UNIFORM CIVIL CODE: Inception and situation in India

Written by: Raga Sri Nithya

“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” - Article 44 of the Indian Constitution

Introduction

India is a diverse and a multicultural country with a lot of distinction in ethnicity, race, religion, caste, faith, etc. This plurality is visible in the distinct beliefs, faiths, and practices of people following different religions and customs across India which govern and influence their behaviour in certain activities. India has an established uniform criminal law that applies to all the citizens of India, irrespective of their race, religion, caste, ethnicity, etc. But there are matters such as marriage, divorce, adoption, inheritance, etc., that are civil in nature and are governed by different religions differently. This, differential governance of particular issues has posed a number of problems for the smooth functioning of law and order and also gets in the way of achieving an egalitarian system of Justice. A solution offered to deal with this disparity and difference in adjudging issues governed by Personal laws is the idea of the Uniform Civil Code.

Uniform Civil Code: Its meaning and implications

A Uniform Civil Code (UCC) is the formulation of a single law that would apply uniformly to all Indian citizens irrespective of their religion, in the personal matters such as marriage, divorce, adoption, inheritance, etc. Indian laws, do follow a uniform code in most of the civil matters such as Civil Procedure Court, Evidence Act 1872, Indian Contract Act 1872, Transfer of Property Act 1882, etc. which apply to all the citizens of India in an equal manner. But there are certain laws that deal with the personal matters of people according to their religious belief which is known as the Personal Laws. The idea behind Uniform Civil Code is to replace and revise the system of divided Personal laws, that regulate the related matters of different religious communities.

What is a Personal Law?

Personal laws are the statutes that regulate personal matters such as marriage, divorce, inheritance, maintenance, and succession for Indian citizens.[1] These laws are principally influenced by religious scriptures, norms, customs, and practices of different communities. In ancient times, religion has been the prime regulator and guiding force behind laws of both public and personal aspects of human life. Some examples of the personal laws that are existent in India are The Hindu Code Bill which is a collective notation for different bills grouped together such as The Hindu Marriage Act, 1955, The Hindu Succession Act, 1956, etc., and The Muslim Personal Law (Shariat) Application Act, 1937, etc.

After the disintegration of the Mughal empire, the British slowly took control over the Indian sub-continent and emerged as an imperialistic power. This resulted in the introduction of English law in India. While assuming the authority and task of judicial administration, the British pondered upon the question of the applicability of different laws in different cases. As the legal system was based on different religions, it created a lot of confusion and problems in the administration of justice. Thus, the British created a uniform criminal code which did not have any religious application. But the British were conscious of the fact that the inception of a civil code affecting the religious beliefs of people would cause repercussions and thus did not interfere in the religious matters of the natives and granted autonomy in respect of the personal laws.

Thus, even today, we have separate legislations for different personal laws, according to different religions.

Origin of the idea of a Uniform Civil Code

The origin of the idea of the Uniform Civil Code dates back to the colonial times in India when a report was submitted by the British government in 1835, which stressed for the need of uniformity in the codification of Indian penal law, law relating to contracts, and evidence etc. Also, the commission (the first law commission) that submitted this report, dealt with the discussion regarding the law applicable to non-Muslims and non-Hindus. This was known as the Lex loci Report.

But the second law commission has explicitly expressed its firm view that attempts should not be made to codify the personal laws of Hindus and Mohammadans – because such an attempt “might tend to obstruct rather than to promote the gradual process of improvement in the state of population”. However, due to the increase in the number of legislations that dealt with the personal issues at the end of the British rule, B.N. Rau Committee was constituted to codify the Hindu Law in 1941[2]. Based on the recommendations made by this committee, Hindu Succession Act was passed in the year 1956[3]. Nevertheless, there were separate personal laws for Christians, Muslims, and Parsis.

Position of Uniform Civil Code in Independent India

Dr.B.R. Ambedkar along with many other members of the Constituent assembly was a proponent of the Uniform Civil Code. Even during the Constituent Assembly Debates, Dr. Ambedkar defended the UCC. He said in one of the Constituent Assembly Debates that “There was nothing new about the Uniform Civil Code. There already existed a common civil code in the country except for the areas of marriage and inheritance – which are main targets of the Uniform Civil Code in the Draft Constitution.”[4] He argued that the government’s attempts at social reforms would be hindered due to the absence of UCC. Ambedkar’s vision can also be seen in the demand he made for the Hindu Code Bill, which was mainly intended to provide a civil code in the place of partially amended Hindu Personal law.

Uniform Civil Code comes under article 44 of the Indian Constitution. As the text of the article suggests, it is focused at bringing a Uniform Civil Code across India. When this article came up for debate during the drafting of the Indian Constitution, it triggered a conflict of opinions among different drafters. Dissent came from the many members of the constituent assembly who moved amendments to keep personal laws out of the scope of the Draft article. UCC was supported by many, some members contended that UCC was necessary to maintain the unity of the country. And also, to uphold the Constitution’s secular credentials. At the end of the debate, it was clarified that the UCC would be a Directive Principle[5], and the State is not obligated to bring it into immediate effect, thereby giving space for obtaining the consent of different communities.

But the law commission Consulting paper on Reform of Family Law has said that the Uniform Civil code was “neither necessary nor desirable at this stage”.[6]

Supreme Court’s view on UCC

The Supreme Court, for the first time ever, had commented on the issue to frame a Uniform Civil Code during the Shah Bano[7] case saying that “Common civil code will help the cause of national integration by removing desperate loyalties to laws, which have conflicting ideologies.” It also remarked that it was the duty of the state which was charged with the task of securing a Uniform Civil Code and also that it has the legislative competence to do so.

The Hon’ble court, dealing with the issue of bigamy and the conflict between the personal laws existing in the matters of marriage, in the case of Sarala Mudgal (1995)[8] again highlighted the necessity of the UCC. It emphasized that there would be conflicts due to the different beliefs and practices of the communities due to the different faiths followed unless UCC was enacted for all the citizens of the country.

In the case of John Vallamattom[9](2003), the court said that a common civil code will “help the cause of national integration by removing all contradictions based on ideologies”.

Merits of the UCC

● It would provide equal status to all the citizens of India, irrespective of their religion, race, caste and belief.

● It would remove gender disparities caused due to the following of Personal laws. UCC will bring gender equality by bringing all gender identities at par to each other.

● It would also uphold the Secular credentials of the Indian Constitution, i.e., to treat every religion in an equal manner.

● Every citizen of India is equal before the law, whether civil or criminal. But the Personal laws create a distinction of adjudication basing on religion. Thus, if passed and instituted the UCC would promote national unity and integration.

Demerits of UCC

● Due to the vast diversity of India, it is fairly tough to construct a uniform set of rules.

● Different minority or orthodox communities may consider the enactment of UCC as an encroachment on their religious freedom.

● The codification and enactment of the UCC would also constitute as the interference of the state in personal matters, as it may reduce the scope of Article 25 of the Indian Constitution which provides for the Right to freedom of religion.

Conclusion

The arrangement and execution of UCC by no means seem to be an easy task and is challenging, but it is not unachievable. Also, various effects that the UCC would cause after if it is instituted, such as the situation of the tribal communities that follow their own customs and practices should also be discussed and debated upon, thus leaving no stone unturned. It is the need of the hour, to ponder upon the idea of a UCC to be established in India in order to curb all the inequalities and disparities caused due to the different personal laws.

References:

Books

● M.P. Jain, Outlines of Indian Legal and Constitutional History.

● A.B. Keith, A Constitutional History of India.

● Law Commission of India, a Consultation Paper on Reform of Family Law (31 August 2018).

Websites

● www.constitutionofindia.net

● lawcommissionofindia.nic.in

[1] M.P. Jain, Outlines of Indian Legal and Constitutional History [2] B.N. Rau Committee Report, 1947. [3] Hindu Succession Act, 1956 (Act 30 of 1956). [4] Constituent Assembly Debates, Volume VII, 23rd November 1948. [5] Law Commission of India, Consulting Paper on Reform of Family Law (31 August 2018). [6] Id. [7] Mohd. Ahmed Khan v. Shah Bano Begum [ (1985) SCC 556] [8] Sarala Mudgal v. Union of India (AIR 1995 SC 1531) [9] John Vallamattom & Anr vs Union Of India on 21 July, 2003.