UCC is a needed but delayed legislation
No doubt India needs a Uniform Civil Code (UCC). It is a constitutional mandate. Therefore, nobody can oppose it. What one can oppose is its contents, form or structure. Of course there can be deliberations as to what it should include and what it should not.
UCC should be a secular code of legal provisions favouring no religion. Its prime objective is to ensure that women have equal rights to that of men in marriage, divorce, inheritance, and adoption. It would in no way do away with any religious belief, faith, or practice. It should focus exclusively on reforming family related laws and nothing else.
Almost all the civil laws, except the personal laws, are uniformly applicable to every citizen irrespective of their religion. By that we have achieved the goal of UCC to a great extent.
The State of Uttarakhand passes UCC
With the passage of UCC in the legislative assembly on 7th February 2024, Uttarakhand became the first state in the country to implement a Uniform Civil Code, which presents common law for marriage, divorce, inheritance of property, etc.
Constitutions mandates UCC
The Article 44 of the Indian Constitution mandates that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. That means the State shall strive to achieve a common civil code among its citizens.
Though there were heated deliberations regarding UCC at the time of making of the Constitution, no consensus was at sight as to its framework or modalities of its implementation. This was because different sections of members of the Constituent Assembly understood it differently.
The Article 44 was a compromise formula intended to satisfy different warring factions.
Personal laws were implemented under a law
In Sarala Mudugal judgement the SC points out that the “respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code”.
Therefore, no progressive force or person can oppose the introduction of UCC for all the citizens in India, which runs counter to the spirit of Indian Constitution.
What does UCC intend to reform?
The precise objective of UCC is to establish a common legal framework for all citizens, irrespective of their religion, in matters like marriage, divorce, inheritance and adoption.
It aims to do away with the patriarchal personal laws and to ensure gender equality. A UCC is expected to ensure that all citizens, irrespective of their gender, sex, religious or cultural beliefs, are entitled to equal rights in marriage and related matters, including live-in relationships.
In no way, it intends to restrict the beliefs, faiths, or diverse religious practices of any community or religious group.
Many laws have been made uniform in India
In the British period, religious based criminal laws of India were reformed piecemeal resulting in the enactment of Indian Penal code (IPC), Code of Criminal Procedure (CrPC), and Indian Evidence Act.
In the civil side, commonly applicable civil laws such as Registration Act, Limitation Act, Code of Civil Procedure, Transfer of Property Act, Dowry Prohibition Act, Prohibition of Child Marriage Act, Protection of Women from Domestic Violence Act, etc were formulated.
But no effort was made to codify the family related personnel laws into a unified one, except for Hindus, Christians and Parsis. Muslims were allowed to be governed by uncodified personal laws. Such personal laws allow polygamous marriages, instant divorces, and unequal division of property between males and females.
Even Muslim countries like Turkey and Egypt enacted common civil code. Nowhere in the world personal laws are considered so sacrosanct as in India.
Demand for UCC is very old
The demand for a UCC was first made in 1937 by the All India Women’s conference. Its purpose was to end the discrimination against women in the personnel laws.
The demand later surfaced in the Constituent Assembly, while deliberating the Hindu Code Bill and in the floors of judiciary many a time. Now the ruling party has taken it as a political agenda.
Hindu law reform was a step towards UCC
The Hindu Code Bill was a comprehensive omnibus legislation that sought to reform, unify family law for all people who were not Christians, Muslims or Parsis. It was a first step towards UCC. Still the Hindu laws leave many black spots like provisions on ancestral property, Hindu Undivided Family (HUF) etc.
The Government had to face stiff opposition from the conservative sections of Hindus. The most vociferous opposition came from the Hindu Mahasabha. It ended up in making a diluted version of the Hindu Code, in the form of four laws. The laws over the decades, due to amendments and judgements, have expanded its scope and incorporated almost all that was envisaged originally in the reasonably gender just Hindu Code.
The Christians and Parsis have their codified marriage and divorce laws but the Jewish law remains uncodified. In the judgement in Mrs Mary Roy case, the SC ordered equal share of property to daughters as that of sons of Christians governed by Travancore Christian Act, 1916 ending the gender discrimination in the Christian families.
On the other hand, Muslim personal laws remained a step behind in terms of gender justice.
UCC turns into a political game plan
UCC has turned into a political polemic, allowing people and parties to queue up on both sides of the divide to support or oppose it, with the obscure intention to woe the Muslims, its staunch opponents, for their electoral gains, rather than bringing in a salutary legal reform.
The opponents of UCC argue, in violation of the constitutional mandate, that the implementation of the UCC would go against their Fundamental Rights, such as freedom to profess and practice one’s religion under Article 25, and the right to have a distinct culture under Article 29 of the constitution. They claim it would curb the special provisions granted to states like Nagaland and Mizoram, specifically guaranteed by the Constitution.
The religious freedom under the Constitution is not absolute, but subject to public order, morality, and health. The Article 25 (2) of the Constitution even permits the State to regulate or restrict any economic, financial, political, or other secular activity associated with religious practices, as well.
SC wants the Government to formulate UCC
The Supreme Court (SC), in a slew of judgments, has unequivocally called for the implementation of UCC.
The most important judgements are in were the Mohd. Ahmed Khan v Shah Bano Begum [AIR 1985 SC 945], Jordan Diengdeh v S.S. Chopra [ AIR 1985 SC 935 ], and the Sarla Mudgal v Union of India [ AIR 1995 SC1531 ].
In Shah Bano case, the husband was asked to pay maintenance to her wife under Section 125 of the CrPC. But to neutralise its effect the then-government enacted an infamous legislation, The Muslim Women’s Protection of Rights on Divorce) Act, 1986, with a view to woe the Muslim population.
In Sarala Mudgal case the SC did not validate the second marriage of a Hindu who converted himself into Muslim to escape the penal consequences of bigamy. And projected the need for a UCC.
In the judgement the SC adds, “The Governments – which have come and gone – have so far failed to make any effort towards “unified personal law for all Indians”. The reasons are too obvious to be stated. The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural laws into one unified code. When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India”.
The later SC judgment in Shayara Bano v Union of India outlawed the draconian practice of triple talaq as a step towards ending personal law practices that are discriminatory towards women.
Proposing UCC without a draft remains a mystery
The government proposes UCC without a draft of it, allowing people to guess its nature according to their imagination and vested interest.
Even the 21st Law Commission of India failed to prepare one, but it brought out a well-conceived and researched Consultation Paper on Reforming Family Laws suggesting in what practical manner the government can achieve UCC. The 22nd Law Commission is at work on this issue probably in tune with the motive of the government.
People in general apprehend that the UCC being pushed by the Union Government is nothing but a tool to strike the Muslim community. So, what is required is to prepare its draft and put it for wider public debate rather than making all round confusion among ill-informed people for political consolidation and electoral gains.
The political tone of the proponents of UCC appears to be communal one, despite its progressive paraphernalia. To counter its communal trappings what the progressive forces must do is to highlight its outcomes and social benefits.
Minority rights may conflict with UCC
There are also, however, protective provisions of other kinds which aim at safeguarding the identity and interests of religiously, linguistically, and culturally disadvantaged groups that emanate from their being a numerical minority.
They come under Articles 29(1) and 30(1) meant for minorities, Articles 244(1) & 244(2) providing for the 5th and 6th Schedules, and Articles 371A and 371G for Nagaland and Mizoram respectively, of the Constitution.
The UCC may come into direct conflict with such provisions of the Constitution existing in north eastern states. Such matters need to be resolved legally, politically, and socially.
Divorce laws need to be made more flexible
The process and grounds for divorce may vary from religion to religion depending on their attitudes towards marriage.
In Christian law, divorce is stigmatised though court have diluted some of its rigour. The process of divorce under the Parsi Marriage and Divorce Act is a tedious, time-consuming and inconvenient.
In some cases, even the grounds for divorce are problematic. Under Muslim law, there are several grounds based on which women can seek divorce. But men do not need to state their grounds for divorce.
A progressive UCC would standardise the process of divorce, keeping the necessary diversity intact, across communities, and ensure that everyone, irrespective of their gender, has access to equal rights for divorce on flexible grounds.
UCC should be a gender-neutral law
All married and live-in partners should be entitled to adopt a child, irrespective of their sexual orientation.
A progressive UCC would be gender-neutral, and entitle all children – biological, adopted, surrogate, legitimate and illegitimate – to inherit property. In India, succession and inheritance laws vary depending on which community you belong to.
Most personal laws tend to discriminate heavily against women – whether as daughters, mothers, or widows.
HUF for tax purpose need to be done away with
A Hindu Undivided Family (HUF) which consists of persons all directly descended from a common ancestor. Including the wives and daughters of a male descendent, is being treated similarly to an individual account needs to be abolished.
Uniformity need not end diversity
The SC in T.M.A Pai Foundation v State of Karnataka & Others states: “The essence of secularism in India is recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole united India”
Therefore, India need not necessarily have uniformity but the diversity should be in accordance with the universal principles of human rights including gender justice.
Special Marriage Act is a unified Code
In fact, the Special Marriage Act, 1954 (SMA) is a secular code for marriage, divorce, and inheritance. It touches upon many areas that should come under UCC.
It allows a person to give up his personal law without abandoning his religion and adopt the secular legal provision instead. It does not prescribe any religious ceremony for marriage or show any discriminations between male and female.
However, there are some problems in SMA too. If two Hindus marry under SMA they will be governed by Hindu Succession Act but if two Muslims marry, they will be governed by Indian Succession Act. Such anomalies need rectification.
Requires a gender just personal law code
In fact, what is required is a non-discriminatory personal legal code that highlights gender justice and equality for women, rather than a civil code that unifies every diversity.
Having no civil law for Muslims and some others in family matters has given rise to a permanent divide among citizens on religious lines, in our much-polarised political climate. Some areas of Hindu and Christian personal laws also require reforms.
No modern state professing secularism can permit religious doctrines to remain superior to the laws of the land. But diverse cultural practices need to be accommodated in the broad unified common law code. The UCC, if made properly, can make gender equality a reality. That is the ultimate purpose of UCC.
Further reading
- Law Commission of India: Consultation paper on Reform of Family Law, 31 August 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
