The Uniform Civil Code

The Delhi High Court has recently stressed upon the need for the implementation of the

Uniform Civil Code in Bharata. This is not the first time that the judiciary has stressed on the

need for a Uniform Civil Code in Bharata. Article 44 of our constitution casts an obligation

on the State to strive for the implementation of a Uniform Civil Code so as to fulfil the

constitutional directive of achieving socio-political uniformity, equality and modernity in

Bharata. Bharata has separate personal laws for different religions that govern issues related

to marriage, divorce and inheritance among others as per the customs and traditions of that

particular religion. This lack of uniformity effects the extent to which the basic socio￾economic rights are provided to the individuals of that community as these basic rights

become subservient to the local traditions and customs of that religion.

The idea of a Uniform civil code was discussed in the Constitution Assembly debates as a

draft Article 35 on 23rd of November 1948. There were conflicting views with respect to the

implementation of the Uniform Civil Code in India.

Members of the Constituent assembly such as Mohammad Ismail Khan and Naziruddin

Ahmed primarily spoke against the need for a Uniform Civil Code. They found the idea of

interference with the personal laws of a particular religion without the approval of that

religion to be prima facie wrong. Any change with respect to the personal laws of a particular

religion should be taken only after consulting the representatives of that religious community.

They believed that such laws would violate freedom of religion thereby resulting in

disharmony within the Muslim community. Their viewpoints were countered however by

other members of the constituent assembly.

For instance, Mr. K.M. Munshi argued that the Uniform Civil Code was an important step

towards the consolidation of national unity and removal of isolationist tendencies within

Bharata. The Constitution by way of fundamental rights had already provided for the

elimination of all kinds of discrimination from the society. Subsequently if there would be

any personal law perpetuating any sort of discrimination on the vulnerable communities of

that religion, let us say the women, then such a discriminatory practise could never be

addressed by the law in the absence of a Uniform Civil Code. Consequently continuation of

such discriminatory practices would subsequently be violative of the fundamental rights of

the Individuals of the society.

At the end of the debate, Mr B.R. Ambedkar clarified that there was nothing new about the

Uniform civil Code: there was already a common civil code in India. For instance the Indian

Penal Code covered the realm of Crime and punishment in the society without explicitly

discriminating between individuals on the basis of religion. The only things left to be covered

were the areas of marriage, divorce and inheritance which were not under the scope of any

existing code and hence would be covered under the uniform civil code. The decision with

respect to the time as well as the manner of implementation was left to the future

governments of Bharata as a result of which the uniform civil code was included in the

Constitution as a directive principle of the state policy.

Within four years of the enactment of our constitution, the first attempt at codification of

rules was made by the introduction of the Hindu Code Bill. The Hindu Code bill unified

different laws of the traditional Hindus, Buddhists, Sikhs and Jains. Pt. Jawaharlal Nehru,

while defending the introduction of Hindu Code Bill, instead of a Uniform Civil Code, in

Parliament in 1954, stated: "I do not think that at the present the time is ripe for me to try to

push it (UCC) through”. Interestingly enough the “right time” for the implementation of

UCC never arrived even though more than sixty years have passed and we have now entered into an era of globalization where universal human rights have been internationally

recognized under various conventions.

Before we move on to make a case for the implementation of the Uniform Civil Code, we

need to first of all look at the possible reasons as to why the government and even certain

sections of the society are apprehensive about the implementation of the Uniform Civil code.

The main reason is the lack of clarity with respect to what a uniform civil code would look

like. The subject areas that the uniform Civil Code should cover are a matter of constant

debate; for instance the regulation of polygamy and bigamy. There are also serious concerns

that any attempt to remove all the personal laws in order to bring all religions on a “equal”

footing would be violative of fundamental right to the freedom of religion guaranteed under

Article 25 of the Indian Constitution. This lack of clarity gives further credence to rumours,

fear and misinformation about the implementation of Uniform Civil Code. For instance the

minority communities often fear that majoritarian cultures and their way of living would be

imposed under the garb of the uniform civil code.

There are serious challenges with respect to implementation keeping in mind the distinct

cultures of the tribes that are present throughout India. Article 29 and 30 provides for the protection of such religious and cultural minorities having a distinct ‘culture’, ‘language’ and

‘script’ which might even be at odds with the universal ideas about marriage, divorce and

succession. Furthermore Bharata has had an unfortunate history of heavy politicisation of

religious issues. Keeping in mind the great importance of religion in the lives of the citizens

of our country, any attempt at reforms over the personal laws can seriously threaten the vote

bank of the political parties that are heavily divided along the lines of religion.

Given the constitutional and the socio-political challenges that lie with respect to the

implementation of the uniform Civil Code, the critics of the Uniform Civil Code propose

another alternative that they believe addresses the problem more adequately; codification of

personal laws. An argument could be made that all the discriminatory practices creating

inequality within communities can be removed by codifying the personal laws just like the

Hindu Code Bill. Once the personal laws are codified, they are subject to the constitutional

directives that will prevent any discriminatory practice or provision from being recognized or

practiced. In fact the Law commission of India in 2018 rejected the need for a Uniform Civil

Code and endorsed the idea of codification of Personal Laws.

If there are so many problems with respect to implementation of the Uniform Civil Code,

then why endorse it? One may have to refer to certain excerpts of the speech given by K.M

Munshi in the constituent assembly where he stated-

“This attitude of mind perpetuated under the British rule, that personal law is part of

religion, has been fostered by the British and by British courts. We must, therefore, outgrow

it. If I may just remind the honorable Member who spoke last of a particular incident from

Fereshta which comes to my mind, Allauddin Khilji made several changes which offended

against the Shariat, though he was the first ruler to establish Muslim Sultanate here. The

Kazi of Delhi objected to some of his reforms, and his reply was--"I am an ignorant man and

I am ruling this country in its best interests. I am sure, looking at my ignorance and my good

intentions, the Almighty will forgive me, when he finds that I have not acted according to the

Shariat." If Allauddin could not, much less can a modern government accept the proposition

that religious rights cover personal law or several other matters which we have been

unfortunately trained to consider as part of our religion. That is my submission.”

For instance up until 1935 the North-West Frontier Province was not subject to the Shariat

Laws but Hindu Laws in matters like that of succession. It was only in 1939 that the Central

Legislature abrogated the application of the Hindu Law to the Muslims of the North-West Frontier Province and applied the Shariat Law to them. Such incidence is not just limited to

the North Western Frontier Provinces; in fact up until 1937 various parts of India, such as the

United Provinces, the Central Provinces and Bombay were to a large extent governed by the

Hindu Laws in the matters of succession. The Legislature intervened into this matter as late

as in 1937, passing an enactment applying the Shariat Law to the rest of India. In North

Malabar the Marumakkathayam Law was applicable to all; not only to Hindus but also to

Muslims. Marumakkathayam Law was a Matriarchal form of law and not a Patriarchal form

of law.

It is therefore wrong to make the assertion that personal laws are immutable and have been

followed from the ancient times. If a single civil code applicable to all citizens irrespective of

their religion is brought about, it would be to ensure that all the communities within as well

as between themselves do not encroach upon basic human rights guaranteed to all the

individuals of our country. The problem with respect to the codification is that mere

codification of religious customs does not in itself guarantee equality and human rights to the

communities being discriminated. We have many codified laws in place such as the Special

Remarriage act or the Hindu Remarriage act; they however have largely been ineffective in

addressing the issues with relation to discrimination and gender inequality.

Furthermore, the Uniform Civil Code is already present in certain parts of the country such as Goa where a common civil code called Portuguese civil code 1867 allows a married couple to share property equally, pre-nuptial agreements are the order of the day and assets are divided equally between the man and woman on divorce. The efficiency of the uniform Civil Code in Goa has also been recognized by the judiciary that has suggested for a uniform civil code to be brought about on similar lines.

In a country that has been divided from time immemorial on the basis of their caste and

religion, a uniform civil code will bring every Bhartiya, despite his caste, religion or tribe,

under one national civil code of conduct. This will also help in reducing vote bank politics

that most political parties indulge in during every election. One may refer to the case of Shah

Bano Begum where basic human rights to a Women were denied due the vote Bank Politics

played by Mr. Rajeev Gandhi in a bid to retain his power in the centre.

By allowing personal laws we have constituted alternate judicial systems that operate

differently on different set of people. The codification and unification of the variegated

personal laws will produce a more coherent legal system. This will reduce the existing confusion and enable easier and more efficient administration of laws by the judiciary. The

Uniform Civil Code clearly identifies the problem of ‘discrimination’ prevalent in the society

within “Rampant inequality” rather than the “diversity” of the religions themselves.

The constitutional makers had promised a social, political and an economic revolution at the

time of the framing of our constitution. While our economic growth has been significant, our

social growth has lagged behind to a large extent. A UCC will help a society move forward

and take Bharata towards its goal of becoming a truly developed nation.

Various Religious personal laws are misogynistic in nature and by allowing such religious

rules to continue to govern the family life we are condemning all the vulnerable communities

to subjugation and mistreatment. A uniform civil code will not only help in improving the

condition of vulnerable women but also identifying the rights of intersex and gender non￾conforming individuals in the society that have often been subjugated to much discrimination such as homophobia.

All the laws related to marriage, inheritance, family, land etc. should be equal for every

members of the Indic community. This is not to say that the uniform civil code will limit the

freedom of people to follow their religion, it just means that every person will be treated the

same and all citizens of India have to follow the same laws regardless of any religion.

Freedom of religion is not absolute in nature. Article 25 and Article 26 guarantee the freedom

of religion and UCC rather promotes the idea of secularism. In fact reasonable restrictions are allowed on the freedom of religion subject to ‘Public order’, ‘morality’ and ‘health’.

A minority of people should not be allowed to pick and choose the laws they want to be

administered under. These personal laws were formulated in a specific spatiotemporal context and should not stand still in a changed time and context. Therefore the current administration should take relevant steps to fast track the process implementation of the Uniform Civil Code without repeating the mistakes made by the previous governments of succumbing to the pressures of the local politically dominant groups.