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.
Genesis 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 legislation 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.
- Based on these recommendations, a 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.
- However, there were separate personal laws for muslim, chirstian and Parsis.
- In order to bring uniformity, the courts have often said in their judgements that the government should move towards a uniform civil code.
- The judgement in the Shah Bano case is well known, but the courts have made the same point in several other major judgements.
- By arguing that practices such as triple talaq and polygamy impact adversely on the right of women to a life of dignity, the Centre has raised the question whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights.
Implications of UCC
- Protection to Vulnerable Section of Society: 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.
- Simplification of Laws: 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.
- 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, Sharia law, and others.
- Adhering to Ideal of Secularism: Secularism is the objective enshrined in the Preamble, a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
- Gender Justice: India has separate sets of personal laws for each religion governing marriages, divorce, succession, adoption and maintenance.
- However, the rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example.
- If a uniform civil code is enacted, all personal laws will cease to exist. It will do away with gender biases in Muslim law, Hindu law and Christian law that have been often challenged by women on the ground that they violate the right to equality.
Challenges To UCC
- Exceptions in Central Family Laws: The preliminary sections in all central family law Acts enacted by Parliament since Independence declare that they will apply to “the whole of India except the state of Jammu and Kashmir.”
- A Second exception was added in 1968 in all these Acts, pronouncing that “nothing herein contained shall apply to the Renoncants in the Union Territory of Pondicherry.”
- A third exception, none of these Acts applies in Goa, Daman and Diu.
- A fourth exception, relating to the north-eastern states of Nagaland and Mizoram, emanates from Articles 371A and 371G of the Constitution, decreeing that no parliamentary legislation will replace the customary law and religion-based system for its administration.
- Communal Politics: The demand for a uniform civil code has been framed in the context of communal politics. A large section of society sees it as majoritarianism under the garb of social reform.
- Constitutional Hurdle: Article 25 of Indian constitution, that seeks to preserve the freedom to practise and propagate any religion gets into conflict with the concepts of equality enshrined under Article 14 of indian Constitution.
Road Ahead
- Collaborative Approach: The government and society will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives.
- Brick by Brick Approach: Rather than an omnibus approach, the government could bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages.
- Gender-Sensitive Approach: The government would also do well to complement the overdue move towards a uniform civil code with a comprehensive review of several other laws in the context of gender justice.
- Pan-India Approach: Bringing Jammu and Kashmir into the country’s mainstream of family laws is an exercise that needs to be undertaken also for Goa, Daman and Diu, Puducherry, Nagaland and Mizoram.
The citizens’ fundamental rights to equality before law and equal protection of the laws guaranteed by the Constitution call for a similar action in respect of these territories as well. So does the provision of Article 44 enjoining the state to make endeavours to secure for the citizens a uniform civil code throughout the territory of India.
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