Background

Ahead of the upcoming Assembly elections, Gujarat on October 29 joined the list of BJP-ruled States that have called for implementing the Uniform Civil Code (UCC).

What did the Constituent Assembly say about the UCC?

Article 44 contained in part IV of the Constitution says that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

While there is no draft or model document yet for the UCC, the framers of the Constitution envisioned that it would be a uniform set of laws that would replace the distinct personal laws of each religion with regard to matters like marriage, divorce, adoption, and inheritance.

Part IV of the Constitution outlines the Directive Principles of State Policy, which, while not enforceable or justiciable in a court of law, are fundamental to the country’s governance.

The matter had to be settled by vote; with a majority of 5:4, wherein the sub-committee on fundamental rights headed by Sardar Vallabhbhai Patel decided that securing a UCC was not within the scope of fundamental rights.

Varying views of the Members of Constituent Assembly

View of Naziruddin Ahmad

  • Members of the Assembly took starkly contrasting stances on the UCC. Some also felt that India was too diverse a country for the UCC. Member Naziruddin Ahmad from Bengal argued that certain civil laws in all communities were “inseparably connected with religious beliefs and practices”.
  • He felt the UCC would come in the way of Article 19 of the draft Constitution (now Article 25) which guarantees the right to freedom of religion subject to public order, morality, and health.
  • While he was not against the idea of a uniform civil law, he argued that the time for that had not yet come, adding that the process had to be gradual and not without the consent of the concerned communities.

View of K.M. Munshi

  • Member K.M. Munshi however, rejected the notion that a UCC would be against the freedom of religion as the Constitution allowed the government to make laws covering secular activities related to religious practices if they were intended for social reform.
  • He advocated for the UCC, stating benefits such as promoting the unity of the nation and equality for women. He said that if personal laws of inheritance, succession and so on were seen as a part of religion, then many discriminatory practices of the Hindu personal law against women could not be eliminated.

View of Dr. B.R. Ambedkar

  • Dr. B.R. Ambedkar had more of an ambivalent stance toward the UCC. He felt that while desirable, the UCC should remain “purely voluntary” in the initial stages.
  • He stated that the Article “merely” proposed that the state shall endeavour to secure a UCC, which means it would not impose it on all citizens. The amendments to protect personal laws from the UCC were eventually rejected.

What are the various arguments around the UCC?

It has been argued that while India does have uniformity in most criminal and civil matters like the Criminal Procedure Code, Civil Procedure Code, and the Contract Act, States have made over 100 amendments to the CrPC and IPC, as well as several amendments to civil laws.

Experts thus argue that if there is plurality in already codified civil and criminal laws, how the concept of ‘one nation, one law’ can be applied to diverse personal laws of various communities.

Besides, constitutional law experts argue that perhaps the framers did not intend total uniformity, which is why personal laws were placed in entry 5 of the Concurrent List, with the power to legislate being given to Parliament and State Assemblies.

Looking at the codified personal laws of various communities in India — all Hindus are not governed by a homogenous personal law even after the enactment of the Hindu Code Bill, neither are Muslims and Christians under their personal laws.

Constitutional law scholar Faizan Mustafa notes that while marriages amongst close relatives are prohibited by the Hindu Marriage Act of 1955, they are considered auspicious in the south of India.

Even the Hindu Succession Act of 1956 made several compromises and could not make the daughter a coparcener till 2005. Wives are still not coparceners nor do they have an equal share in inheritance.

Similarly, there is still no uniform applicability when it comes to the Muslim personal law or the Shariat Act that was passed in 1937. For instance, the Shariat Act is not applicable in Jammu and Kashmir and Muslims continue to be governed by customary law which is at variance with the Muslim personal law in the rest of the country. The applicability also varies for certain sects of Muslims. Besides, many tribal groups in the country, regardless of their religion, follow their own customary laws

While the Supreme Court in 2019 hailed Goa as a “shining example” of an Indian State which has a functioning UCC, experts point out that the ground reality in Goa is more complex and that the Code has legal pluralities.

The Goa Civil Code was given by the Portuguese in 1867; it permits a certain form of polygamy for Hindus while the Shariat Act for Muslims has not been extended to Goa with Muslims of the State being governed by Portuguese law as well as Shastric Hindu law. The Code gives certain concessions to Catholics as well. Catholics need not register their marriages and Catholic priests can dissolve marriages performed in church.

What has the Supreme Court said about the UCC?

The Supreme Court in various judgements has called for the implementation of the UCC. In its Mohd. Ahmed Khan vs Shah Bano Begum judgement of 1985, where a divorced Muslim woman demanded maintenance from her former husband, the apex court while deciding whether to give prevalence to the CrPc or the Muslim personal law, called for the implementation of the UCC.

The Court also called on the government to implement the UCC in the 1995 Sarla Mudgal judgement as well as in the Paulo Coutinho vs Maria Luiza Valentina Pereira case (2019).

What has the Law Commission said?

The government in 2016 requested the Law Commission of India to determine how to form a code in the presence of “thousands of personal laws” in the country. In 2018, the Law Commission submitted a 185-page consultation paper on the reform of family law.

The paper stated that a unified nation did not necessarily need “uniformity”, adding that secularism could not contradict the plurality prevalent in the country. In fact, the term “secularism” had meaning only if it assured the expression of any form of difference, the Commission noted.

While saying that a UCC “is neither necessary nor desirable at this stage”, the report recommended that discriminatory practices, prejudices and stereotypes within a particular religion and its personal laws should be studied and amended.

The Commission suggested certain measures in marriage and divorce that should be uniformly accepted in the personal laws of all religions. Some of these amendments include fixing the marriageable age for boys and girls at 18 years so that they are married as equals, making adultery a ground for divorce for men and women and simplifying the divorce procedure. It also called for the abolition of the Hindu Undivided Family (HUF) as a tax-exempted entity.

What is the government’s stance?

While the UCC is a long-time poll promise of the BJP, Union Law Minister Kiren Rijiju said in Parliament this year that the government currently had no plans to set up a panel to implement the UCC and requested the 22nd Law Commission of India to undertake an examination of various issues relating to the same.

The chairperson and members of said Law Commission, which was set up in 2021, have not yet been appointed.


 

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