Exploring the Uniform Civil Code

Introduction

Recently, the 22nd Law Commission reignited the debate regarding the implementation of a Uniform Civil Code in the country by issuing a notice and seeking the views of religious organizations and the public on the issue of UCC. The concept of a Uniform Civil Code (UCC) has been a subject of intense debate in the Indian socio-legal landscape for decades. It pertains to the idea of formulating a common set of laws governing personal matters, such as marriage, divorce, inheritance, and adoption, irrespective of an individual’s religious affiliation. Proponents argue that a UCC would promote equality, justice, and national integration. However, Article 44 of the Constitution of India provides for a Uniform Civil Code for the entire nation, meaning thereby that a directive has been implemented upon the Parliament to enact a common code, thus it is not a subject of discourse as to whether there should be a UCC rather as to is it a right time to implement Uniform Civil Code¹. The Hon’ble Supreme Court in its jurisprudence has on multiple occasions reminded the Legislature of its Constitutional mandate to implement a common code for the Country.²

Constituent Assembly Debates With Special Reference to UCC:

Mr. Mohamad Ismail Sahib was of the opinion that it is not necessary to regiment the civil law of the people including the personal law. Such regimentation according to him would bring discontent and harmony will be affected. But if people are allowed to follow their own personal law there will be no discontent or dissatisfaction. Every section of the people, being free to follow its own personal law will not really come in conflict with others. At the same time, Mr. Naziruddin Ahmad was of the opinion that UCC would directly infringe upon the Fundamental rights of the citizens and observed that “What the British in 175 years failed to do or was afraid to do, what the Muslims in the course of 500 years refrained from doing, we should not give power to the State to do all at once. I submit, Sir, that we should proceed not in haste but with caution, with experience, with statesmanship and with sympathy”.

Shri K.M Munshi, however, was of the opinion that implementing a Uniform Civil Code across the country is not tyrannical as was envisaged by certain members of the Community and was not violative of Fundamental Rights enshrined under the Constitution. He believed that Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation.The first problem and the most important problem is to produce national unity in this country This attitude of mind perpetuated under the British rule, that personal law is part of religion, has been fostered by the British and by British courts. We must, therefore, outgrow it.

Dr. B.R Ambedkar opposed the amendments and was of the opinion that uniform laws even in Mohammedan laws were not applicable throughout the country. Moreover, he stressed upon the point that the future Parliament may if it desires include a provision that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary

Throughout the discussion on Article 44 of the Constitution, there were certain reservations regarding whether there should be a directive upon the Parliament to implement a Uniform Civil Code. The question that arose in front of the Vice- President of the Drafting Committee was whether the following proviso be added to draft article 35 :

‘Provided that any group, section or community or people shall not be obliged to give up its own personal law in case it has such a law’.”

However, this proposal was negated by the Founding Fathers.

Constitutional Mandate and Pluralistic Society

India, as a democratic and secular nation, is endowed with a diverse cultural, religious, and ethnic fabric. The Constitution, while guaranteeing fundamental rights, also respects personal laws based on religious beliefs. The framers envisioned a pluralistic society where citizens could follow their faiths without compromising their personal practices. Thus, any deliberation on implementing a UCC must be conducted while upholding these constitutional principles. Furthermore, Article 25 of the Constitution of India guarantees the fundamental right to practice one’s own religion. Thus, the ethos of Article 44 can only be implemented by the Parliament if and only if the people of the countries agree to be bound by a common Uniform Civil Code. The concerns regarding a Uniform Civil Code is being reproduced herein under:

Uniformity versus Diversity

Critics of the UCC argue that enforcing a uniform set of civil laws would undermine the diverse cultural and religious identities present in India. They contend that personal laws have evolved over centuries and are deeply ingrained in the socio-cultural milieu of various communities. Stripping individuals of these distinct legal traditions could be seen as an infringement on their right to religious freedom and cultural autonomy.

ADDRESSING GENDER INEQUALITY

One of the primary concerns driving the UCC debate is gender inequality inherent in many personal laws. A uniform code could potentially eliminate discriminatory practices and provide equal rights and protections to women across religious communities.

It is a reality that Indian women are suffering indignities and discrimination because of some customary practices and gender bias writ large in personal laws. Even the personal laws are not tuned to meet the fast-emerging demand of the LGBTQ community relating to marriage and resultant issues which may arise in the future.^[1] One of the major advantages for women with reference to UCC is that conservative laws which are discriminatory against women would be taken care of. After the Shah Bano case was decided by the Hon’ble Supreme Court granting maintenance to women beyond the “iddat” period of 90 days, the same was overturned by the Parliament due to fear of political resentment by the then ruling government.^[2] Implementation of a Uniform Civil Code would ensure that Women are not discriminated against and their discrimination be justified on the basis of religious texts.

For instance, reforms in divorce laws could ensure that women have fair and equitable access to the dissolution of marriage, custody of children, and maintenance. By standardizing laws, the UCC may serve as an instrument of social change, bolstering women’s empowerment and gender justice.

An ideal UCC should include monogamy, equal rights for son and daughter over the inheritance of parental property, and gender and religious neutrality in matters of marriage, divorce, adoption, succession, will, and charity as propounded by K.P Singh, Former DGP of Haryana.

VIEWS OF MUSLIM LEAGUE WITH IMPLEMENTATION OF UCC:

Leading Muslim bodies have come out in opposition to the proposed Uniform Civil Code. Calling the Law Commission’s move to seek suggestions from all stakeholders for a common code “against the spirit of the Constitution” and “contrary to religious freedom enjoyed by all citizens”, the All India Muslim Personal Law Board (AIMPLB) urged the government to think over the proposal again. “It is an attempt at polarization and a diversionary tactic by the government,” the Board said.

“It is unnecessary, impractical and extremely harmful for the country,” AIMPLB spokesperson S.Q.R. Ilyas said. Taking the debate beyond the purview of minorities, Mr. Ilyas drew attention to the laws and customs of the tribal communities that would be endangered by the proposed law. “Articles 371 (A) and 371 (G) of the Constitution provide the tribal communities of the northeast special provisions that restrict the Parliament from enacting laws which supersede their family laws. As far as Muslim law is concerned, the Board reiterates its stand that Muslim personal law is derived from the Quran and Sunnah. Even Muslims are not authorized to make any changes therein. Also, it must be kept in mind that Article 44 of the Constitution is neither mandatory nor justiciable whereas Articles 25 and 26 are justiciable and mandatory,” Mr. Ilyas said.^[1]

The Board, he said, would like to appeal to the government “to respect religious freedom and not try to abridge it through legislation”.

Conclusion

The Uniform Civil Code debate in India encapsulates a myriad of legal, social, and cultural considerations. While proponents argue for uniformity and gender justice, opponents emphasize the preservation of cultural identities and religious freedom. Striking a balance between these conflicting interests is crucial. It requires a nuanced and pragmatic approach, involving stakeholder consultations, gradual reforms, and respect for constitutional values. The pursuit of a Uniform Civil Code should be driven by an unwavering commitment to justice, equality, and social harmony, without undermining the pluralistic essence of Indian society.

The implementation of a UCC in India is not without its complexities and challenges. The legal framework should strike a delicate balance between the need for uniformity and the preservation of cultural diversity. It must respect the sentiments and practices of various communities while ensuring that fundamental rights, particularly those pertaining to gender equality, are upheld.

To effectively introduce a UCC, it is imperative to foster consensus among stakeholders representing different religious and cultural backgrounds. Their perspectives, concerns, and aspirations should be carefully considered through open dialogue and consultation. Such an inclusive approach can help address apprehensions and pave the way for a well-rounded legislation that respects diversity while upholding constitutional values.

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