Published On: 5th June, 2024
Abstract
The recent enforcement of the Uniform Civil Code in the state of Uttarakhand, the establishment of the 22nd Law Commission, and the extension of its tenure to August 2024 for deliberating on the issue of UCC and the fact that the ruling party has given implementation of UCC as a part of their manifesto has brought the issue of back in the limelight. The 21st Law Commission Paper named Reforms to Family Law, 2018 which talks comprehensively about whether this UCC is needed or not was the last official document that talked on the issue and the government has been silent on its findings and has not implemented any of its recommendations. Thus in such a scenario, the situation of UCC in India becomes important. This is so because having a state-based UCC is just replacing personal laws with state-based laws thus taking out the actual purpose of the law that it wants to play. In this article, we will try to understand if UCC is feasible in this country, look at the alternatives given by the Law Commission, and at the same time we will understand if ‘Voluntary acceptance’, a really interesting way of enforcing any law can be adopted to implement such a law on the national level.
Introduction
Uniform Civil Code is something that the architect of our Constitution i.e. Dr. B .R. Ambedkar was advocating at the time of the constitutional debates. His point of view was that the role of religion in the personal matters of our citizens should be reduced to make a society that deals with its personal law matters like marriage, adoption, property distribution, divorce, etc. in the same way. This would have fostered national integration and would have brought all the citizens of India under a uniform norm of dealing with personal matters thus filtering out any confusion. But due to strong religious sentiments then it was not made a part of fundamental rights but a part of Directive Principles of State policy under Art 44. There was also talk of making UCC ‘voluntarily acceptable’ which meant that people would decide which law they want to be governed by, the UCC or their own personal laws. But no such thing ever materialized and since then the government of India has many times tried to figure out if the right time has arrived; this struggle to find the right time is what this article will deal with and will also try to give viable solutions for the same.
Meaning and challenges to enforcement:
UCC basically refers to a single body of rules that all people of the nation, regardless of religion, must abide by when it comes to personal concerns like marriage, divorce, adoption, inheritance, and succession. Right now there are constitutional provisions in place that are in support of the implementation of UCC like Art 14 which talks about the equality of law or Art 15 which talks about no discrimination based on caste, creed, race, religion, or place of birth and it also has Art 44 in the Directive Principles of State Policy which says “The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India.”
There are also Judgements like Shah Bano Begum which support the cause of UCC and lament the fact that there is not been much progress in the context and even go to the extent of calling it ‘a dead letter’ to show its distress towards the fact that Art 44 was not delivered upon.
But while all this is true there are significant constitutional challenges as well which come in as hurdles to the implementation of the UCC these are as follows:
Article 25
Article 25 of the Constitution talks about the ‘Freedom of conscience and free profession, practice and propagation of religion.’ And this freedom is something that the lawmakers and the representatives of the various religions think will be violated. Specifically, the word practice is of contention here as the personal laws that the UCC aims to replace are how religion practices its various customs associated with marriage, inheritance, adoption, etc. Therefore maintaining this freedom while implementing a UCC is a big challenge in front of the lawmakers.
Sixth Schedule and Article 371 A to I
The Sixth Schedule of the Constitution gives special protection to certain states specifically in the North Eastern Area of India wherein the amount of cultural diversity and tribal settlements is more. It is said in the Madhu Kishwar and Ors. V. State of Bihar the court had observed that
“In the face of these divisions and visible barricades put up by the sensitive tribal people valuing their customs, traditions, and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist approach or on equality principle, by judicial activism, is a difficult and mind-boggling effort. …it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15, and 21 of the Constitution and each case must be examined when full facts are placed before the Court.”
This gives more autonomy to the tribal customs in the interest of preserving diversity and thus comes up as a challenge to the implementation of the UCC.
At the same time, the 13th Amendment Act 1962 bringing in Art 371 A is also something that comes up as a constitutional roadblock to UCC. This is because the Article doesn’t allow the implementation of any laws related to social or personal matters in the state without the permission of the state assembly. Such exemption is provided to other states in the North East as well via Art 371 A to I and thus implementing a UCC in these areas is not a very easy job.
Why is it UCC needed?
In spite of all these challenges the government is pushing for a UCC and is also getting the support of certain parts of the nation due to the following reasons:
The filtering of Confusion
In India marriage; in Hindu law is a sacrament, in Christian law divorce is highly discouraged once marriage is done, in Islamic Law marriage is a contract, and for a community like the Parsi their law holds registration of marriage of the highest importance. These multiple interpretations lead to multiple ways in which divorce should be taken; similarly, issues of alimony, child custody, and property distribution are governed in their own way as fundamental social institutions in India are defined and perceived in different ways. This situation creates a lot of confusion while adjudicating and also creates an environment wherein the rights of communities like women are not uniform and justice is also different for different people. Even though this is in the interest of diversity, most of the time it increases the adjudicating burden on the courts and at the same time makes these personal matters so complex that if two communities governed by different personal laws ever have to interact it is very hard for those communities to navigate through the proceedings. This creates a well-crafted UCC highly desirable as it would remove all the confusion that is mentioned above by governing everyone by the same law.
Removes the unjust practices in personal laws.
Personal laws being inspired by religion still have some unjust elements in them. Even though the Sarla Mudgal case by the Supreme Court says that “religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression” the Indian legislators have not yet been able to discard these provisions from the law. The example of child marriage being accepted as a reality by most of the personal laws shown via the analysis of the Law Commission is just a small example of how personal laws sustain some unjust practices that are now redundant. To remove this one needs a law that filters out the religious sentiment and takes into consideration the need of the hour, and the welfare of the child, and pragmatically suggests ways so that child marriage does not remain a reality. This will be possible if a UCC is implemented in India, a law that will take the personal laws that came before it into account but at the same time filter out the unjust practices supported by them.
Fosters National Integration
The Lexi Loci report of 1840 in the British Times talked about the uniform codification of criminal laws around the world as they were favorable for the British Rule of the Police state but the same was not done for personal matters as initially, British didn’t understand the complex and diverse social fabric and after the 1857 revolution wanted to keep India in a state in which religious unity will be deficient. Thus after the Independence, Dr. Ambedkar was rather skeptical of sustaining the personal laws as they were not only leading to endangerment of the rights of the women and minorities but also were leading to compartmentalization of India between communities. Diversity was going to be maintained as every religion’s customs and traditions would be different but having separate laws governing personal matters in India is legalizing the cracks and differences that the British wanted to foster among the Indians. This is so because even today if a Hindu person wants to marry a Muslim or Christian there is a lot of societal opposition associated with it. In such a situation having personal laws creates an environment where people of two communities don’t have much to relate to in the context of personal matters the process of National Integration is hindered. On the contrary, if UCC governs people around the nation the law can push the people towards inter-community interactions as done in the issues of Sati Prohibition, Dowry Prevention, and many other issues in India. Moreover, as personal matters of people are governed by the same laws they have a lot to relate to which eventually leads to the fostering of a sense of togetherness leading to National Integration.
Feasibility and the issue of alternatives:
After understanding both sides of the coin in the context of UCC now we can move on to the issue of Feasibility. In this context Dr. B.R. Ambedkar had given a rather fitting answer in the Constituent Assembly; he said
“My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform code of laws for a country so vast as this. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code.”
These words of Ambedkar from the Constitutional Assembly debates are still of high relevance which shows that even though the perception of crime in different communities is different we have a uniform code for all the country. This clears out the dilemma by clearly showing that it is possible to implement UCC with the condition that the Law made is just, it filters out all the previous problems and is not too hinduized as is the fear of many minority communities. If these things are taken into consideration UCC is highly feasible and even desirable. But at the same time, the alternative by the Law Commission wherein the government updates the existing personal laws to filter out unjust practices instead of replacing them with a UCC is something done in the interest of preserving the diversity and religious identity of people. But in my opinion, there is a fundamental problem here. The rationalization of laws is going to eventually go against the religious identities of the people as the provisions that are aimed to be reformed are considered as a part of that identity by the stakeholders of these religions. The fact that these are discriminative is ignored by them in the interest of preserving their own position. Therefore rationalization will lead to the same outcomes as UCC as the definition of rational as far as the law is concerned is based on a general principle of fairness and pragmatism and all the updated laws will lead to the same principle; the only problem with this is that by maintaining the personal laws we will uphold the imaginary walls that are created between the different communities in our country by giving it the support of law and thus an India with a UCC, will be a better place wherein in spite of some revolts all laws will be rationalized and national unity will also be fostered.
Voluntary Acceptance is the way forward:
After understanding the problems with the alternatives that have been put forward for UCC one has to consider other compelling challenges against it. So the point here is a complete replacement of the personal laws with a UCC though feasible has many constitutional, social, and political challenges to it. In such a scenario a middle path is the right way forward. This is something where the concept of Voluntary Acceptance comes into the picture. To quote Ambedkar in this context he says
“It is perfectly possible that the future parliament may make a provision by way of making a beginning 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 […] so that the fear which my friends have expressed here will be altogether nullified.”
He cited the example of the Shariat Act 1934 to show that this method was not novel wherein a person would be bound by the act only if that person wanted to. To show willingness the person would have to go to an officer and sign a declaration and after that, the person and his or her successors will be bound by that law.
This method will work in today’s times more efficiently because the people of India are aware that their personal laws have problems in them and if they are given a more just and pragmatic option they will go for it. We already have a huge part of the population demanding UCC, the whole legal fraternity calls for it and multiple judgments of the apex and other high courts also support it. In such an environment a shift to UCC based on people’s own choice is highly feasible and once the law is successful the rest of the population will also tilt towards UCC. All this is easier said than done because the government would have to come up with a legislative masterpiece so that the law is significantly more just than the personal laws existing in India. Also the mechanism of making the declaration which includes ‘Who can do it?’ and ‘What Constitutes a Family in modern times?’ are some things that have to be cleared beyond any chance of ambiguity. But if done properly it will give a choice to the people as to what they want to be governed by thus striking a balance between the Right to Equality before laws, religious identities, and diversity in India. This is because here Equality means equal treatment to equal people so in this case the people who are ready to be bound by UCC can be classified separately and be governed by that law while others who are not yet ready to make the shift can be governed by their personal laws.
Conclusion
In this analysis of the Uniform Civil Code and how it can be applied in India we have clearly established that UCC is desirable and its implementation is difficult but not impossible. The alternative of updating laws is something that has been in the background for a long time but the fact that it has not materialized over time and also the fact that it leads to the same things as the implementation of UCC with the disadvantage that national unity is somewhere kept vulnerable makes this alternative not the most desirable option. The idea of making it a voluntary law and providing people a choice is not foolproof but one of the only ways all stakeholders are satisfied. Thus if done with astute use of legal creativity and proper analysis of the needs of the Indian society as a whole, it can prove to be an effective way of implementing the UCC while filtering out all the threats of protests and violations of religious rights of people. This paradigm will have its problems but it would be a step in the right direction if timely changes and progressive interpretations of the law are done by our legislators and courts respectively. But as of now, it can be hoped that the 22nd Law Commission which will soon give its report on the topic of UCC will provide more clarity on the same and the government will take those suggestions into account to successfully implement a Uniform Civil Code in India so that there is a reduction of confusion, less involvement of unjust religious activities and fostering of national integration so that inter-community interactions are given a push by the Law as it has done in many cases in India.
Reference(s):
-Law Commission of India Consultation paper of ‘Reforms of Family Law’
-Constituent Assembly debates, Volume VII (here on, CAD, Vol.) 3 December 1948 p. 1979.
– Madhu Kishwar and Ors. V. State of Bihar 1996 AIR 1864
– Sarla Mudgal v. Union of India, (1995) 3 SCC 635
-“Has the Supreme Court set the ball rolling for a Uniform Civil Code?” Hindustan Times.
