UCC: A Constitutional mandate
The Uniform Civil Code (UCC) is a constitutional objective outlined in Article 44, the implementation of which has been long-delayed. Its primary purpose is to remedy the discrimination against women that exists within various personal laws.
The UCC proposes a common legal framework for marriage, divorce, inheritance, adoption, and succession, applicable to all citizens, irrespective of their religious affiliation. Consequently, while the principle of a UCC is constitutionally directed, its specific contents, form, and structure remain subjects of legitimate debate.
UCC promotes gender equality
A UCC is intended to ensure that all citizens, regardless of their gender, religion, or personal beliefs, are afforded equal rights in matters of marriage and family, including contemporary arrangements like live-in relationships. The objective is not to interfere with the private beliefs, faiths, or diverse religious practices of any community, but to harmonize the legal rights of citizens.
Uniformity in Indian Civil and Criminal Law
With the notable exception of personal laws, most civil and criminal statutes in India—such as the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act—apply uniformly to every citizen. In this respect, India has already achieved a significant degree of legal uniformity. Article 44 itself was a compromise within the Constituent Assembly, designed to reconcile divergent views on the matter.
During the British colonial period, India’s disparate religion-based criminal laws were gradually reformed, culminating in the enactment of foundational statutes like the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Indian Evidence Act. On the civil side, several laws with uniform applicability were also formulated, including the Registration Act, the Limitation Act, the Code of Civil Procedure, the Transfer of Property Act, and various social reform laws like the Dowry Prohibition Act and the Protection of Women from Domestic Violence Act.
However, a similar effort was not undertaken to codify and unify personal laws, except for those applicable to Hindus, Christians, and Parsis. Muslim personal law remained largely uncodified and permitted practices such as polygamy and forms of unilateral divorce, which have been criticized for creating inequalities in matters of marriage and property inheritance between men and women. It is noteworthy that several Muslim-majority countries, including Turkey and Egypt, have enacted a common civil code, and few nations treat personal laws as sacrosanct as is often the case in India.
The Long-Standing Demand for a UCC
The call for a UCC is not recent; it was first formally raised by the All-India Women’s Conference in 1937. The issue resurfaced during the Constituent Assembly debates concerning the Hindu Code Bill and has been a subject of judicial commentary on multiple occasions.
The Hindu Code Bill was an ambitious legislative proposal aimed at reforming and unifying family law for all communities not governed by Christian, Muslim, or Parsi law, representing an early step towards a UCC. Despite its progressive aims, the original Bill faced stiff opposition from conservative sections of the Hindu community, including the Hindu Mahasabha. This resulted in a diluted version enacted as four separate statutes. Over the decades, subsequent amendments and judicial interpretations have expanded the scope of these laws, largely realizing the original vision of a more gender-just code for Hindus. However, certain provisions, such as those related to ancestral property and the Hindu Undivided Family (HUF), remain areas of debate.
While Christians and Parsis have their own codified laws for marriage and divorce, Jewish personal law remains uncodified. Muslim personal law, in particular, has been frequently identified as lagging in terms of gender justice.
Judicial Support for a UCC
The Supreme Court of India, in several landmark judgments, has advocated for the implementation of a UCC. Notable cases include Mohd. Ahmed Khan v. Shah Bano Begum (1985), Jorden Diengdeh v. S.S. Chopra (1985), and Sarla Mudgal v. Union of India (1995).
More recently, the Supreme Court’s decision in Shayara Bano v. Union of India (2017), which outlawed the practice of unilateral triple talaq (talaq-e-biddat), was a significant step toward addressing discriminatory practices against women within Muslim personal law.
The Challenge of Drafting and Public Debate
A significant challenge in the current discourse is that the government has promoted the idea of a UCC without presenting a draft bill. This absence of a concrete proposal has led to speculation and apprehension, often shaped by vested interests and misinformation. The 21st Law Commission of India, while not producing a draft UCC, published a comprehensive Consultation Paper on Reform of Family Law, which offered practical suggestions for reforming family laws in a progressive manner.
To foster a productive national conversation, it is essential to prepare a draft UCC for public debate. This would shift the focus from abstract political rhetoric to a substantive discussion of its provisions. Currently, the political discourse surrounding the UCC often appears to be driven by communal considerations rather than its potential for social reform. Progressive voices must therefore emphasize the UCC’s tangible benefits, particularly in advancing gender equality, to counter its use as a tool for political polarization.
Potential Conflicts with Minority Rights
A UCC may potentially conflict with constitutional provisions designed to protect the rights and distinct identities of minority groups. These include Article 29(1) and Article 30(1) for religious and linguistic minorities, the special provisions for tribal areas under the 5th and 6th Schedules (Articles 244(1) and 244(2)), and the special status granted to Nagaland and Mizoram under Articles 371A and 371G. Reconciling a uniform code with these protections will require careful legal, political, and social negotiation.
Reforming Divorce Laws
Grounds and procedures for divorce vary significantly across personal laws, reflecting different cultural attitudes towards the dissolution of marriage. In Christian law, for instance, divorce historically carried a stigma, though judicial rulings have eased some of its former rigidity. The process under the Parsi Marriage and Divorce Act is often criticized as being cumbersome and protracted.
Furthermore, the grounds for divorce can be inequitable. Under Muslim law, while women have several grounds upon which they can seek divorce, men have historically been able to divorce without stating any reason. A progressive UCC would standardize the grounds and procedures for divorce, ensuring that all individuals, regardless of gender, have equal access to dissolution of marriage on fair and reasonable terms, while still allowing for necessary diversity.
A Gender-Neutral Framework
A progressive UCC should be a gender-neutral statute. It should entitle all children—whether biological, adopted, or born via surrogacy—to equal rights of inheritance. Adoption rights should be available to all individuals and couples, irrespective of their marital status or sexual orientation.
Existing personal laws often discriminate against women in their roles as daughters, wives, and widows. The concept of the Hindu Undivided Family (HUF), a legal entity for tax purposes comprising descendants of a common ancestor, has also been criticized as an anachronism that should be abolished in favour of a more equitable system.
The Special Marriage Act as a Precedent
The Special Marriage Act, 1954 (SMA) serves as a secular legislative framework for marriage, divorce, and succession, much like a UCC. It allows any two individuals to marry outside the confines of their personal laws without renouncing their religion. The Act does not require religious ceremonies and does not discriminate between men and women.
However, the SMA is not without its own anomalies. For instance, if two Hindus marry under the SMA, their succession is governed by the Hindu Succession Act. But if two Muslims marry under it, their succession is governed by the Indian Succession Act. Such inconsistencies would need to be rectified in a truly uniform code.
Conclusion
The ultimate goal should be a non-discriminatory legal code that prioritizes gender justice and equality, rather than a monolithic code that erases all cultural diversity. The absence of a unified law for family matters has contributed to a persistent divide among citizens along religious lines, particularly in India’s polarized political climate.
No modern, secular state can allow religious doctrine to supersede the law of the land. A thoughtfully drafted UCC can accommodate diverse cultural practices within a broad, unified legal framework. If properly formulated and implemented, the UCC has the potential to make gender equality a reality for all Indian citizens, which is its fundamental purpose.
Further reading
- Law Commission of India: Consultation Paper on Reform of Family Law, 2018
- The Constitution of India
- Ahmed Khan v Shah Bano Begum [AIR 1985 SC 945]
- Jordan Diengdeh v S.S. Chopra [ AIR 1985 SC 935]
- Sarla Mudgal v Union of India [ AIR 1995 SC 1531]
- Shayara Bano v Union of India [AIR 2017 SC 4609]
