The Constitution of India is the supreme law of the land.[i] It guarantees protection to every citizens and people in India. It provides for the frame-work of the organs of the Government. Not only this, the Constituent Assembly drafting Constitution tried to provide as many rights as they could. Therefore, Part III was incorporated which consists of fundamental rights of the citizens of and people in India. The Part IV is there in the Constitution which talks about the Directive Principles of State Policy which defines the role of the government in simple words, it talks about the role of the government towards achieving the goals which is rendered in the Preamble of the Constitution of India.
In the same way, the Directive Principle of State Policy talks about the Uniform Civil Code under Article 44 of the Constitution of India.
“The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”[ii]
WHAT IS THE UNIFORM CIVIL CODE?
Article 44 requires the state to strive to secure for the citizens of India a uniform civil code throughout India.
An objection was taken to this provision in the Constituent Assembly by several Muslim members who apprehended that their personal law might be abrogated. This objection was met by pointing out: (i) that India had already achieved a uniformity of law over a vast area; (ii) that though there was diversity in personal laws, there was nothing sacrosanct about them; (iii) the secular activities, such as, inheritance, covered by personal laws should be separated from religion; (iv) that a uniform law applicable to all would promote national unity; and (v) that no legislature would forcibly amend any personal law in future if people were opposed to it.[iii]
Although the spirit and intent behind “one nation one law” is worth appreciating, the task has never been easy. Back in those days, the Constituent Assembly, comprehending the benefits along with the complexities attached to this idea, had vigorously debated the subject at length. The founding fathers ultimately decided not to go ahead with uniform personal law as a justifiable right in wake of severe opposition from the Muslim members. The socio-economic and political conditions in the country were also not in favour of that.
In fact, KM Munshi, the then member of the Constituent Assembly and also the drafting committee of the Constitution, headed by BR Ambedkar, had strongly argued for personal laws to be divorced from religion. Questioning the linkage between personal laws and religion, Munshi had argued that Muslims need to come out of their isolationist attitude and should strongly support a Uniform Civil Code. He had also referred to the Hindu personal laws which, at that time, were discriminatory to women. Even Ambedkar’s draft report had strongly argued for a UCC.
In early 1950s, Ambedkar publicly argued for a UCC citing that India already had common civil code in many aspects like transfer of property, contracts, etc. Them why not include personal laws? However, he modified his stand later and conceded that UCC could be made voluntary, to start with. The Muslim members of the Constituent Assembly argued that Muslim Personal Laws were rooted in the Quran, and that Muslims were mandated to follow personal laws as enshrined in the Quran and not as per any other law book. They asserted that personal laws were part and parcel of their religion and culture for ages and their right to their personal laws was a fundamental right.
They also argued that UCC in matters of marriage, divorce, succession, inheritance would be tyrannical to minority rights. Given this strong opposition, the committee decided not to put personal laws under fundamental rights per se, but provided for their protection under various other related provisions and chose to put UCC under a “non-justiciable” constitutional provision.
Later, Nehru also conceded to the opposition and hence, UCC, as a future desired goal for the nation, found a place under directive principles which were supposed to be the guiding principles of governance.
Since the early ’50s, varying degrees of socio-economic and political conditions – illiteracy, ignorance, poverty, climate of hate and divisiveness in the backdrop of partition, religious and sectarian differences, traditions, practical constraints of implementation, absence of political consensus and unfavourable public mood have never allowed Parliament and successive Union governments to venture out towards a UCC. Even the Hindu Code Bill faced some serious resistance from conservatives, reactionaries and from some key organizations in the 1950s.
Interestingly, codification process of the Hindu Personal Laws had started way back in 1941 with Hindu Law Committee coming into existence. Since the passing of Hindu Marriage Act in 1955, critical reforms in Hindu Personal Laws took place – initially by codification and later by means of amendments until as recent as in 2013 – on daughters’ inheritance, divorce, dissolution of marriage, children, compensation, etc. And, it was not until the 2005 Amendment in Hindu Succession Act, 1956 that daughters were allowed equal rights to coparcenary property, as sons.
So even after long years of codification, the Hindu Code has continued to being amended and the reasons are understandable. The dynamic and complex nature of evolution and progress in society with time, the constant need to remove pernicious and discriminatory practices that had set in, the need to usher in equality and justice for all in accordance with constitutional provisions and values (of liberty, life, equality, freedom, justice, nondiscrimination and human dignity) in matters of personal laws, the critical need to harmonize differences in practices within the Hindu community, the nation couldn’t have marched forward without responding to these tough questions and challenges on a time to time basis.
However, these reforms have never been free from serious difficulties and grave challenges. Roadblocks of varying degrees of difficulties have continued to rock these reforms, right since 1950s. Arguably, resistance to change in matters of faith and age-old customs and practices, existence of divisions within the community on various lines, regional differences in customs and traditions, varying tribal practices, changing and evolving face of the society with time would have all led to such contentions and difficulties towards codification of Hindu Personal Laws and its amendments.
WHAT ARE THE PROS OF THE UNIFORM CIVIL CODE?
- To provide equal status to all citizens: In the modern era, a secular democratic republic should have a common civil and personal laws for its citizens irrespective of their religion, class, caste, gender etc.
- To promote gender parity: It is commonly observed that personal laws of almost all religions are discriminatory towards women. Men are usually granted upper preferential status in matters of succession and inheritance. Uniform civil code will bring both men and women at par.
- To accommodate the aspirations of the young population: A contemporary India is a totally new society with 55% of its population below 25 years of age. Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity. Their view of shedding identity on the basis of any religion has to be given a serious consideration so as to utilize their full potential towards nation building.
- To support the national integration: All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are same for all. With the implementation of Uniform Civil Code, all citizen will share the same set of personal laws. There will be no scope of politicization of issues of the discrimination or concessions or special privileges enjoyed by a particular community on the basis of their particular religious personal laws.
- To bypass the contentious issue of reform of existing personal laws: Existing personal laws are mainly based on the upper-class patriarchal notions of the society in all religions. The demand of UCC is normally made by aggrieved women as a substitute for existing personal laws as patriarchal orthodox, people still deem the reforms in personal laws will destroy their sanctity and oppose it profusely.
WHAT ARE THE CONS OF UNIFORM CIVIL CODE?
- Practical difficulties due to diversity in India: It is practically tough to come up with a common and uniform set of rules for personal issues like marriage due to tremendous cultural diversity India across the religions, sects, castes, states etc.
- Perception of UCC as encroachment on religious freedom: Many communities, particularly minority communities perceive Uniform Civil Code as an encroachment on their rights to religious freedom. They fear that a common code will neglect their traditions and impose rules which will be mainly dictated and influenced by the majority religious communities.
- Interference of state in personal matters: The constitutionprovides for the right to freedom of religion of one’s choice. With codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.
- Sensitive and tough task: Such a code, in its true spirit, must be brought about by borrowing freely from different personal laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality, and adopting expansive interpretations on marriage, maintenance, adoption, and succession by acknowledging the benefits that one community secures from the others. This task will be very demanding, time and human resource wise. The government should be sensitive and unbiased at each step while dealing with the majority and minority communities. Otherwise, it might turn out to be more disastrous in a form of communal violence.
- Time is not yet suitable for this reform: Considering a major opposition from Muslim community in India over this issue overlapping with controversies over beef, saffronization of school and college curriculum, love jihad, and the silence emanating from the top leadership on these controversies, there needs to be given sufficient time for instilling confidence in the community. Otherwise, these efforts towards common code will be counterproductive leaving minority class particularly Muslims more insecure and vulnerable to get attracted towards fundamentalist and extremist ideologies.
The court has reiterated its view on the need to have a uniform civil code in the country time and again. The court has emphasized in Sarla Mudgal v. Union of India,[iv]that article 44 is based on the concept that there is no necessary relation between religion and personal law in a civilized society. Article 25 guarantees religious freedom whereas article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined in articles 25, 26 and 27. The Hindu law though of a sacramental origin has been secularized. The court has pointed out that the successive governments in India till-date have been wholly remiss in their duty if implementing the constitutional mandate under article 44. Accordingly, the court has again urged the Government of India to have a fresh look at article 44 and endeavor to secure for the citizens a uniform civil code throughout the territory of India. But in Lily Thomas v. Union of India,[v] clarified the remarks made by it earlier in Sarla Mugdal.[vi] The court now asserted that it has not issued any direction in that case for the enactment of a uniform civil code.[vii]
Nevertheless, the court has continued to emphasize that a common civil code will help the cause of the national integration by removing the contradictions based on the ideologies.[viii]
In October 2015, Supreme Court of India asserted the need of a Uniform Civil Code and said that, “This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court”.[ix] On 30 November 2016, British Indian intellectual Tufail Ahmad unveiled a 12-point document draft of it, citing no effort by the government since 1950.
Not only this, the Law Commission of India had called for papers on Uniform Civil Code for better understandings or new ideas.[x]
[i] S.R. Bommai v. Union of India, AIR 1994 SC 1918.
[ii] Article 44 of the Constitution of India, 1950.
[iii] Constituent Assembly Debate Vol. VII, 540-2.
[iv] AIR 1995 SC 1531.
[v] AIR 2000 SC 1650.
[vii] Maharashi Avadhesh v. Union of India, (1994) Supp. 1 SCC 713.
[viii] John Vallamattom v. Union of India, (2003) 6 SCC 611.
[ix] Anand, Utkarsh (13 October 2015), Uniform Civil Code: There’s total confusion, why can’t it be done, SC asks govt, New Delhi: The Indian Express.
[x] http://www.livelaw.in/lci-calls-submissions-uniform-civil-code Retrieved on 6/6/2018.