Uniform Civil Code in India – A Bag of Mixed Aspirations

The Article 44 in Part IV of our Constitution containing the Directive Principles of State Policy provides for a Uniform Civil Code (UCC) in the country which states, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.” A Uniform Civil Code basically refers to a universal set of rules applicable to all the citizens, replacing personal laws which are based on the beliefs and customs of different religious communities. These personal laws mostly cater to issues of inheritance, marriage, divorce, adoption, custody and so on. However, a Uniform Civil Code in the country is yet to become a reality.

The background

The debate regarding UCC has been going on in political circles in India for more than a century. It was debated in the Constituent Assembly of India on December 23, 1948 where it was opposed mostly by many members who wanted personal laws to be separated from the universal civil code and make the UCC operational only with the community’s prior assent. They feared the UCC would lead to chaos within their religious community and considered it a violation of the fundamental freedom of religion which everyone was entitled to. On the other hand, members in support of UCC opined that it was necessary keeping in mind the secular spirit of the constitution and would help in unifying the country. There was a lot of uncertainty regarding the UCC and eventually it was included under the Directive Principles of State Policy instead of being declared a fundamental right.

Need for Uniform Civil Code

India is a diverse country with people belonging to a vast number of religious and ethnic groups. The constitution of India allows for a secular and democratic nation where everyone is treated equally before the law. Establishing a Uniform Civil Code would be a positive step towards strengthening the secular fabric of the country and helping unify the various segments of the population. The existence of different personal laws provides room for discrimination against women and other vulnerable groups on the basis of religion which has no place in a secular democracy like India. Our society is infringed with unequal and discriminatory practices like these which need to be done away with by introducing a UCC. Just like there is a Uniform Criminal Code which applies to everyone in the country without any distinction on the basis of religion, caste, colour or sex, there needs to be a Uniform Civil Code to unify the other personal laws.

Contradictory Provisions in the Constitution

While the Constitution under Article 44 provides for the establishment of a Uniform Civil Code, it is seen to be in conflict with Article 25 of the Constitution which states that “all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health.” People opposing the UCC point to this inconsistency and deem it an encroachment on their fundamental right to religious freedom. They believe such a homogenous law would threaten religious plurality in a multi-cultural space like India and it goes against the nature of a secular democracy which should protect the religious rights of its people. It is also considered as undue interference by the state in personal matters of the citizens.

The Role of Supreme Court

In 1985, Shah Bano moved the Supreme Court in order to seek maintenance when her husband divorced her by giving triple talaq, denying her access to regular maintenance. Under Section 125 of the Indian Penal Code which is applicable to all citizens irrespective of their religion, the Supreme Court gave its verdict in favour of Shah Bano. It was then that the Court advised the Parliament to formulate a Uniform Civil Code. The Supreme Court directed the formulation of UCC in subsequent cases as well, such as the Sarla Mudgal Case and the John Vallamattom v. Union of India Case.

Despite several appeals from the court, the centre has failed to implement a nation-wide UCC. Goa is the only state in India which has successfully implemented the UCC till date. In Goa, the unified Portuguese Civil Code of 1867 is still operational today, with some modifications. Under this law, muslims do no possess the right to verbally divorce their wives and are not allowed to practice polygamy. In cases of divorce, it allows for all property to be divided between the spouses. Home to a diverse religious population, Goa is a classic example of maintaining harmony through a unified civil code.

Possible solutions

According to the Law Commission, instead of a Uniform Civil Code, the state should focus on codification of personal laws. By codifying the diverse rituals and practices of different religions, they would become ‘law’. This would require them to be consistent with the fundamental rights without any discrimination and would protect religious pluraity in India. It pointed out the flaws in a Uniform Civil Code and said that in order to be unified, India need not necessarily have uniform laws.

The Bharatiya Janata Party (BJP) has for long supported a Uniform Civil Code and had also included it in its election manifesto of 2019. Now that it is in power, we can expect the government to come up with a law regarding the UCC soon. Considering the heterogeneous social makeup of India, coming up with a Uniform Civil Code acceptable to all sections of the society would be a challenge indeed. Voices of all the sections need to be taken into account while framing such a law to ensure it is fair. However, the need to bring about reforms in the existing laws cannot be ignored in the face of the technical difficulties of arriving at a unified civil law. As a starting step, amendments can be brought about in all the religious personal laws, ensuring there is no discrimination meted out to any section of the society. The society needs to be given time and the necessary framework to adjust and reach a consensus to implement a Uniform Civil Code.

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