The democratic experiment in a diverse country like India has been unequivocally pulled off despite a large number of prophets of doom declaimed it to be contrary at the hour of her inception. However, there still persists a host of issues which needs to be urgently attended and judiciously tackled, especially those issues that leads to social churning. One such prominent issue tormenting social scientists’ brain and keen onlooker of the process of nation-building is the issue of the Uniform Civil Code.
The term civil code covers all the laws that are governing the rights which are related to property as well as personal issues such as marriage, divorce, adoption, maintenance, and inheritance. The term “Uniform Civil Code” (UCC) practically connotes in merging all the ‘personal laws’ under a single window of secular laws which deals in those aspects that will be applicable to all Indian citizens irrespective of the community to which they belong. Although the précised contours of such a uniform code is yet to be codified, it must presumably incorporate the most progressive and modern aspects of all the prevailing ‘personal laws’ and discard the regressive ones. Uniform Civil Code is basically an attempt to make the whole picture more systematic, regulated and harmonise diverse cultural practices as well as to address discrimination against vulnerable groups. According to Article 44 of the Directive Principles of State Policy, “State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.”
In India, there is a criminal code which is equally applicable to all the citizens irrespective of caste, religion, sex & domicile. But, there is no such code in respect of divorce and succession. Presently, ‘personal laws’ still govern the citizens. These ‘personal laws’ varies in their philosophy, sources and applicability. This necessitates the need of a Uniform Civil Code but at the same point it also creates a major hindrance in the path of bringing the citizens under one roof of governance.
In this article we will analyse the need of a UCC, obstacles faced and suggestions on how it can be instituted in the first half while in the later part we will look into Law Commission’s view in this context.
Why Uniform Civil Code is needed?
If we look back at the history, we will find that ‘personal laws’ have generated huge protests. An enormous opposition was triggered by the Hindu Code Bill – one of the prominent pieces of social legislation.
The debate on the Uniform Civil Code is concentrated on the argument to swap individual customs & practices of marriage, divorce, adoption and inheritance with a common code. Those in support of the uniform code insist that it will lead to an end of discrimination in religions, while those against the code argues that it will plunder the nation’s religious diversity and infringe the fundamental right of practicing religion enshrined under the Article 25 of Indian Constitution. Actually, they are of the view that introducing UCC shall be against the quintessence of democracy and a secular state is rather an enabler of rights than an inhibitor in sensitive issues of ‘personal laws’ and religions. However, there are two principal reasons behind the necessity of UCC in India.
First, a common legislation is required for all the citizens of a secular republic instead of separate regulations on the basis of religious practices. This was one of the key debatable matters surfaced while drafting the constitution, with fervent arguments from both sides. Among the several favouring members of the Constituent Assembly were the trio of Rajkumari Amrit Kaur, Hansa Mehta and Minoo Masani. Kaur had argued that, “One of the factors that have kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life.”
Later, post-Independence the opposition from the Hindu conservatives to the Hindu Code Bill was overcomed eventually. But, nothing similar was tried by Muslim conservatives. It was decision made mistakenly of not taking on the conservative Muslim opinion by the political leaders due to the trauma of partition.
The second reason that necessitates UCC is the reason of gender justice. Be it Hindu women or Muslim women, they are only given limited rights under religious laws. One such classic example being the practice of triple talaq. It must be noted that Dr. B. R. Ambedkar had fought vehemently in support of Hindu Code Bill because he was of the opinion that it was a great opportunity for empowering the women. Hamid Dalwai – a renowned Muslim social reformer, had also focused on the rights of women as the foremost part of his campaign for a UCC.
What is unfortunate is that the demand for a UCC was framed under the context of communal politics. Several well-meaning people are of the opinion that it is a majoritarianism under the clutch of social reform.These people need to understand rationale behind why even the courts mentioning in their judgements that government needs to strive towards a UCC. The judgement made in the case of Shah Bano is well-known, but same points have been pointed out by the courts in several other crucial judgements.
Apart from the above mentioned principal necessity for a UCC, it will also help in addressing various religious orthodox practices which violates the fundamental rights enshrined in the Constitution. Additionally, it will help in reducing the politics behind vote bank, promote secularism as well as help the society in moving forward and push India towards its ambition of becoming a developed nation.
Implementing a common civil code will not be a hasty process. Appeasing the Muslim community is obviously a huge political challenge. To build the trust, hard work from the part of government is necessary, but what is more crucial is making the cause common among social reformers instead among religious conservatives, which had been the common reason of failure of previous governments.
A strategic option can be following the footprints left behind after the incandescent debates over reforming the Hindu Civil Law back in 1950s. On the contrary of an omnibus approach, it can be more beneficial if the Modi Government insist on implementing separate aspects like marriage, maintenance, adoption and succession into a uniform civil code in stages.
Another handy point for starting a national can be by citing the civil law of Goa which was derived from the 1939 Portuguese Civil Procedure Code. The practice of treating all the communities under a single legislation is continued by the Coastal State even after its incorporation under the Union of India. Moreover, Government can also argue for a UCC citing the need of a comprehensive review of various other laws on the grounds of gender justice.
The underlining principle in a secular republican country should be that religious laws can be overridden by the constitutional laws. Religious orthodox traditions governing several practices are contradictory to the fundamental rights which are guaranteed under the Constitution of India. People those who had argued in the Constituent Assembly in favour of different civil codes, never argued on the issues of principle rather on political expediency. They were of the expectation that the country would definitely move for a UCC within a decade or two.
Present Scenario – “UCC neither necessary nor desirable at present stage”, says Law Commission
The best way out for India in the absence of a common civil code might be by preserving the diversity of personal laws while ensuring that are not contradicting the fundamental rights, said the Law Commission in its consultation paper while recommending “reform of family law”. The consultation paper said “The ministry of law and justice made a reference to the Law Commission of India dated 17 June 2016 to examine matters in relation to the uniform civil code. The issue of uniform civil code is vast, and its potential repercussions, untested in India”. It said that the diversity of Indian culture must be celebrated keeping in mind that weaker sections of the society are do not face any detriment in the process. Additionally it also said, “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”.
It mentioned that existing ‘personal laws’ are disadvantageous for women as it brings in discrimination. While describing child marriage, triple talaq and dowry as “social evils” the commission pronounced that most of them have taken shelter under religious customs. As mentioned in the consultation paper, “To seek their protection under law as religion would be a grave folly. These practices do not conform to the basic tenets of human rights nor are they essential to religion. Even being essential to religion should not be a reason for a practice to continue if it is discriminatory.”
After undertaking extensive research and receiving numerous suggestions on various ways of implementing reforms, it published a consultation paper which dealt with for indispensable issue of marriage & divorce, adoption & maintenance, custody & guardianship, and succession & inheritance.
The report proclaimed, “This consultation paper has been an endeavour to understand, acknowledge and finally suggest potential legislative actions which would address discriminatory provisions under all family laws,“ and “The commission has endeavoured to best protect and preserve the diversity and the plurality that constitute the cultural and social fabric of the nation.“
The commission declared that since there is no consensus on a UCC, the best solution would be “to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights”. The consultation paper demanded codification of all personal laws by way of amendments. Additionally, the commission also declared that the legislature needs to assure equality at first within communities between men & women in contrast with equality among communities.
On the basis of observations on various judicial decree and social researches, the consultation paper in the context of triple talaq proclaimed that the practice does not have sanction of religious edicts and fundamental rights. It added, “The issue of family law reform does not need to be approached as a policy that is against the religious sensibilities of individuals but simply as one promoting harmony between religion and constitutionalism, in a way that no citizen is left disadvantaged on account of their religion and at the same time every citizen’s right to freedom of religion is equally protected”.
The consultation paper highlighted the necessity of protecting the right of practicing & propagatingany religion in a secular democratic country while remembering there are various ‘social evils’ which enjoys refuge as religious traditions. We should also remember that we cannot treat right to equality as an absolute right.