It has been written by Riya Gupta a law student of Symbiosis Law School, Noida).

WHAT IS UNIFORM CIVIL CODE?

The expression Uniform Civil Code means a legal framework for personal laws that shall be uniformly applicable to all citizens irrespective of their religion, race, caste and creed.

The Directive Principles of State Policy, Part IV, ‘Article 44’ of the Constitution of India provides that “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India.”

The constitution directs the state to adopt and implement a Uniform Civil Code that applies to all Indian citizens under this Article. However, the Directive Principles of State Policy are explicitly prohibited from being enforced by any court under Article 37 of the Constitution. Although it is at the discretion of the state (the government and Parliament of India) to enact such a law when it deems it to be necessary but Article 37 at the same time states that it is the responsibility of the State to follow these principles while making laws as they are important for the governance of the country, which makes it necessary for the state to act upon these principles to execute the directions given by the constitution.

Even though after so many years of Independence and enforcement of the constitution, the vision of the constitution makers to have a Uniform Civil Code for India is not achieved. Nevertheless, the demand for UCC is raised from time to time.

CURRENT PERSONAL LAWS IN INDIA

India is a diverse country with several religions. Therefore, there are different laws governing people of different religions in the matter of interpersonal relationships, marriage, divorce, child custody, inheritance, etc. Indian Personal Laws are divided into:

· Hindu law (which applies to Hindus, Sikhs, Jains, and Buddhists)

· Muslim law for Muslims

· Parsi law for Parsis

· Christian law for Christians

· Special Marriage Act for secular marriages and some other laws.

THE CONSTITUENT ASSEMBLY DEBATE ON UCC

The inclusion of UCC as a directive principle of state policy was the result of the efforts made by Minoo Masani. He, along with Hansa Mehta, Rajkumari Amrit Kaur, and Dr. B.R. Ambedkar, was in support of including UCC as a Fundamental Right in the constitution., but the majority of the subcommittee on fundamental rights disagreed, on the ground that it was beyond the scope of “Fundamental Rights” and hence, should not be included. However, it was later decided to divide rights into ‘justiciable Fundamental Rights’ and ‘non-justiciable Directive Principles of State Policy’, and the sub-committee agreed to make enactment of the UCC as a directive principle.

During the debates about the UCC in the Constituent Assembly, there was significant opposition from several members, particularly from the Muslim community. These members sought to amend the article drafted by the sub-committee to include that no group or community would be compelled to relinquish their own personal laws in case of enactment of a Uniform Civil Code. It was argued that the right of people to follow their own personal law and religion was among the Fundamental Rights. If anything is done affecting the personal law, it would be interference with their right to religion. Even in a Secular State, citizens belonging to different communities must have freedom to practice their religion.

However, there were some arguments in favour of UCC as well. K.M. Munshi contended that the UCC is not against ‘Article 19’, because the State may regulate secular activities and introduce social reforms or welfare measures under this article. He also highlighted the issue of gender justice, stating that the biased nature of personal laws was detrimental to the status of women. Since the right to equality is a fundamental right given in the constitution, therefore unequal personal laws should not continue.

In the end, UCC was kept as a directive principle in Article 44 of the Constitution of India.

THE GRADUAL APPLICATION OF UCC IN INDIA

Evolution rather than Revolution was the envisaged path of Indian legal development and India could not simply abolish the personal law system overnight. India has been operating a uniform law in the absence of a formally codified Uniform Civil Code by enacting laws and by various judgements of the Supreme Court. This gradual and indirect approach towards achieving uniformity in laws, without explicitly conveying the nature of these changes to the people, serves as a practical method for realizing UCC. India has been creating a mirror image of UCC, instead of directly enacting a law applicable to individuals of varying religious convictions, and gradually and cautiously advancing towards harmonizing its distinct Indian Personal Laws without challenging their status.

LEGISLATURE AND UCC

In India, governments made attempts to secularise the personal laws. The laws which are enacted to govern people irrespective of the religion of the parties are as follows:

· The Special Marriage Act, 1954- The act allowed two Indians to marry irrespective of their religion.

· The Dowry Prohibition Act, 1961

· The Protection of Women from Domestic Violence Act, 2005

· The Prohibition of Child Marriage Act, 2006

· Maintenance and Welfare of Parents and Senior Citizens Act, 2007

· Medical Termination of Pregnancy (MTP) Amendment Act, 2021

· Section 125 of Criminal Procedure Code, 1973

JUDICIARY AND UCC

In India, courts have adopted two opposing perspectives concerning Article 44. According to one stance, courts can strike down unequal and biased personal laws because such regulations violate the fundamental right to equality. Conversely, the opposing standpoint contends that because personal laws are safeguarded under freedom of religion and they do not come under the definition of “Law’ as defined in “Article 13”, they are outside the purview of Fundamental rights.

Mohd. Ahmed Khan v. Shah Bano Begum (1985) [i]:

· It was a landmark judgement in India, as it went beyond the usual approach of resolving cases through the interpretation of personal laws and addressed the issue of maintenance for divorced Muslim women. The Supreme Court ruled that Muslim women are entitled to maintenance beyond the Iddat period under ‘Section 125 of the Criminal Procedure Code’, irrespective of personal laws.

· The court noted with disappointment that Article 44 of the constitution had not been effectively implemented. The court believed UCC has the potential to enhance national integration by removing different personal laws.

Sarla Mudgal v. Union of India (1995) [ii]:

· The SC held that a Hindu husband's conversion to Islam for the sole purpose of contracting a second marriage without divorcing his first wife does not invalidate his first marriage under Hindu law, emphasizing the need to prevent religious conversion for evading monogamy.

· After the Shah Bano case, this case is important because, for the first time, SC ventured to ask the executive about the steps it had taken to implement Article 44. The SCC not only emphasized the need to have a UCC in India but also went one step further and requested the government of India through the Prime Minister to have a fresh look at Article 44.

Lily Thomas v. Union of India (2000) [iii]:

· The court in this case, held that SC has no power to issue directions for enforcement of Directive Principles of State Policy of the Constitution including Article 44.

John Vallamattom v. Union of India (2003) [iv]:

· Once again, the issue of the Uniform Civil Code and its suitability was brought up by the Supreme Court. The judges in this instance highlighted the importance of a Uniform Civil Code and its significance in fostering national unity by eliminating conflicting viewpoints based on ideologies.

CONSTRAINTS TO ENACT UCC

1. UCC poses a challenge to the Right to Freedom of Religion: The constitutional conflict between freedom of religion and the requirement to have a UCC, has not been resolved. Those who are against the UCC argue that it clashes with the freedom of religion safeguarded by Articles 25 to 28 of the Indian Constitution. A uniform civil code would infringe on their right, as it would require individuals to follow laws relating to marriage that may not be as per their religious beliefs and practices.

2. The UCC is against the Minority: There is a fear and lack of confidence in the minority population of the country that the UCC would intervene in their cultural and religious laws and would impose the laws of the majority religion (Hinduism) on them.

3. Lack of Consensus: Divergent opinions exist within the diverse social groups in India concerning the implementation of UCC. This divergence of viewpoints poses a challenge in enacting such a code because it would require the support of all these communities.

NEED AND IMPORTANCE OF UCC

1. UCC as a mechanism to attain national unity and integrity: India possesses a distinctive character, not only due to its geographical attributes but also due to its intricate social landscape. Diversity within the social fabric stands as a key element of Indian society. Enacting a Uniform Civil Code would contribute to India's goal of fostering national unity, a goal that certain members of the constituent assembly wanted to achieve through UCC. The implementation of a UCC to govern marriage and associated affairs irrespective of faith or religion would be instrumental.

2. UCC as a means to achieve equality and gender justice: Personal laws in India are often discriminatory towards women. UCC would play a pivotal role in ensuring equal rights for women across India, regardless of their religious beliefs, caste, or creed. When it comes to the rights of women, all personal laws have different provisions and women of different religions face inequality in the absence of UCC. Implementing a uniform civil code would address such disparities and advance the cause of gender equality.

3. The Uniform Civil Code as a method to achieve secularism: India is a nation that practices secularism and keeps equidistance from all religions. As a secular country, we possess uniform laws for regulating both civil and criminal matters. However, the absence of UCC presents a challenge to the principle of secularism.

4. The Uniform Civil Code as a method to establish Uniformity and Reliability: Introducing the UCC would ensure consistency in the application of regulations, as it would be uniformly applicable to all individuals. This approach would reduce the likelihood of prejudice or inconsistencies in the execution of the law.

5. UCC as a means to achieve harmony: The implementation of a UCC could potentially alleviate tension and disputes among various religious or communal factions by offering a common set of rules for all to adhere to.

CONCLUSION

UCC was envisaged as a duty of the state to enact a common civil code governing the personal laws of the people of India irrespective of their faith, religion, caste, creed race, etc. It was not possible to enact UCC at that time because the population was not ready to accept the change in the personal laws that they had been following for a long time and any interference in their personal laws was not acceptable.

However, there is a need to enact UCC in the present modern society as the absence of such a uniform law is creating problems in society as inter-caste and inter-religious marriages increase, there is a rise in cases in courts regarding the conflict of personal laws and the general laws.

However, ensuring a Uniform Civil Code should not eliminate the option for citizens to follow religious laws if they choose to do so. The presence of civil laws does not invalidate the coexistence of a religious legal framework. For example, in cities like London, New York, or Toronto, individuals often undergo a civil marriage and then a religious ceremony in a church or synagogue.

References:

1. Ajai Kumar, Uniform civil code: Challenges and constraints (2012).

2. Shimon Shetreet & Hiram E. Chodosh, Uniform civil code for India: Proposed blueprint for scholarly discourse (2015).

3. PROF. KUSUM, FAMILY LAW LECTURES: FAMILY LAW I (6 ed.).

[i] Mohd. Ahamad Khan v. Shah Bano Begum, AIR 1985 SC 945.

[ii] Sarla Mudgal v. Union of India, AIR 1995 SC 1531.

[iii] Lily Thomas v. Union of India, AIR 2000 SC 1650.

[iv] John Vallamattom v. Union of India, AIR 2003 SC 2902.