Uniform Civil Code in India: Legal Processes, Challenges, and Controversies

Uniform Civil Code and Constitutional Perspectives #

The Uniform Civil Code aims to establish a uniform legal framework for all citizens, regardless of their religion. Article 44 in the DPSP, found in Part IV of the Constitution, states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

Comparative Analysis of Indian Laws: Criminal, Civil, and Personal Legal Landscapes #

• Criminal Laws: Criminal laws in India are uniform and applicable equally on all, irrespective of religious beliefs.
• Civil Laws: These are influenced by faith and religious texts, the Uniform Civil Code aims to replace personal laws which come into effect in civil cases have always been implemented according to constitutional norms.
• Personal Laws: Laws that apply to a certain group of people influenced by their religion, caste, faith, and belief. 
  • Hindu and Muslim personal laws come from their old religious texts.
• Hindu Personal Law (Subjects): It includes 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.
• Muslim Personal Law (Subjects): It includes inheritance, wills, succession, legacies, marriage, wakfs, dowry, guardianship, divorce, gifts, and pre-emption taking roots from the Quran.

Objective and Support for the Uniform Civil Code in India #

• It aims to replace individual religious laws with a common set of rules for all citizens in India.
• Recently, Uttarakhand, Assam and Gujarat supported the Uniform Civil Code in their States.

Personal Laws in India: Diversity and the Uniform Civil Code Dilemma #

• Concurrent Jurisdiction: Personal law subjects like marriage, divorce, inheritance come under Concurrent list in Seventh Schedule, alongside the Uniform Civil Code.
• Hindu Personal Laws and Uniform Civil Code: These laws (that apply also to the Sikhs, Jains and Buddhists) have been codified by the Parliament in 1956. This Code Bill has been split into four parts:

1. 1. The Hindu Marriage Act, 1955
   2. The Hindu Succession Act, 1956
   3. The Hindu Minority and Guardianship Act, 1956
   4. The Hindu Adoption and Maintenance Act, 1956

• The Sharia Law of 1937: governs the personal matters of all Indian Muslims in India.
  • It explicitly states that the government won’t interfere in personal disputes. Instead, a religious authority will make a decision based on their understanding of the Quran and Hadith.
• Christians, Parsis, and Jews: These three communities governed under the Indian Succession Act of 1925.
• • Christian women receive a predetermined share based on the presence of children or other relatives.
  • Parsi widows get the same share as their children.

Uniform Civil Code in India: Legal Debates, Perspectives, and Social Impact #

Constituent Assembly Perspectives on Uniform Civil Code: Rights and Unity in India

• The Sub-committee on Fundamental Rights, headed by Sardar Vallabhbhai Patel, decided that securing a uniform civil code was not within the scope of fundamental rights.
• Naziruddin Ahmad (Member) from Bengal said Uniform Civil Code would come in the way of Article 19 of the draft Constitution-now Article 25 (guarantees the right to freedom of religion subject to public order, morality, and health).
• K.M. Munshi (Member) endorsed that Uniform Civil Code will promote the unity of the nation and equality for women.
• B.R. Ambedkar (Chairperson: Drafting Committee) stated that the Article “merely” proposed that the state shall endeavour to secure a Uniform Civil Code, which means it would not impose it on all citizens.

Evolution of Legal Norms: Supreme Court’s Impact on Uniform Civil Code

• Shah Bano Case (1985): The Supreme Court for the first time directed the Parliament to frame a Uniform Civil Code in the year 1985 in the case of Mohammad Ahmed Khan v. Shah Bano Begum, popularly known as the Shah Bano case.
  • However, the government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986, which curtailed the right of a Muslim woman to maintenance under Section 125 of the Code of criminal Procedure.
• Shayara Bano Case (2017): SC had declared the practice of Triple Talaq (talaq-e-biddat) as unconstitutional and void with 3:2 majority.

• Practice of ‘talaq-e-biddat’ cannot be protected under the rights granted to religious denominations under Art. 25(1), 26(b) and 29 of the Constitution.
• The Constitution undoubtedly accords guarantee of faith and belief to every citizen, but every practice of faith could not be held to be an integral part of religion and belief.
• Triple Talaq is not an essential religious practice. 
• If a practice which is arbitrary and not an essential religious practice it will be hit by the exception laid down under Art. 25.

• Uniform Civil Code in Goa: The Supreme Court hailed the State of Goa as a “shining example” where “uniform civil code” is applicable to all, regardless of religion, except while protecting certain limited rights.
  • Goa follows common civil code known as Portuguese Civil Code 1867.
• Other Cases: SC called on the government to implement the Uniform Civil Code in the 1995 Sarla Mudgal judgment, and in the Paulo Coutinho vs Maria Luiza Valentina Pereira case (2019).

A Critical Analysis of Family Law Reform and the Uniform Civil Code Debate

• Law Commission (2018) consultation paper on Reform of Family Law: It stated that Uniform Civil Code “is neither necessary nor desirable at this stage“,
  • The report suggested studying and changing unfair practices, biases, and stereotypes within specific religions and their personal laws.
  • Codifying all the personal laws into a secular law, as doing so would violate the fundamental rights guaranteed by the constitution.
  • Fixing the Marriageable age for Boys and Girls at 18 years, so that they are married as equals.
  • Simplifying the divorce procedure, making adultery a ground for divorce for men and women.
  • Abolishing polygamy by law.

Debating the Uniform Civil Code: Equality, Secularism, and Legal Transformation in India #

• Gender Neutrality and Justice: If a Uniform Civil Code is enacted, all personal laws will cease to operate. It will get away with gender biases in existing laws and ensure gender neutrality and justice.
  • The rights of women are usually limited under patriarchal discourse through religious laws. 
  • Uniform Civil Code will liberate women from patriarchal domination and provide them with the right to equality and liberty.
• Secularism and Common Law: A secular nation needs a common law for all citizens rather than differentiated and distinctive rules based on religious practices.
  • A Uniform Civil Code will separate law from religion, a highly desirable objective in a secular and socialist society
    • It fulfills constitutional mandates under Article 44 of the DPSP.
• National Unity and Integration: A Uniform Civil Code promotes a sense of common citizenship. It  would foster national unity by transcending religious and community divisions.
  • Personal law creates differences and divisions among citizens which hinders the nation’s cohesive fabric.
• Modernisation of Law: India’s legal system will become in line with global standards and contemporary values, reflecting the needs of a modern society.
• Simplification of Laws: Presence of so many laws creates confusion, complexity and inconsistencies in the adjudication of personal matters, at times leading to delayed justice or no justice. 
  • Uniform Civil Code will eliminate this overlapping of laws.
• Communal and Religious Diversities: In India, it demands uniformity in laws.
  • Example: Despite the enactment of the Hindu Code Bill, all Hindus are not governed by the same personal law.
  • Muslim personal law, or the Shariat Act of 1937, doesn’t apply uniformly.
• Against the Rule of Law: Personal laws, rooted in traditional practices, often conflict with evolving social norms, necessitating a comprehensive and inclusive legal framework.
  • The Hindu Marriage Act of 1955 prohibits marriages among close relatives, but they are considered auspicious in the south of India.
  • As per Hindu Succession Act of 1956, wives are not coparceners (a person who shares equally with others in the inheritance of an undivided estate) nor do they have an equal share in inheritance.

Arguments Against UCC: Concerns and Rights in the Uniform Civil Code Debate #

• Respect for Diversity and Pluralism: Personal laws allow different communities to maintain their distinct identities and practices, fostering a multicultural society.
• Diverse Legal Landscape: There is differentiation and distinction in already codified civil and criminal laws. 
  • The idea of ‘one nation, one law‘ doesn’t fit well with the varied personal laws of different communities.
• Constitutional Intent for Legal Pluralism: Constitutional law experts and framers did not intend uniformity in totality. 
  • Example:  Personal laws were placed in Concurrent List (Seventh schedule).
• Against  Fundamental Rights: Article 25 seeks to preserve the freedom to practice and propagate any religion.
• Preserving Religious and Cultural Autonomy:  Personal laws are deeply rooted in religious and cultural traditions, and their preservation was essential to protect minority communities’ distinct identities E.g Tribal groups in North east
• Complexity in Framing New Law: Skeptics argued that formulating a single comprehensive civil law that caters to the diverse needs of a vast country like India is a complex task.
• Potential Social Unrest: It may trigger rivalry among different groups and resentment among religious communities, leading to societal divisions.

Strategic Evolution: Gradual Implementation and Reforms toward a Uniform Civil Code #

• Phased Implementation: The Government could bring separate aspects such as marriage, adoption, succession and maintenance into a Uniform Civil Code in stages and in phases.
• Building Alliances for Reform: They can make common cause and convergence with social reformers rather than religious conservatives.
• Codification of All Personal Laws: Prejudices and stereotypes in every one of them would come to light and can be tested on the benchmarks of fundamental rights of the Constitution.

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