India being a secular country, guarantees the freedom of religion as a fundamental right under the Constitution of India. The Uniform Civil Code forms the structural backbone of secularism. The enactment and implementation of the Uniform Civil Code is very necessary to achieve the status of developed individual autonomy and this enactment and implementation greatly depends upon the ‘cultural structure’ of the society. Every society is normally and broadly divided into two sections, the minorities, and the majorities. The minority section of Indian society does not have a proper and stable cultural structure as compared to the people belonging to the majority section. This stability in the cultural structure leads to a stable, enhanced sense of identity which becomes the benchmark of ‘good’ in any society. However, according to the logic of freedom of choice, individuals have the liberty to select those aspects from their cultural structure which they consider to be ‘good’ while constructing a sense of their total identity.[1] The Uniform Civil Code means a uniform personal law on such matters as marriage, divorce, maintenance, adoption, guardianship, and succession, regardless of one’s religion—as it exists in most countries and indeed even in Goa, a legacy of Portuguese.[2] The UCC had been incorporated in many countries like Rome in the form of Jus Civile, in France as The Napolean Code, and in the USA.[3] The same has been a hot topic in India since 1840. India is a secular country and therefore secularism is an integral part of the Indian Constitution. Secularism is a strong belief or faith which conveys that religion should not influence any state, educational institution, or other organization. Though we talk about secularism but instances of gender inequality and injustice based on religion, have been prevalent since time immemorial. To curb these differences, there is a need for the UCC in India. There have been consistent efforts to implement the code in the country yet there have been various challenges as well due to which its implementation has remained unsuccessful.
HISTORY AND ORIGIN
The Uniform Civil Code has its root in the time, India was ruled by the English People and was an eminent part of the British Empire. It was in the year 1840 when the British Government, through the Lex Loci report codified the laws relating to crimes, evidence, and contracts but intentionally maintained their silence on the personal laws of various religious communities of the country. The main intention behind it was to create unrest among the citizens of the country based on religion and religious matters which in turn helped them to formulate their divide-and-rule policy. This famous Divide and Rule policy of the British Government and the East India Company had been used by them to separate the land of undivided India into two major nations which were Hindustan and Pakistan. Moreover, at that time the concepts of marriage, divorce, succession, adoption, and maintenance were largely governed by the religious scriptures and customs. These religious laws of various religious communities were also applied by the panchayats to resolve the various civil disputes of that time. The Hindus including the Sikhs, Jains, and Buddhists were governed by the Hindu religious scriptures, and the Muslims were governed by their Sharia laws. The governance of these civil concepts like marriage, adoption and divorce etc, led to differences among the people thereby affecting the universal concepts of Gender Equality and Justice and thereby creating a very complex situation. This was the first time when the need for a uniform civil code was felt but couldn’t be acted upon. As time passed, women of different religions and people of lower caste became the main victims of these unwanted religious differences and therefore people started outraging and demanded for equality and justice. This in turn led to the enactment of certain legislations like the Indian Succession Act of 1865 which governed the women’s economic security and the Indian Marriage Act of 1864 which governed the marriages of Christian women. Later, the reform movements led by Ishwar Chandra Vidyasagar also led to the enactment of various legislations like the Hindu Widow Remarriage Act and the Hindu Inheritance (Removal of Disabilities) Act. The majority of these enacted legislations were only for the Hindus and improved the status of Hindu women in the society but the Muslim women continued as the victims and faced the inequalities. However, the astonishing fact is that till today the women of the Muslim communities are facing these inequalities and are getting penalized.
Post- Independence the situation was found to be changing, as in the year 1946 the Constituent Assembly was set up to frame our Constitution in Independent India, which consisted of two types of members: one who was a proponent to reform society by adopting the Uniform Civil Code, such as Dr B. R. Ambedkar, and second those who were essentially Muslim representatives who advocate personal laws.[4] Following the discussion, only one particular clause was introduced to the Constitution which was by Article 44 of Part IV of the Indian Constitution.
FAMOUS INCIDENTS DEMONSTRATING THE DEMAND FOR UCC
The importance of UCC is demonstrated through the landmark case of:
Sarla Mudgal vs Union of India (1995)[5]
This case also has an impact on highlighting the need for the code. In this instance, the issue was whether a Hindu spouse who had been wed according to Hindu law could also accept Islam and thereby perform a second marriage. The court ruled that the Hindu marriage solemnized by Hindu law can only be annulled on any of the grounds listed in the Hindu Marriage Act of 1955. A second marriage that is solemnized after conversion to Islam would be illegal under section 494 of the Indian Penal Code (IPC)[6] since converting to Islam and getting married again would not be enough to annul the Hindu marriage under the legislation.
UNIFORM CIVIL CODE: IS IT A NEED OF THIS HOUR?
The need for the Uniform Civil Code in the country is very clear from its history. If the Indian government wants to curb unnecessary religious differences and want to implement the universal concepts of Gender Equality and Justice, then the UCC must be enacted and implemented. Moreover, we all are aware of a famous English proverb, “Rome was not built in one day”, the situation of UCC in India is somehow the same. The enactment and implementation of UCC in this religiously diverse country is not possible overnight but to achieve that big goal, the starting is very necessary and should be done as soon as possible. The current need for the code is also largely felt as different personal laws promote communalism and this leads to discrimination at two levels – between people of different religions and between sexes.[7] However, experts also believe that the proper implementation of the code will also enhance the feeling of unity among the citizens of the state.
UNIFORM CIVIL CODE – RELATED PROBLEMS
Various challenges are acting as a barrier to the enactment, adoption, and implementation of the Uniform Civil Code in the country. These problems are majorly related to the minority communities of the state and may create a situation of political unrest if neglected or not given importance. Moreover, neglecting these problems would also be unfair on the part of the minorities and would also lead to failure in achieving the goal of gender equality and justice.
These problems mainly include the following: –
Constitution-related issues:
The enactment and implementation of UCC in India lead to various contradictions with the constitutional provisions. The implementation of UCC shall also contradict the fundamental right of religious freedom guaranteed under Article 25 (Freedom of conscience and free profession, practice, and propagation of religion)[8] and Article 26 (b) of the Indian Constitution[9]. The ideal of secularism cannot be achieved unless the right to religion and certain conventions based on religion give a place of preference and permanence to the directive contained in Article 44 of the Constitution. Therefore, it is the utmost need of the present times to achieve uniformity in social relations, which would be the foundation to build a unified, integrated, and strongest democracy in the world. Then comes the glorious suggestion of the Supreme Court to enact a uniform civil code to strengthen the feeling of oneness among all religious sects to preserve the unity and integrity of India.[10]
Societal and Political issues:
It is challenging to put into practice a fundamental platform of practices for every religion because different religions have diverse religious faiths based on those religions’ basic practices. Moreover, this initiative of the parliament would be just considered as the replication of the Western model of legislation by attempting to execute this agenda. However, another biggest problem is that most people don’t know what UCC stands for, and this ignorance is caused by a variety of factors, including a lack of knowledge, propagation of disinformation, irrational religious ideas, and so on.
POTENTIAL REMEDIES FOR THE PROBLEMS WITH UCC
The above-mentioned problems cannot be ignored. Therefore, the following solutions can be availed to solve these problems and will also help both the supporters and non-supporters of the UCC to come to an intermediate point.
The Indian Government and the non-supporters of UCC must come together and cooperate to develop and upgrade the laws relating to marriage, adoption, maintenance, divorce, etc. The government must take steps to educate people about the need and benefits of UCC in society. Government officials must also act responsibly toward solving the problems of the people that are associated with UCC by conducting regular small-scale meetings at the district levels. Another great way to address the issue of UCC Bill implementation is by creating a high-level committee. This group in association with the government of India will run educational campaigns and identify the issue’s underlying causes.
EXISTENCE OF A SIMILAR CODE IN THE COUNTRY
There is only one state in India, Goa, where conventional family rules are governed by the Uniform Civil Code. However, Goa was only freed from Portuguese dominion in 1961. India attained independence in 1947. Family-related problems were covered by the Portuguese Civil Code when it was still in effect during Portuguese control, and it was not changed.
The existing code in Goa had the following features which somehow improved the cultural structure of the society there-
- It permits the equitable distribution of assets and income among offspring, regardless of gender, as well as between the husband and wife.
- Every birth, marriage, and death should be required to be recorded. There are numerous provisions for divorce.
- Polygamy is prohibited for Muslims whose marriages were legally recognized in Goa.
- Each spouse is entitled to one-half of the property in the event of a divorce, and each family member will receive an equal share in the event of a death.
However, the GCC has certain drawbacks as well and it is not a proper uniform code. For example, if the wife of a Hindu man fails to deliver a child by the age of 25, or she fails to give birth to a male child by the age of 30 then the men have the right to practice bigamy and this is mentioned in the Codes of usages and Customs of Gentile Hindus of Goa, otherwise no one has right to perform bigamy in Goa.[11]
CONCLUSION
The Directive Principles of State Policy are contained in Part IV of the Indian Constitution, which was added by the constitution’s drafters because they believed that the UCC should not have been implemented at the time the document was being written but also because they believed that it would always be necessary. This inclusion of the provision was precisely under, Article 44 of the Indian Constitution which confers that, “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”[12]. Moreover, in general, the Directive Principles of State Policy are the directions to the Indian state to implement them in due course, except where there was a time frame of ten years mentioned[13]. However, the tragedy is that Article 44 isn’t being welcomed with open arms by a secular nation like India. With the non-implementation of Article 44 of the constitution, articles 14 to 18 are being violated which provides for the Right of equality and prohibition of discrimination on the grounds of sex and religion. Many personal laws relating to marriage, inheritance, guardianship, divorce, adoption, and property relations in all communities are unjust[14].
Therefore, Uniform Civil Code remains to be a contentious and complex issue in India. Although it seeks to advance equality and harmonize personal laws among religious communities its execution has run into various issues. The procedure is further complicated by India’s heterogeneous cultural, religious, and social landscape. It is crucial to approach the subject delicately, understanding the significance of finding an equilibrium between advancing equality and protecting cultural variety.
[1] Akhilendra Pratap Singh, Utility of Uniform Civil Code, 59:2, Journal of the Indian Law Institute,178, 180 (2017) https://www.jstor.org/stable/10.2307/26826599.
[2] Leila Seth, A Uniform Civil Code: towards gender justice, 31 India International Centre Quarterly, SPRING 40, 46 (2005), https://www.jstor.org/stable/23005979 .
[3] Saman, Uniform Civil Code In Foreign Countries: Its Evaluation From The Perspective Of India, Legal Services India E-Journal (Jul. 07, 2023, 6:15 PM), Uniform Civil Code In Foreign Countries: Its Evaluation From The Perspective Of India (legalserviceindia.com).
[4] Saman, Uniform Civil Code In Foreign Countries: Its Evaluation From The Perspective Of India, Legal Services India E-Journal (Jul. 07, 2023, 6:15 PM), Uniform Civil Code In Foreign Countries: Its Evaluation From The Perspective Of India (legalserviceindia.com)
[5] Sarla Mudgal v. Union of India, AIR 1995 SCC 1531
[6] Indian Penal Code, 1850, § 494, Acts of Parliament, 1850 (India).
[7] Mayank Chandra, Uniform Civil Code: India’s Requirement, Legal Services India E-Journal (Jul. 06, 2023, 6:55 PM), Uniform Civil Code � India’s Requirement (legalserviceindia.com).
[8] INDIA CONST. art. 25
[9] INDIA CONST. art. 26, cl.b.
[10] Shabbeer Ahmed and Shabeer Ahmed, Uniform Civil Code (Article 44 Of the Constitution) A Dead Letter, 67 The Indian Journal of Political Science 545, 550 (2006), https://www.jstor.org/stable/41856241 .
[11] Mayank Chandra, Uniform Civil Code: India’s Requirement, Legal Services India E-Journal (Jul. 06, 2023, 6:55 PM), Uniform Civil Code � India’s Requirement (legalserviceindia.com).
[12] INDIA CONST. art. 44
[13] Leila Seth, A Uniform Civil Code: towards gender justice, 31 India International Centre Quarterly, SPRING 40, 42 (2005), https://www.jstor.org/stable/23005979 .
[14] Shabbeer Ahmed and Shabeer Ahmed, Uniform Civil Code (Article 44 Of the Constitution) A Dead Letter, 67 The Indian Journal of Political Science 545, 549 (2006), https://www.jstor.org/stable/41856241.
Author: Rohan Dutta
Juris Centre 