Uniform Civil Code

What is Uniform 'Civil Code'

A Uniform Civil Code (UCC) refers to a formulation of single set of laws for all citizens governing personal matters such as divorce. marriage, inheritance, adoption and succession regardless of their religion. It aims to create a unified and equal legal framework for all citizens. Currently personal matters are regulated by religious based laws. It is part of the Directive Principles of state policy of the Indian Constitution which means it is not legally enforceable but serves as a guiding principle for the government.

The subject matters of uniform civil code include Marriage, Divorce, Succession, Guardianship, Maintenance, Adoption, Partition, Gifts and Wills, Religious institutions, Joint Family System and matters of Charitable trust, among others.

The Dilemma of uniformity in personal laws

The popularly cited objective behind the Article is to promote the integration of India by bringing all communities onto a common platform in matters currently governed by diverse personal laws, which do not form the essence of any religion. e.g., divorce; maintenance for divorced wife. But critics say it's like forcing square pegs into round holes, ignoring India's vast diversity. They also argue that the implementation of Uniform Civil Code (UCC) may infringe upon the religious freedom protected under Article 25 of the Indian Constitution, especially among the minority communities. Because for many communities the laws that deal with divorce. marriage, inheritance and adoption are seen not merely as legal rules but as religious obligations which has been derived from sacred texts of those religions.

History and Origin

The idea of Uniform Civil Code (UCC) dates back to British rule when a report in 1835 emphasized the need for uniform codification of Indian Laws relating to crimes, evidence and contracts while excluding the personal laws of Muslim and Hindus from this codification. Towards the end of British rule, increasing legislation on personal matters led to the creation of B.N Rau committee to examine the need for Hindu personal laws. The committee recommended codifying Hindu laws, including equal rights for women in marriage and succession. The recommendations led to the formation of key legislations such as the Hindu Marriage Act (1955), Hindu Succession Act (1956) and others. Post independence, the constitution adopted Article 44 under Directive Principles of State Policy. It was meant to promote unity and equality but was not enforceable by courts. It meant to guide the state in policymaking. However, it was not implemented because of the strong opposition from minorities. During the Constituent Assembly several Muslim members objected to the UCC fearing that it would infringe upon their religious freedom and lead to the abrogation of Sharia based personal laws. In response to this Dr BR Ambedkar and K.M. Munshi clarified that the UCC would apply only to secular aspects of personal laws and not to religious rituals or beliefs.

Munshi's Advocacy and Key Objections to the Uniform Civil Code

In the Constituent Assembly two objections were raised against creating a Uniform Civil Code for all of India. Firstly, it would infringe the freedom of religion guaranteed by Article 25 and secondly, it would be a tyranny to the minority communities.

Several Muslim members of the Constituent assembly also objected to Article 44 fearing that it might lead to the abrogation of their personal laws. This objection was addressed by pointing out,

1. that India had already achieved a uniformity of law over a vast area.
2. that though there was diversity in personal laws, there was nothing sacrosanct about them.
3. the secular activities, such as, inheritance, covered by personal laws should be separated from religion.
4. that a uniform law applicable to all would promote national unity and
5. that no legislature would forcibly amend any personal law in future if people were opposed to it.

The first objection is misconceived. Article 44 does not violate the freedom of religion guaranteed by Article 25 of the Indian Constitution. In fact, clause(2) of Article 25 clearly states that secular activities related to religious practices are not protected under the clause(1) of Article 25.

For the second objection, Sri K.M. Munshi, a Member of the Drafting Committee in the Constituent Assembly put forward the following arguments,

1. The argument that the enactment of a civil code would be tyrannical to minorities. But nowhere in advanced Muslim countries the personal law of each minority has been recognized as so sacrosanct as to prevent the enactment of a civil code. In support he gave the examples of Turkey and Egypt which have made uniform civil law without any regard to minorities. He also gave the example of the Shariat Act of 1937 enacted by the Central Legislature in the British regime by which the Khojas and Cutchi Memons who followed many customs of Hindus had to give up their dissatisfaction with the act.
2. "When you want to consolidate a community", he added, "you have to take into consideration the benefit which may accrue to the whole community and not to the customs of a part of it." He also supported his argument with the example of European countries whose civil codes applied to everyone who came to stay there. "It is not therefore correct to say that such an act is tyranny of the majority."
3. Then he enumerated the disadvantages that we will have in the absence of a uniform civil code in the application of the existing laws even to the majority who are not governed by one uniform law, but by a multiplicity of laws regional and otherwise. "It is therefore not merely a question for minorities but it also affects the majority" because of which even majorities also oppose uniform civil code.

Official definition of 'Uniform Civil Code'

Article 44 of the Indian Constitution

Article 44 falls under Part IV of the Indian Constitution which deals with Directive Principles of State Policy (DPSP). It states, "The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India."

Article 44 was numbered as draft Article 35 in the Draft Constitution and was discussed in the Constituent Assembly on 23 November 1948.

Uniform Civil Code as defined in Government reports

The Law Commission of India in it's 185th report, "Review of the Indian Evidence Act, 1872" focuses on evaluating and recommending amendments to the Indian Evidence Act to align it with contemporary legal needs and societal needs. However, it does not directly address the Uniform Civil Code (UCC) but the 21st Law Commission's 2018 consultation paper on "Reform of Family Law" concluded that implementing Uniform Civil Code is "neither necessary nor desirable".

The Hindu Code Bills 1955-56

To attain uniformity in Independent India, Dr. B.R. Ambedkar proposed several amendments to Hindu personal laws known as “Hindu Code Bills”. The proposed amendments were intended to provide legal uniformity to all religions other than Muslim, Parsi, Jews, and Christians. The Hindu Code Bills legislations, which tend to provide Uniform Civil Code includes:

• Hindu Marriage Act, 1955
• Hindu Succession Act, 1956
• Hindu Minority and Guardianship Act, 1956
• Hindu Adoption and Maintenance Act, 1956

Although introduced in parliament, The Hindu Code Bill 1955 was not passed due to divergent views among the parliament members. Uniform Civil Code (UCC) since then remained a politically sensitive issue and an instrument for political parties for electoral purposes. Both parties supporting and opposing it tried to leverage the bill for political gains. While the Congress highlighted it as a symbol of secularism and minority reassurance, the BJP emphasized its importance for national integration and gender justice from a majoritarian perspective.

Law Commission of India, Consultation Paper on Reform of Family Law (2018)

The Law Commission of India in its 21st Law commission report (2018) stated that the UCC is neither necessary nor desirable at this stage instead it advocated for reforming existing personal laws to promote fairness and gender-based discrimination. The commission emphasized that rather than imposing Uniform Civil Code (UCC) the government should focus on fostering equality within communities through legal reforms.

This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage.

The Uniform Civil Code Bill, 2019

The bill emphasized that it would serve as a foundation of secularism, promote gender equality, and strengthen national integration by eliminating disparities arising from religion-based personal laws.

Under the Uniform Civil Code a collection of laws will be prepared which will protect the personal rights of all citizens without considering the religion, which seems to be the need of the hour. In reality this is the foundation stone of the secularism. Such progressive reforms will not only help to end discrimination against women but also help in strengthening the secular structure and encourage integrity. In fact our social system is replete with injustice, discrimination and corruption and are in conflict with our fundamental rights, hence it needs to be reformed.

Legal provision(s) relating to 'Uniform Civil Code'

Directive Principles of State Policy (DPSP) under Part IV of the Indian constitution includes Article 44 which deals with Uniform Civil Code (UCC). It is non- enforceable under court of law but acts as a guiding principle for governance.

Goa follows a Uniform Civil Code called "Goa Civil Code" based on the "Portuguese Civil Code, 1867" applicable to all its citizens. While Uttarakhand became the first Indian state to pass a Uniform Civil Code Act, Goa remains the only state with a fully functional and operational Uniform Civil Code.

Case laws relating to Uniform Civil Code

Mohd. Ahmad Khan v. Shah Bano Begum (1985)

In this case the question was pertaining to whether a Muslim man must pay maintenance to his divorced wife after the iddat period. Shah Bano Begum a 62-year-old women had been divorced and left without means to support herself. The supreme court in this case held that Section 125, Criminal Procedure Code,1973(CrPC) which imposes such obligations on all the husbands, is applicable to all citizens irrespective of their religions. It applies to all Indians regardless of religions and overrides the personal law if there is a conflict between the personal law and maintenance law. The court held that it is also a matter of regret that Article 44 of our constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take initiative in reforming and unifying personal laws by removing disparate loyalties to laws which have conflicting concessions on such matters. It is the state that has both the duty and power to make such law .

Sarla Mudgal v. Union of India (1995)

The Supreme Court in this famous case gave direction to secure a uniform civil code under Article 44 which enjoins state to protect and promote unity and integrity of the country. In this instant case, a Hindu husband married under a Hindu Law converted to Islam. He solemnized the second marriage without dissolving his first marriage under the provisions of the Hindu Marriage Act,1955 and, therefore, was liable to be prosecuted for bigamy under Section 494, Penal Code, 1860 (IPC).

John Vallamattom v. Union of India (2003)

In this case the constitutionality of Section 118, Succession Act, 1925 was challenged on the ground that it violated Articles 14,25 and 26 of the constitution as it imposed restrictions on a Christian having a nephew or niece or any other relative with reference to his power to bequeath his property for religious and charitable purposes. The Supreme Court in the instant case held Section 118, Succession Act, 1925 to be ultra vires as being violative of Article 14 of the constitution. However, Article 25 and 26 have no application as they only protect rituals and ceremonies that are an integral part of the religion.

Challenges in Implementation

The implementation of Uniform Civil Code (UCC) faces several challenges. Deep rooted religious sentiments and apprehensions regarding state's intrusion into personal religious laws have led to strong resistance, particularly from minority communities. India's vast cultural and regional diversity makes it difficult to frame a single civil code that suits all communities. There is a prevailing fear that the UCC may reflect the views of the majority and overlook the rights of minorities. There are also legal and administrative challenges along with the political hesitation.