23 votes against the measure and 63 in favour of it. It aims to establish a “National Inspection and Investigation Committee” to oversee the creation and application of the Uniform Civil Code.
India is a large nation with a deep cultural history. In addition to the main faiths, each religion has its own denominations because of how culturally varied it is. They don’t appear alike because of how drastically different their practices and forms of devotion are. For example, consanguineous marriage is widespread among Dravidian Hindus in southern India, while it is not observed among hindus in northern India. As a result, creating a single civil law for a nation the size of India is difficult. In terms of a unified civil code, Ambedkar thought it was desirable, but first it should be optional. In actuality, Muslims were primarily subject to Hindu law regarding succession up until 1937, with the exception of the North-West Frontier Province and the United Provinces, both located in India. Despite being the leading proponent of a universal civil code, Nehru responded that Indian culture was not ready for one when asked why his administration had not implemented one. More than 75,000 persons participated in a poll that the Law Commission conducted in 2016. The people made recommendations about how the improvements ought to be carried out. This study supports the idea that people now want the laws that are in place to be changed. In this sense, the Law Commission’s recommendations are quite useful. According to the panel, the wisest course of action in the current situation is to protect the variety of personal laws while also making sure that they do not conflict with the fundamental rights protected by the constitution. Prior to anything else, the family-related personal laws need to be codified and any disparities need to be eliminated.
Without a doubt, everyone’s private religious liberties will be violated if a Uniform Civil Code is implemented. Freedom of conscience, as well as freedom to practise, preach, and spread religion, are guaranteed under Article 25[19]. The right of religious communities to practise their religion freely will be infringed by a uniform civil code. In a democratic nation, the majority opinion will usually win out, and if the majority’s viewpoint is supported by solid evidence, the public’s choice will also likely win out. There’s no shortage of data to support the non-applicability of a Uniform Civil Code. From violations of religious freedom to contraventions of Article 14[20], which stipulates that persons who are diverse or unequal should be treated differently—in this case, differently according to their various religious practices and traditions. Of course, this image is not complete. Public rights are violated when people are treated differently by different laws since the same incident may result in different or no penalty at all. Hindu law forbids polygamy, however Shariat law permits a man to have more than one wife. As a result, the same circumstance will have contradicting results. The Indian population may not be prepared for the code to be enacted, but it is nevertheless imperative that it be applied in this secular, civilised society where people should not identify with any one faith. Therefore, whether it’s a criminal, civil, or religious issue, every individual should be subject to the same laws in all circumstances.
CONCLUSION
Due to the complexity of the UCC, political, social, and legal aspects must all be carefully taken into account. It also presents threats to religious freedom and cultural variety, even while it has the ability to advance gender justice, secularism, and national cohesion. As a result, every effort to put the UCC into effect should involve close communication with all relevant parties, such as women’s organisations, religious institutions, and legal professionals. It should also be applied gradually, with suitable safeguards and allowances for transitional procedures. Rather than being viewed as a danger to the fundamental ideals of equality, freedom, and variety, the UCC should be viewed as a tool for strengthening them. The UCC would be the perfect means of defending citizens’ rights in a perfect state. The legislation will be progressive once it is adopted. The need for a Common Civil Code has emerged in response to the evolving needs of all citizens, regardless of faith, in order to safeguard their fundamental rights as guaranteed by the Constitution. By implementing UCC, Secularism and National Integrity can also be reinforced.
Our nation’s current future was intended by the writers of our constitution. Yes, they intended to implement the Uniform Civil Code at the moment of independence, but the tensions between the various communities at the time made it impractical. Even while things aren’t ideal right now, they are definitely better. All that remains is for our nation’s legislators to take the initiative. The outcry from the public should be dealt with later.
The author Anil Mehta, is an advocate and Special Cousel, ED. Former Senior Standing Counsel, UT Chandigarh; Managing Partner, Lex Solutions; Advocates, Solicitors & Consultants.
==========================================================
[1] India Const. art. 44.
[2] Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).
[3] Id at. 1.
[4] Keshvananda Bharti v. The State of Kerala, 1973 4 SCC 225.
[5] India Const. art. 25.
[6] India Const. art. 26.
[7] Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India).
[8] Hindu Succession Act, 1956, No. 30, Acts of Parliament, 1956 (India).
[9] Hindu Minority and Guardianship Act, 1956, No. 32, Acts of Parliament, 1956 (India).
[10] Hindu Adoption and Maintenance Act, 1956, No. 78, Acts of Parliament, 1956 (India).
[11] Muhammad Ahmed Khan v. Shah Bano Begum, 1985 (2) SCC 556.
[12] The Code of Criminal Procedure, 1973, § 125, No. 2, Acts of Parliament, 2973 (India).
[13] Muslim Women (Protection of Rights on Divorce) Act, 1986, No. 25, Acts of Parliament, 1986 (India).
[14] Sarla Mudgal v. Union of India case, AIR 1995 SC 1531.
[15] Id at. 7.
[16] The Indian Penal Code, 1860, § 494, cl. 5, No. 45, Acts of Parliament, 1860 (India).
[17] The Juvenile Justice (Care and Protection of children) Act, 2015, No. 2, Acts of Parliament, 2015 (India).
[18] Ashwani Kumar Upadhyay V Union of India ,2022 SCC OnLine SC 1594.
[19] India Const. art. 25.
[20] India Const. art. 14.
