The Uniform Civil Code (UCC) calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption. The code comes under Article 44 of the Constitution, which lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
The issue has been at the center of political narrative and debate for over a century and a priority agenda for the Bharatiya Janata Party (BJP) which has been pushing for the legislation in Parliament. The saffron party was the first to promise the implementation of UCC if it comes to power and the issue was part of its 2019 Lok Sabha election manifesto.
Why is Article 44 important?
The objective of Article 44 of the Directive Principles in the Indian Constitution was to address the discrimination against vulnerable groups and harmonise diverse cultural groups across the country. Dr. B R Ambedkar, while formulating the Constitution had said that a UCC is desirable but for the moment it should remain voluntary, and thus the Article 35 of the draft Constitution was added as a part of the Directive Principles of the State Policy in part IV of the Constitution of India as Article 44. It was incorporated in the Constitution as an aspect that would be fulfilled when the nation would be ready to accept it and the social acceptance to the UCC could be made.
Ambedkar in his speech in the Constituent Assembly had said, "No one need be apprehensive that if the State has the power, the State will immediately proceed to execute…that power in a manner may be found to be objectionable by the Muslims or by the Christians or by any other community. I think it would be a mad government if it did so."
Origin of Uniform Civil Code
The origin of the UCC dates back to colonial India when the British government submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.
Increase in legislations dealing with personal issues in the far end of the British rule forced the government to form the B N Rau Committee to codify Hindu law in 1941. The task of the Hindu Law Committee was to examine the question of the necessity of common Hindu laws. The committee, in accordance with scriptures, recommended a codified Hindu law, which would give equal rights to women. The 1937 Act was reviewed and the committee recommended a civil code of marriage and succession for Hindus.
What is the Hindu Code Bill?
The draft of the Rau Committee report was submitted to a select committee chaired by B R Ambedkar that came up for discussion in 1951 after the adoption of the Constitution. While discussions continued, the Hindu Code Bill lapsed and was resubmitted in 1952. The bill was then adopted in 1956 as the Hindu Succession Act to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs. The Act reformed the Hindu personal law and gave women greater property rights, and ownership. It gave women property rights in their father's estate.
The general rules of succession under the Act 1956 for a male who dies intestate is that heirs in Class I succeed in preference to heirs in other classes. An amendment to the Act in the year 2005 added more descendants elevating females to Class I heirs. The daughter is allotted the same share as is allotted to a son.
Difference between civil laws and criminal laws
While the criminal laws in India are uniform and applicable equally on all, no matter what their religious beliefs are, the civil laws are influenced by faith. Swayed by religious texts, the personal laws which come into effect in civil cases have always been implemented according to constitutional norms.
What are personal laws?
Laws that apply to a certain group of people based on their religion, caste, faith, and belief made after due consideration of customs and religious texts. The personal laws of Hindus and Muslims find their source and authority in their religious ancient texts.
In Hinduism, personal laws are applicable to legal issues related to inheritance, succession, marriage, adoption, co-parenting, obligations of sons to pay their father’s debts, the partition of family property, maintenance, guardianship, and charitable donations. In Islam, personal laws apply to matters relating to inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from Quran.
What will Uniform Civil Code do?
The UCC aims to provide protection to vulnerable sections as envisaged by Ambedkar including women and religious minorities, while also promoting nationalistic fervour through unity. When enacted the code will work to simplify laws that are segregated at present on the basis of religious beliefs like the Hindu code bill, Shariat law, and others. The code will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all. The same civil law will then be applicable to all citizens irrespective of their faith.
- National unity: Article 44 divests religion from social relations and personal law. Citizens belonging to different religious and denominations follow different property and matrimonial laws which is an affront to the nation’s unity
- The objective of Article 44 of the Directive Principles in the Indian Constitution is to address the discrimination against vulnerable groups and harmonise diverse cultural groups across the country
- Promotion of fraternity: Diversity in personal matters along with religious differentiation leads to sentimental tension between different communities and that the object of Article 44 is to introduce a common civil code for all which is essential to promote fraternity, unity and national integration
- Progressive youth of the country:The youth of India belonging to various communities, tribes, castes or religions who solemnise their marriages should not be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce.
- Simplification of the laws: The code would help in simplification of the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all as the same civil law would then be applicable to all citizens irrespective of their faith.
Achieving gender justice
- Inbuilt gender injustice within personal laws: It has been known that personal laws of various communities have inbuilt gender injustice due to social economic conditions under which the laws have been evolved
- Granting socio-economic rights: Indian women have only been granted equality in a formal way by providing them with an equality in political rights through the Indian constitution . Position of women within their family is still pitiable due to the unequal rights.
- Addressing the social evils:A uniform civil code if implemented shall lay the grounds for women to overcome various social evils that exist in the society such as the bigamy system ,the dowry system, control of men etc which make women feel inferior and degraded.
Supreme Court's View
- Shah Bano Case (1985): Supreme Court dealt with issue of maintenance under Section 125 of code of criminal procedure after diverse of Shah Bano with her husband
- The court observe that parliament should outline the contours of a common Civil Code because it is an instrument for facilitating equality before law and national harmony
- Sarla Mudgal vs. Union of India (1995): Supreme Court directed the government to secure a Uniform Civil Code based on the model of Hindu cold for the protection of abused and achievement of national solidarity
- Delhi High Court (2021): The court has said a Uniform Civil Code (UCC) should not remain a mere hope in the Constitution, expressing regret over conflicts in society due to differences in various personal laws.
- A single-judge bench of court observed that there is a requirement for such a code that would be “common to all” and enable uniform principles being applied in respect of aspects such as marriage, divorce, succession, etc
True secularism demands a Uniform Civil Code
- Preamble of Constitution: the preamble states that India is a secular and democratic republic
- Secular state: secular state does not discriminate against anyone on the basis of religion, which means that there is no state religion at all
- Religion is concerned only with the relationship between humans and God and state shall not intervene with the individual's life
- However the Uniform Civil Code seeks to interfere with personal laws of various religions
- R.S Bommai vs. Union of India: Court held that religion is a matter of individual faith and cannot be mixed up with secular practice and can be regulated by the government through enactment of law
- There is a principle of positive secularism throughout India, which is distinct from the theory of secularism adopted by the US and other European states under which there is a wall of separation between religion and state
Road ahead
- In modern Indian society, which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating, the progressive steps like Uniform Civil Code are the need of the hour
- Having a Uniform Civil Code is not just a matter of justice but it also reflect how a country accommodates the diverse population residing within it.
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