“Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.” — Reinhold Niebuhr
The Constitution makers of our country formulated the groundwork for our country, in the form of the lengthiest book called the Constitution, which is the foundation of our entire democratic system, as it lays down the basic principles of the government system, the Fundamental Rights in Part III, the Directive Principles of State Policy in Part IV that are non-enforceable, yet indispensable and are ideal principles which the state must invoke with time, as per the requirements of the future generations[1].
One of the most controversial such DPSP is Article 44, the application of the Uniform Civil Code, which states-
“The State shall endeavor to secure for the citizens’ uniform civil code throughout the territory of India”
The application of Article 44 is very controversial, as the basic principle behind its formulation is the codification of all Personal Laws, into one set of Common Laws, which will be applicable to all the persons and communities irrespective of their caste, creed, gender, sex, religion, etc. in order to bring uniformity among the residents of the country and solve the multiple discrepancies and disputes that had arisen because of differences in their Personal Laws. Personal Laws have been in existence since time immemorial, as it is a culmination of various practices, customs, beliefs, and the preachings of the past saints and religious leaders, and have been followed ever since they were established, as basically, they have gained full trust and belief of all its followers religiously. Important decisions regarding a person’s personal life such as Marriage, Divorce, Adoption, Maintenance, and Inheritance, were initially governed by the customs and norms established by their Personal Boards, but as a result, this somehow brought in inequality among the citizens, so the Article 44 is a positive, yet prudential approach for the state to bring in uniformity and create common laws for the similar people and for the nation as a whole.
Secularism, as a principle, is highly enshrined in the spirits of our Constitution, as the Constitution makers were amply aware of the multiple ethnicities and religions present in the country like Hinduism, Sikhism, Muslim, Christianity, Buddhism, Jainism, and much more, so they inculcated the intent of this principle in the Preamble of the Consitution, which is like the invasion into the minds of the Constitution makers. Secularism is also enshrined in Article 25[2] of our Constitution, which declares India to be a Secular nation, thereby meaning that the people are free to follow or not follow the religion of their choice. Nobody in the country shall be discriminated against on grounds of religion and the State shall not intervene in terms of religion. The Court in the case of Harvinder Kaur v. Harmandar Singh[3] also compared incorporating constitutional law into personal laws to “putting a bull in some kind of a china shop.” Some scholars, however, have challenged this viewpoint. Religion, as a concept is extremely essential, as it lays down the foundation of our country’s politics, culture, and society, so it is crucial to deal with it prudently.
The notion of the Uniform Civil Code is fundamentally linked to the issue of modern secularism in India. The difficulty now is that there are variances and conflicts between personal laws. There is no consistency, which brought about major conflicts in the usual functioning of the country. There have also been cases where personal laws disallowed women’s rights or did not even grant them rights. The Uniform Civil Code can be implemented to address these deficiencies.
Underscoring the History and Evolution of UCC in India-
India is a heterogeneous country, with people of various religions and communities present, leading to various differences in terms of gender discrimination, communal differences, and so on. In India, people have the most faith in their religion, all the decisions are taken keeping religion in consideration. Significantly, it is clear that the people of India have a strong belief in their individual religious ideas, practices, or customs, which are always a component of their faith. As a country, India is male-dominant, wherein men of the family are given much importance whilst taking all the crucial decisions of the family, making it a pluralistic nation. Females are being controlled by the extravagant patriarchy spread across their offices, families, etc. As a result of which, the Personal Laws are merely derived from the practices that were acceptable to men in society, as they were highly affected by the male ideology in society. Women, on the other hand, had always been looked down upon and were discriminated against by religion, men, and Personal Laws as well. Certain customary practices were highly opposed by the women of the society but were ignored due to the support of the men in society. The interconnection of law and religion precludes the Indian state from altering religious personal laws, which keeps denying Indian women equality under the law.
For example- practices of polygamy, denial of property in cases of inheritance, practices like the Sati Pratha, instant Talaq, etc. all such practices were highly against the basic principles of human life, but were imposed on women by men of the society to oppress them.
Uniform Civil Code, as a concept did not imply that a single specific Personal Law would be imposed on the other communities or the denial of customs of one community over the other, but it comprises the creation of a systematic framework eradicating the unfairness inherent within these ancient institutions, notably to women and children, and the substitution of all present personal laws through a rational system, as defined by Prof. Subba Rao[4].
The Constitution makers wanted the implementation of UCC in the country, but it was the complex structure of the country comprising of diverse people, that made its application far more difficult. The question for its application has been discussed since the Independence, but yet lacks the implementation and is in controversy ever since. For the first time, this matter was discussed in the year 1948, by the first Prime Minister of India, Pt. Jawahar Lal Nehru was in favor of its application in the country, but he dropped the idea, as he believed that the country was not then ready for such a law, especially the Muslim community.
The fundamental issue is that if the framers of the Constitution intended for a uniform civil code to be implemented in India, they should not have included it in Article 44 of the Constitution as a component of the Directive Principles of State Policy. As the name implies, the Directive Principles of State Policy found in Part IV (Art. 36 – 51) are simple directions to the State. They are not obligatory and therefore not enforceable by Court. These are just positive duties imposed on the state that will aid in effective governance. The decision to include it in the Directive Principles of State Policy, Article 35 of the draft Resolution, and Article 44 of the final Constitution was based on Nehru and Gandhi’s pledge that passage of the UCC would be delayed, though it would remain a desire of the State. This compromise, however, was strongly opposed, with critics claiming that religion-based personal regulations cause division within the society by separating various elements of life. Consequently, it can be deduced from the above conditions that, because the uniform civil code was indeed a politically driven sensitive matter, the fundamental architects of the Indian Constitution made an admirable decision by incorporating it into Article 44 as a guiding principle of the state.
The triangular relationship between Secularism, Personal Laws, and Uniform Civil Code-
The Indian Constitution’s Preamble resolves to establish a “Secular” Democratic Republic. This signifies that there is not a state religion, or that the state doesn’t really run on the basis of any one religion therefore shall not make distinctions because of religion. Articles 25 and 26 of the Indian Constitution, as guaranteed fundamental rights, protect religious freedom and the right to administer religious matters. Simultaneously, Article 44, which isn’t really enforceable in a court of law, as it is a DPSP, specifies the State shall form any law which will be an effort to ensure that India has a uniform civil code.
A uniform civil code is a compilation of common civil rules or personal laws that apply to all Indian citizens, regardless of faith. Marriage, adoption, divorce, succession, and maintenance are all examples of personal laws. The term secular was added to the preamble by the 42nd amendment to e the Constitution. Secular means that no state has the authority to discriminate against any faith. People have the right to religious freedom and the freedom to govern religious affairs under Articles 25 and 26 of the Indian Constitution. They are included in the list of fundamental rights. Because the personal laws of each religious practice comprise way different provisions from one another, their unification will end up causing not only resentment, but also enmity in the public, so the Uniform Civil Code will need to include such laws that strike an appropriate equilibrium between the protection of fundamental rights and the religious principles of the diverse religions which exist in the country. Marriage, divorce, and maintenance are examples of secular issues that can be subject to regulation.
In S.R. Bommai v. Union of India[5], it was concluded in the words of Justice Jeevan Reddy, that religion is a subject to personal beliefs that cannot be intermingled into secular activities and can be governed by the state through the introduction of laws.
Judicial exertion towards the implementation of UCC-
As per the Black’s Law Dictionary[6], “a statute is uniform in its operation when it operates equally upon all persons who are brought within the relations and circumstances provided for; when all persons under the same conditions and in the same circumstances are treated alike, and classification is reasonable and naturally inherent in the subject- matter.” The Judiciary of our country is essentially very supportive and is actively working towards the striking notion of applicability of the idea of UCC in the nation.
The leading case of Mohd Ahmed Khan v. Shah Bano Begum[7], is a clear instance of the ideology of the Supreme Court towards the idea of UCC in the nation. In this case, Shah Bano was denied maintenance from her husband, so she approached the Court and the then Justice Y V Chandrachud, clarified that Section 125 CrPC[8], will be applicable to Muslim women also and the Muslim husband is also liable to maintain his divorced wife beyond the Iddat period. It was in this, the Supreme Court observed that Article 44 had merely become a dead letter, as its implementation had only remained a matter of discussion, far from being actually implemented.
The Special Marriage Act[9] of 1954 is another instance where the Judiciary has tried to formulate uniform laws by permitting marriages outside the arena of any Personal Law. This type of marriage act allows for the legal marriage of two people of different sexes, regardless of faith. This legislation prevailed within Indians, allowing them to marry outside of their own law.
The cases wherein need for UCC implementation was felt in various cases like the case of Sarla Mudgal v. Union of India[10], The court ruled that “the second marriage would be void if it was solemnised before the first marriage was declared null and void by court or by cancellation of marriage by decree of divorce as per the provisions of the Hindu Marriage Act,1955”. In the famous case of John Vallamottom v. Union of India[11], the three-judge bench highlighted in the national press for the need of effective and quick application and enactment of Article 44 in the country.
Goa is the only state in the country which has successfully implemented the Uniform Civil Code effectively, as it sets out a clear example of the beneficial nature of its enactment. In Goa, all the persons, irrespective of the fact they belong to different religions or communities, are subject to the same laws in respect of marriage,divorce, and succession. Marriage in Goa is a contract signed by two people of opposite sexes to live together and form a lawful family that is registered with the civil registrar’s office and are subject to laws and regulations laid down.
Tracking the Conflict between the Right To Equality and Freedom of Religion-
The Indian Citizens have been granted certain privileges amd safeguards by the forefathers in the Part III of our Constitution, in the form of lawfully recognized rights as the Fundamental Rights, which are needed to respect and protect the dignity of every citizen.These rights are required for the systematic functioning of the country and safeguard the citizens against any unlawful activity, yet they are not absolute in nature and are subject to certain restrictions and limitations ghat can be imposed by the supreme power in certain situations wherever needed. Similarly, Article 25, does guarantees freedom of religion, conscience, and to profess, practice and propagate their religion to all persons in India, yet it has also been clearly specified that it is subject to other provisions, including the Right To Equality guaranteed by the Articles 14 and 15. Although if freedom of religion includes the right to be controlled by personal law, it doesn’t involve the right to deny equality and personal liberty to a subset of individuals who are ruled by certain personal law[12]. Hence, it is clear that sovereign legislature can intervene in the Personal laws.
As a result, if it is determined that there are religious customs and practises that are not a fundamental component of faith but are just a secular activity related to religion, the Legislature would indeed be competent to adopt a uniform legislation governing those secular activities by enacting Article 44 was held in the Nikhil Soni v. Union of India[13] case. And, it was made evident, that teh enactment of UCC will not be ultra vires of any Constitutional provision, but falls fully in its purview.
Concluding remarks and Overall analysis of UCC- Uniform Civil Code is the need of the hour. The Uniform Civil Code is about more than just gender equality; it pertains to the way a country handles its own diversity. In India, religious freedom coexists with some other rights such as equality and non-discrimination. Rather than intervening arbitrarily or abandoning cultures totally, India’s liberal pluralism seeks a compromise. It has proven to be more willing to change majority behaviours while protecting vulnerable members of minority communities. The One-Nation One-Rule is believed to bring about a positive outlook towards the society as a whole, as it will limit gender discrimination and reduce gender parity, by bringing in laws that are gender neutral and does not favour a specific gender, thereby eradictaing the inferior treatment provided to women of various religions across the nation. It will support nation integration, as people of different communities will come together and all the present differences that exists in their personal realm will be eradicated, hence promoting equality of all. More importantly, people are unaware of the actual practical applicability of this legislation. People must recognise that faith and laws are not the same thing. The reason is that the Constitution permits people to practise their religion, which will remain even if a standard rule is enacted. The standard code will in no way limit their freedom to practise or express their religion. Hence, the author of this article believes that the government should start the enforcement of UCC, as was even concluded in several cases urging for the necessity of this law.
[1] Constitution of India 1950, art. 37
[2] Constitution of India 1950, art. 25
[3] Harvinder Kaur v. Harmandar Singh ChoudhryAIR 1984 Delhi 66
[4] G. C. V. Subbarao, Uniform Civil Code: Reality or a Tantalizing Illusion (1987)11 M. L. J, p, 1
[5] 1994 AIR 1918
[6] Legal dictionary in the United States
[7]1985 SCR (3) 844.
[8]S. 125. Order for maintenance of wives, children, and parents:
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself
[9] The Special Marriage Act, 1955
[10] Sarla Mudgal v. Union of India, (1995)3 SCC 635
[11] AIR 2003 SC 2903
[12] S. P. Sathe, ‘Uniform Civil Code: Implications of Supreme Court Intervention’ (1995) 30 Economic and Political Weekly 2165.
[13] Nikhil Soni v. Union of India AIR (2006) Raj 7414
Author: Aanandita Aneja
Juris Centre 