Uniform Civil Code: Divide or Unite?

 

By Ananya Varma and Yatan Sharma

March 13, 2020

 

‘The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’¹, reads the Article 44 of the Indian Constitution. Constituent Assembly had the opinion that the article could play a significant role in addressing the issue of discriminatory practices and amplifying societal differences, and will simultaneously harmonize the diverse cultural and religious practices. At the same time, the members of the assembly were reluctant to categorize the article under fundamental rights. As a repercussion, it has been classified under the Directive Principles of State Policy (DPSP), which are not obligatory in nature.

 

Uniform Civil Code (UCC) refers to a single law applicable to all citizens of India in their personal matters such as marriage, divorce, custody, inheritance etc. It is intended to replace the system of fragmented personal law, which currently governs interpersonal relationships and related matter within different religious communities.²

 

Woefully, even after the 75 years of being republic and a constitutional democratic state, we do not have a uniform civil code for a united county which is governed by the single and supreme constitution. Preceding government did little endeavours to bring UCC into force. Nevertheless, the current BJP led NDA government has shown a great resolute to implement the UCC in the country.

 

However, the amorphous nature of UCC has made the masses (especially minorities) more apprehensive about its consequences. Public is disquiet about the fact that the implantation of UCC may infringe their fundamental right i.e. Article 25 and 26 which guarantee people to practice and profess any religion freely and so their religious practices. In the following essay, we’ll try to comprehend the constitutional validity of the UCC and its impact on the society.

 

The idea of UCC could be traced from the Hindu Code Bill, which was introduced in the constituent assembly on 11th April 1947. The bill aimed towards the unification, codification and modernization of the laws, governing marriage, divorce, inheritance, property rights, and allied topics for Hindus, who forms the great majority of the population of the Indian Republic.³

 

After the 4 years prolonged parliamentary debates, the bill eventually passed the floor test. Akin to it, the UCC also intent to replace the individual personal customs and practices of marriage, divorce, adoption and successions with a common code.⁴

 

However, detractors were sceptical of the policy on the grounds that it will vandalize our indispensable principle of secularism. They certainly believe that it will infringe the Article 25 of the Indian constitution, which reads that ‘…..all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.’⁵

 

To check the credibility of such myths, we should look at the arguments given by the apex court in its various judgments, illuminating the true nature of UCC.

 

In the famous Mohammad Ahmad Khan V/S Shah Bano Begum case, the Supreme Court in its dictum held that Article 44 of the Indian Constitution has remained a ‘dead letter’.⁶

 

Furthermore, it is also stated that “A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies….. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”⁷

 

In the Smt. Sarla Mudgal V/S Union of India case, Justice Kuldip Singh asserted that “It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949. The Governments - which have come and gone - have so far failed to make any effort towards ‘unified personal law for all Indians’.”⁸

 

In John Vallamattom and another V/S Union of India case, the then Chief Justice of India V.N. Khare underscored the relation between Articles 25- 26 and Article 44. He stated that, “two provisions viz. Articles 25 and 44 shows that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution.”⁹

 

The judgment has vividly marked the point that Uniform Civil Code is not infringing the Articles 25 and 26 of fundamental rights, guaranteed by our constitution as matters related to social personal relations and personal laws do not constitute the part of the aforementioned articles. Moreover, it does not possess any sort of threat for minorities.

 

In a most recent Jose Paulo Coutinho V/S Maria LuizaValentina Pereira case, the apex court gave nod to the prevalence of Portuguese Civil Code 1867 in the territory of Goa and said that though it is of foreign origin, an Act of the Indian Parliament has rectified it. Thus, it is no more a foreign law. In addition to it, in its verdict, the court testified the legitimacy of the Uniform Civil Code and said that, “Once we have come to the conclusion that the Civil Code is an Indian law and the domiciles of Goa, for all intent and purposes, are Indian citizens, would it be prudent to hold that the Civil Code, in matters of succession, would apply only in respect to properties situated within the territories of Goa? We do not think so.”¹⁰

 

In Sajjan Singh V/S State of Rajasthan¹¹, the court stressed the fact that the fundamental rights and directive principles formed the basis of the Constitution and that they should therefore be interpreted harmoniously. Although the court maintained that the fundamental rights were not amendable, a new attitude was initiated, namely that these rights should be interpreted in the light of the ideals set by the directive principles.¹²

 

Similarly, in Maneka Gandhi V/S Union of India¹³ case, the Supreme Court held that the preamble and the directive principles represented the contours and parameters of public interest and that state action could limit certain individual rights if this was in the public interest.¹⁴

 

From the above mentioned judgments, delivered by the Supreme Court of India, the fact can be deduced that the implementation of the Uniform Civil Code will not violate any provision of the constitution. Instead, it is a part of our constitution and it is the responsibility of the sate (government) to put strenuous efforts to implement it in the public interest.

 

As the aforementioned facts have made the scenario more conspicuous, we can easily deduce that the preceding governments have bamboozled the masses and subsequently thwart the implantation of UCC. The sole motto of their inaction was to secure the vote bank. However, with their indefatigable act, BJP led NDA government has been persistently trying to bring UCC into force. Unfortunately, due to the impediments generated by the gluttonous and self-centric opposition, the current government (BJP led NDA government) is unable to accomplish the task.

 

During the Constituent Assembly Debates, the need for a uniform civil code has been highlighted. It is said that, “When you want to consolidate a community, you have to take into consideration the benefit which may accrue to the whole community and not to the customs of a part of it. It is not therefore correct to say that such an act is tyranny of the majority. If you will look at the countries in Europe which have a Civil Code, everyone who goes there from any part of the world and every minority, has to submit to the Civil Code. It is not felt to be tyrannical to the minority.”¹⁵

 

At the same time, there’s a need to reckon the eccentric nature of Indian positive secularism simultaneously, where spiritualism has been separated from individual faith. Unlike the western secularism, our model doesn’t advocate the separation of religion from politics. Instead, the state treats all religions equally with respect which means state must make laws that not only acknowledge religious groups but actively pass laws to promote and protect all of them. In concurrence with the aforementioned nature of Indian secularism, Justice R.M. Sahai said that, “…ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fiber. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression. Therefore, a unified code is imperative both for protection of the oppressed and promotion of national unity and solidarity.”¹⁶

 

Indian Constitution is the apex governing body, which does not discriminate between people on the basis of their caste, class, creed, religion, gender and socio-economic and political status. In accordance with the principle of equality, other criminal and civil laws also treat every citizen equally. When it comes to personal laws, they vary from religion to religion. Personal laws are defined as a set of rules and regulation which applies only to a specific group of people based on their caste and religion.

 

What UCC aim towards, is the replacement of such differentiated personal laws by the uniform law. It has nothing to do with the Article 25 and 26 of the constitution as it will neither compel any person to profess any specific religion nor restrict them to perform their sacred practices. It would be spurious to assume that UCC will only take Muslim Personal Law into its ambit. Hindu laws, governed by the Hindu Succession Act of 1956, Muslim Personal Laws, Christian Personal Laws and other personal laws of various social groups will be amalgamated under the UCC.

 

Apart from fostering the unity of a diversified country, it will simultaneously ensure equality and freedom to all citizens irrespective of their social identity(ies). Abrogation of Triple Talaqthrough the legislation of THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT 2019¹⁷, has liberated Muslim women from the such discriminatory laws that have entrusted men with enough powers which they most often use to exploit women.

 

We certainly believe that the fair and judicious implantation of the UCC will help the society to overcome the discriminatory religious practices, which are often exploitative in nature. The contours of UCC should be framed in concurrence with the Directive Principles of the State Policy that will lead to the societal development and will further strengthen the national integration. Moreover, single and integrated governing system will promote transparency in the justice delivery mechanism, concurrently ensuring the greatest benefit to the least advantaged. Unlike the previous governments, the current government (led by BJP) is tenacious enough to bring UCC in force in order to strengthen the unity of a diversified country which is governed by a single and supreme constitution.

The 21st Law Commission Report reads that, “While diversity of Indian culture can and should be celebrated, specific groups, or weaker sections of the society must not be dis-privileged in the process. Resolution of this conflict does not mean abolition of difference. This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.”¹⁸

 

The aphorism has symptomatized that UCC may possess a threat to the diversified nature of our country and will bring every individual under a single umbrella at the cost of their indigenous culture. The most prone to these transformations are minorities, especially the Muslim community. The rumours have been spared by the pseudo intellectuals that if the current government will enforce the UCC, then principles will be completely based on the Hindu traditions and will vandalize the Muslim culture and traditions to a great extent. Moreover, its implantation will also lead to the encroachment of the rights of other minorities and that of the tribal groups to perform their religious practices.

 

Dr. Ambedkar resigned from the Government of India on the issue of the Civil Code and said that, “to leave inequality between class and class, between sex and sex, which is the soul of Hindu Society untouched and to go on passing legislation relating to economic problems, is to make a farce of our Constitution and to build a palace on a dung heap. This is the significance I attached to the Hindu Code.”¹⁹

 

In an interview given to the Organiser, on 23rd August1972, RSS Chief M.S. Golwalkar said that, “…India has always had infinite variety. And yet, for long stretches of time, we were a very strong and united nation. For unity, we need harmony, not uniformity.”²⁰

 

If we minutely look at these apprehensions, we can deduce that the some people believe that UCC will threaten the unity and diversity of India. Instead of strengthening it unity, it will amplify the societal differences. However, if we judiciously analyze the situation in contemporary times, we’ll find that UCC will neither infringe the rights of minorities nor possess a threat to our diversity. UCC will only abrogate the personal laws with the motive to deliver justice and grant equality and freedom to every citizen irrespective of their social identities. It will not hamper the culture and traditions of minorities. The current government has not neglected the concerns, raised by various social groups and individuals. Instead they worked to address such issues and make UCC a flawless policy.

 

We can recapitulate that the implementation of UCC will further foster the unity and integration of our country. It is a paradoxical situation where we claim to be a united country despite having a lot of diversity, but still we do not have a uniform civil code to deliver justice and ensure equality to every citizen. UCC will not possess a threat neither to the indigenous culture of minorities nor to the freedom of religion. At the same time, government should consider the angst of the masses and frame the policy accordingly. In a recent time, the issue of UCC has become a contentious. We certainly believe that the further delay in the implantation of UCC will deteriorate the social condition. In order to ensure justice and equality to every individual, UCC should be implanted as soon as possible.

 

1. The Constitution of India, 1950, Art. 44

 

2. The Quint- https://www.thequint.com/explainers/uniform-civil-code-explained-what-it-is-and-why-it-matters

 

3. Banningan, John A. "The Hindu Code Bill." Far Eastern Survey 21, no. 17 (1952): 173-76. Accessed March 8, 2020.doi: 10.2307/3024109.

 

4. The Hindu- https://www.thehindu.com/news/national/what-is-debate-on-uniform-civil-code-all-about/article24903560.ece

 

5. The Constitution of India, 1950, Art. 25

 

6. SC verdict on Mohammad Ahmad Khan V/S Shah Bano Begum case (24 April 1985)-http://cscs.res.in/dataarchive/textfiles/textfile.2008-07-22.2150472804/file

 

7. Ibid

 

8. SC verdict on Smt. SarlaMudgal V/S Union of India case (10 May 1995)-https://indiankanoon.org/doc/733037/

 

9. SC verdict on John Vallamattom and another V/S Union of India case (21 July 2003)-https://indiankanoon.org/doc/168292393

 

10. SC verdict on Jose Paulo Coutinho V/S Maria LuizaValentina Pereira case (13 September 2019)-https://indiankanoon.org/doc/190351781/

 

11. 30 October 1964- https://indiankanoon.org/doc/1308308/

 

12. Bertus de Villiers (Head) (1992) Directive Principles of State Policy and Fundamental Rights: The Indian Experience, South African Journal on Human Rights, 8:1, 29-49, 

DOI: 10.1080/02587203.1992.11827851

 

13. 25 January 1978- https://indiankanoon.org/doc/1766147/

 

14. Bertus de Villiers (Head) (1992) Directive Principles of State Policy and Fundamental Rights: The Indian Experience, South African Journal on Human Rights, 8:1, 29-49,

DOI: 10.1080/02587203.1992.11827851

 

15. Constituent Assembly Debates (Proceedings). Vol. 7. Tuesday, the 23rd November 1948 (Art. 35)-http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C23111948.html

 

16. SC verdict on Smt. SarlaMudgal V/S Union of India case (10 May 1995)-https://indiankanoon.org/doc/733037/

 

17. The Act published in The Gazette of India on 31st July 2019. - http://egazette.nic.in/WriteReadData/2019/209473.pdf

 

18. Consultation Paper on Reforms of Family Law, Published by Law Commission of India on 31st August 2018

 

19. Reigned from Nehru Cabinet on 27th September 1951

Text of resignation speech- https://ambedkarism.wordpress.com/2011/03/10/dr-ambedkars-resignation-speech/

 

20. The Quint- https://www.thequint.com/voices/opinion/rss-ms-golwalkar-muslims-ucc-bjp-communalism