Uniform Civil Code: Constitutional Mandate or Political Agenda

Introduction

As per the current legal system followed by India, Indian laws can be broadly classified into two types based on their applicability

• Uniform Laws – Laws such as the Bharatiya Nyaya Sanhita, which are equally applicable to all, irrespective of the individual’s beliefs
• Personal Laws – Laws which are not uniformly applicable to all, such as the Hindu Succession Act ^[1]

As a nation with a vast population and a diverse range of personal belief systems, it is essential to accommodate the people’s diverse beliefs. As such, the need for such personal laws arises. India is a country that prides itself on the concept of “Unity in Diversity.” It has to cater to the needs of all its people.^[2]

But given that secularism is an embedded principle within our constitution, the existence of such personal laws goes against the core notion on which our nation was built^[3]. Article 44 of the Constitution also directs the state towards a future of uniform state laws, and there have been several instances, such as the Sarla Mudgal Case, wherein even the Supreme Court has discussed the need for a Uniform Civil Code.^[4]

As such, this article will try to delve into the overall need for a uniform civil code and future implications of the same, given the current social standing of the world

Post-Independent India 

The idea of a Uniform Civil Code was brought up for the first time in post-independent India during the constituent assembly debates^[5]. Multiple members of the constituent assembly believed that the implementation of a uniform civil code would be a means by which India could portray its ideas of unity and equality.^[6] But the idea of a uniform civil code had several limitations as well. During the post-independence era existed a pluralistic society i.e, the country was divided into several religious groups, each of which was governed by its laws concerning matters such as marriage, divorce, succession, etc, and therefore, there existed a valid concern in certain members’ minds that the immediate implementation of a uniform civil code could lead to various religious conflicts within the nation^[7] and as such a compromise was made wherein the need for a uniform civil code was added as a a directive principal of state policy under Article 44 of the constitution herein giving the power to the future leader to bring up a uniform civil code as and when they see fit.^[8]

Hindu Code Bills & Family Law Reforms 

In the 1950’s the parliament had decided to take up a bold step in codifying the preexisting Hindu personal laws and enact a Hindu code which governs all matters in relation to Hindu personal law^[9]. This was intended to set a precedent for other communities and ultimately leading to the creation of a uniform civil code. These laws tried to cover various issues such as gender equality and individual rights, but when the bill was passed in parliament, it faced severe backlash, stating that the act went against age-old Hindu practice and hence threatened the social stability of the nation. The debates were extremely polarized, and there were several protests that led to the resignation of Dr. B.R Ambadkar as the law minister. In the end, instead of passing the bill as such, it was broken up into four parts, i.e, Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and the Hindu Adoption and Maintenance Act. This shows that India was not ready for a uniform civil code, and the decision to keep its implementation for the future was a wise decision

Special Marriage Act (1954) 

The Special Marriage Act is a landmark legislation as it provides a secular and civil alternative for people who don’t want to get married within the religious structure. This act also promotes interfaith marriages and provides them with an avenue to marry under a common secular framework. The Special Marriage Act, unlike personal laws, is applicable to all the people of the nation equally, and sets a uniform legal procedure for marriage, divorce, and other matters of similar nature. This act acted as a precedent to the implementation of a uniform civil code, as it acts as a limited version of the same. But the existence of the special marriage also brings up a dual legal system in India, one of which is secular and voluntary, while the other is religious and mandatory, depending on the community. This dual system is very confusing from a layman’s perspective and, as such, may lead to various confusions when it comes to their applicability

Shah Bano Case

This case is regarded to be a watershed moment that emphasises the need for a uniform civil code in India. In basic Facts of the case, a muslim woman wanted to claim maintenance from her ex-husband under section 125 of the CrPC, which is a secular act and thus applies to all people of the nation.^[10] The husband argued that according to the muslim personal laws, he only owed maintenance for the iddat period, which is a short period after the divorce, and the Supreme Court gave a ruling in favour of the petitioner, i.e, Shah Bano. This judgement became a huge political issue and was widely debated. In fact, the husband was also defended by the All India Muslim Board, stating that according to Sharia law, the woman was denied the right to alimony and that the ruling given by the Supreme Court was a direct attack on muslim law. And due to such a huge uproar and the up and upcoming elections, the Muslim Women (Protection of rights of divorce)Act^[11] was passed, where it was stated that section 125 of the CrPC does not apply to muslim women. This is considered to be a black day for uniform civil code in India, wherein constitutional ideas of secularism and equality were thrown out the window to cater to a specific community. This case acted as a well-needed wake-up call on the need for a uniform civil code in India

Sarla Mandal Case 

This case is the prime example of conflicting personal laws and the urgent need for a uniform civil code. This case dealt with the issue of whether a married Hindu man converted to Islam, without ending his first marriage, will his second marriage under Islamic laws come under the offense of Bigamy, or is it acceptable under muslim law. The court held that it will fall under the ambit of Bigamy and is punishable under section 494 of the India Penal Code, as conversion does not automatically nullify a marriage under Hindu law. The court also emphasized the need for a uniform civil code, stating that more than 80% are governed by codified personal laws, and the absence of a uniform civil code led to such confusion and legal loopholes hole which compromise the ideal of gender equality and secularism. and also talked about the prolonged delay in the implementation of Article 44 of the Constitution

Continued Judicial and Legislative Discussions (2000s)  

In the early 2000s, there were several instances where the judiciary talked about the need for a uniform civil code in cases such as John Vallamottom v. Union of India. The court reiterated the fact the necessity of a uniform civil code in order to preserve the principles of equity and secularism. There was also the establishment of the Twenty-First Law Commission, which assessed the feasibility and desirability of a uniform civil code after taking note of divergent public opinion^[12]. Surprisingly, the law commission report stated that a uniform civil code is neither a necessity nor desirable, stating that as a nation with people of various religious and cultural backgrounds, there is a high possibility that the interests of various parties are left unheard. Each religion has its own perspective on different matters example would be the concept of marriage which is interpreted differently by different religions. Hindu laws, on one hand, consider marriage as a sacrament, while Muslim laws believe it to be a contract, and Christian law is at a middle ground, which believes in both. It is a very complex task to balance all these ideologies and make legislation that caters to the ideas of all the religions, especially in India, given the diversity in the beliefs of the people. The Law Commission instead recommends that targeted reforms be made to personal laws to remove discrimination and inequalities

Shayra Bano Case

 This case, also known as the triple talaq case, is considered to be a serious step towards gender equality and is considered to be a turning point in the conversation of personal laws and the uniform civil code^[13]. This case dealt with the Muslim practice of triple talaq as a means of divorce, stating that it is unconstitutional and violative of fundamental rights to equality, non-discrimination, and dignity. And the 5-judge constitutional bench decided that the practice of instant triple talaq was unconstitutional, with a 3:2 majority. It was stated that talaq-e-biddat was not an essential religious practice and was arbitrary by nature. The court also made observations ranging beyond Muslim and stating that all personal laws must be reformed to ensure equality to women. The court also reiterated the constitutional directive of Article 44 and the need for a uniform civil code for gender equality and consistency in personal laws. In response to the judgement, the Muslim Women (Protection of Rights on Marriage) Act was amended to criminalize triple talaq and provide safeguards to Muslim women

State-Level initiatives

 The state legislature of Uttarakhand has taken up steps toward implementation of its own uniform civil code^[14], stating that Article 44 does not restrict such reforms to the union government. Such action could set a precedent for other states toward implementation of their own uniform civil code and can be used as a test case for the future nationwide implementation of a common code of a similar model.^[15]

Goa is also another state that has its own uniform civil code, also known as the Goan Civil Code, which traces back its origin to the Portuguese Civil Code of 1867. Several key features are part of the Goan civil code, such as equal property rights and joint ownership marriage, which would be a great initiative if  taken up by the indian legislature

Conclusion

As a nation with the ideals of secularism and equality as the backbone of its legal structure, some form of uniform civil code will inevitably come into force in India. There are several personal laws which are innate, arbitrary. A really good example of which would be section 15 of the Hindu Succession Act, wherein when a woman dies intestate, the rights to her property first go to her in-laws even before her own parent, while the same is not the case when it comes to the male counterpart This issue has been addressed in the case of Omprakash v. Radhachar wherein the court has shown judical restrain and stated that they do not have the power or authority to make laws and such matter are to be delt with by the legislature. It is to be remembered that, however much the judiciary states the need for a uniform civil code, the ultimate power to act on the advice of the judiciary lies with the legislature. It is also to be remembered that the question that the constituent assembly raised has still not been answered: ‘Is India ready for a uniform civil code?’ The question is up for the legislature to decide. In my view, the real question is not whether India is ready to implement a Uniform Civil Code, but whether we, as a nation, have truly embraced the fundamental constitutional ideals of equality and secularism. In an era where the world increasingly values openness and inclusion, India must recognize and adapt to the evolving nature of society. The adoption of a Uniform Civil Code would reflect our commitment to these principles and demonstrate our readiness to advance with the times.

References

[1] Flavia Agnes, ‘Law and Gender Inequality: The Politics of Women’s Rights in India’ (Oxford University Press 1999).

[2] India is a country that prides itself on the concept of “Unity in Diversity.” It has to cater to the needs of all its people.

[3] M P Jain, ‘Indian Constitutional Law’ (8th edn, LexisNexis 2018) 1065.

[4] Sarla Mudgal v. Union of India (1995) 3 SCC 635 (SC)

[5] Constituent Assembly Debates, Vol VII (23 November 1948) 540.

[6] Nivedita Menon, ‘Personal Laws and the Constitution: A Comparative Perspective’ (2000) 35 Economic and Political Weekly 13, 14–15.

[7] Constituent Assembly Debates, Vol VII (23 November 1948) 547–48.

[8] Tahir Mahmood, ‘Uniform Civil Code: Fictions and Facts’ (2002) 37 Economic and Political Weekly 3039, 3040.

[9] Parashar v. Parashar [1961] AIR 1252 (SC).

[10] Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 (SC).

[11] The Muslim Women (Protection of Rights on Divorce) Act 1986.

[12] 21st Law Commission of India, ‘Consultation Paper on Reform of Family Law’ (Law Commission of India, Report No. 270, August 2018).

[13] Shayara Bano v. Union of India (2017) 9 SCC 1 (SC).

[14] Sandeep Phukan, ‘Explained: Uttarakhand’s Uniform Civil Code’ The Hindu (Dehradun, 8 February 2024).

[15] Ziya Us Salam, ‘Uttarakhand’s UCC: Blueprint for India or Political Tool?’ Frontline (9 February 2024).