India is a diverse country with different religions, cultures, castes, and languages. The core ethos of India has been unity, peace, and the synthesis of religion. Different classes of people with different beliefs are governed by their respective personal laws. The various communities follow different codes or laws, such as the Muslim Personal Law (Shariat) Application Act of 1937, the Hindu Guardianship Act of 1956, the Hindu Succession Act of 1956, the Parsi Marriage and Divorce Act of 1936, and so on. These codes cover the matters of marriage, divorce, maintenance, succession, inheritance, guardianship, child custody, etc. India is a pluralistic society; there are many different sects that are governed by their respective traditions and customs and do not follow any particular codified law. There have been many controversies, violence, social suppression, economic exploitation, religious revolts, and injustices due to different personal laws being followed by different people.
India is a secular country, as mentioned in the Preamble, which means separation of religion from state and equality for all irrespective of their religion, community, caste, or sex, as observed in the case of Indira Nehru Gandhi v. Raj Narain[1], which held that secularism means that the state shall have no religion of its own and every person should be equally treated, entitled to their freedom of conscience, and have the right to freely practise, profess, and propagate any religion. On the other hand, the Constitution also states that there is a uniform civil code throughout the territory of India, which means a single common law that is applicable to all citizens of India.
What is Secularism?
The word secularism was added to the Preamble of the Constitution by the 42nd Amendment Act, 1976, which came into effect on January 3, 1977. The term stated here means a republic where all religions are equal. Independent India’s idea of Secularism means the state shall permit freedom of practise of any religion, the state shall not associate with any religion, and the state shall honour all faiths with equality. In Kesavananda Bharti v. State of Kerala[2], the Supreme Court held that secularism is part of the basic structure of the Constitution. Further, it was held that elements that constitute the basic structure cannot be amended by the Parliament.
The Indian Constitution grants several fundamental rights to the people, as mentioned under Part III of the constitution with respect to secularism, that provide a wide range of freedom to all the different communities to manage their own affairs peacefully. The Articles providing such rights are as follows:
- Article 14 ensures that every person is equal before the law. People are entitled to equal protection within the territory of India i.e., equal subjugation to the laws of the land.
- Article 15 states that a citizen of India should not be discriminated against on the basis of caste, religion, race, sex, or birthplace.
- Article 16 ensures equal employment and appointment for all irrespective of their differences in religion, caste, sex, etc.
- Article 19 guarantees six major fundamental rights to the citizens of India, along with some reasonable restrictions. These include freedom of speech and expression, forming associations, peaceful assembly without arms, moving freely in the country, and carrying out a profession of one’s choice.
- Article 25 ensures that every person has freedom of conscience and the right to freely profess, practise, and propagate any religion as per their own choice. The state should not possess or favour a religion of its own.
- Article 26 guarantees freedom to manage religious affairs and maintain institutions subject to public order, morality, and health. Every religion, community or any section thereof shall have the right for the above mentioned.
- Article 27 states that no one shall pay taxes for the promotion or maintenance of any particular religion or religious denomination.
- Article 28 provides freedom as to attendance at religious instruction or religious worship in certain educational institutions.
The provisions mentioned in the constitution have often created chaos in the nation, and several communities have misused their rights where the judiciary has stepped forward and exercised its duty of interpreting the laws on secularism. In S. R. Bommai v. Union of India[3], the Supreme Court cleared the doubt over the word ‘secularism’ in the Constitution. The court held that the secular nature of a society does not make it an atheist society but rather makes it more heterogeneous. Secularism provides equal status to all religions without any discrimination.
Later, in Aruna Roy v. Union of India[4], the Supreme Court of India held that the essence of secularism lies in equal treatment and non-discrimination of people by the state on the basis of religious differences.
The Judiciary has reiterated several times that when professing, practising, or propagating religion, all secular activities must be excluded that are repugnant to public order, morality, and health and are abhorrent to basic human rights and dignity.
What is Uniform Civil Code?
The term ‘Uniform Civil Code’ is mentioned in Article 44 under Part IV of the Indian Constitution. Article 44 explicitly states that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. These principles are guiding principles for the state’s policymaking, though they are not legally enforceable.
A Uniform Civil Code means that all sections of society will be treated equally. A national Civil Code uniformly applicable to all, irrespective of their religion, caste, tribe, etc., that would deal with matters of marriage, divorce, maintenance, adoption, and others.
Dr. B. R. Ambedkar and Jawaharlal Nehru proposed the idea of a uniform civil code during the post-colonial era, but they were strongly opposed by religious fundamentalists. Even people didn’t have appropriate knowledge and awareness for the same.
Goa is the only state to have had the Portuguese Civil Code in the form of a common code since the 19th century. The Uniform Civil Code in Goa permits equal distribution of income and wealth among husband and wife and their offspring. Every birth, marriage, and death must be compulsorily registered. Polygamy is completely prohibited, and there are many provisions with respect to divorce that ensure the rights of women.
The judiciary has played a commendable role in promoting the importance and need for the Uniform Civil Code in India. In Mohammed Ahmed Khan v. Shah Bano[5], the Supreme Court held that Muslim women have the right to maintenance as per Section 125 of the Code of Criminal Procedure, 1973. The then Chief Justice of India, Y.V. Chandrachud, observed that “a common civil code will help the cause of national integration by removing the disparate loyalties to law that have conflicting ideologies.”
Later, in Sarla Mudgal & Others v. Union of India[6], the Supreme Court urged the government to secure a Uniform Civil Code based on the Hindu code of laws to protect the sufferers and achieve national solidarity.
Merits of Uniform Civil Code
The advantages of having a Uniform Civil Code in India are as follows:
- The common code will bring solidarity and integration to India, which has diverse cultures, religions, castes, and tribes. A sense of shared identity and national spirit will be evoked.
- The Uniform Civil Code will reduce the vote bank politics that has been prevalent in India for years, where politicians and parties attract votes on the basis of different religions, castes, tribes, etc.
- The code does not oppose the idea of secularism; rather, it will promote secularism in the real sense because each person will be treated as equal irrespective of their differences. The people will be governed as one as per the laws of the land.
- Personal laws are loopholes because several of them violate the basic human rights of many. The judicial system is still running on old systems and value-based personal laws, which are confusing and time-consuming.
- Personal laws are misogynistic in nature, and age-old cultures have suppressed and mistreated women till date. A Uniform Civil Code will improve the conditions of women by giving them more rights and promoting gender parity.
- The code will help in social growth, which has been lagging behind due to religious and caste-based politics for decades. India will be progressive and achieve the goal of becoming a developed nation soon.
- Change has been the law of nature. The code can be used as an instrument for creating social change in order to provide justice to all.
- Overlapping provisions of law can be avoided, and the Uniform Civil Code will bring a more coherent legal system. It will provide more efficient administration of laws by the judiciary.
Challenges to Uniform Civil Code
The possible challenges to having a Uniform Civil Code in India are as follows:
- The practical implementation of the Uniform Civil Code is a complex task because of the rich diversity of India’s religions, cultures, and traditions. The multicultural essence must be safeguarded.
- The Constitution of India provides the provision of freedom of religion, and the Uniform Civil Code would encroach on the fundamental rights of different religions, castes, or tribes in India.
- People belonging to different communities who have true faith or beliefs are rigid and not willing to accept such a common code over their personal laws, which have been practised for years. It is considered a threat to their rights and interests.
- The absence of political will and consensus among legislative, judicial, and civil society bodies has been a hindrance to the Uniform Civil Code.
- Misinformation circulated about the code and a lack of awareness or knowledge among people, especially among minorities, are key factors in opposition to the Uniform Civil Code.
Suggestions for Implementing Uniform Civil Code
In order to implement a Uniform Civil Code in India, an optimistic, broadminded outlook is a must in order to understand the basic essence and rationale behind the uniform civil code. Education, sensitization, awareness campaigns, and programmes need to be focused upon for better outreach to the public.
A committee of eminent jurists must draft the manuscript for Uniform Civil Code while keeping in view the best interests of all the religions or communities of India. The code must take care of the sentiments of all and should treat the communities with uniformity and equality. The code must be put forward via a brick-by-brick approach, i.e., it should be implemented in parts based on particular subject matter within a time frame.
It is a sensitive and divisive issue; therefore, the ideas and opinions of the different religious groups and people must be welcomed and included by having a constructive dialogue in forming the Uniform Civil Code. Any particular religion or community must not be favoured or discriminated in any way; rather, common principles should be incorporated. The minorities must be ensured equality by safeguarding their rights and interests.
Implementation of the Uniform Civil Code requires strong political will. A conducive environment is needed because political parties often use religion and identity politics to further their agendas. The government must ensure that the implementation of the code is not used as a tool for political gain. The government must invest in the necessary resources required to carry out the massive task of drafting and implementing the Uniform Civil Code.
Conclusion
India, a diverse country at a developing stage, must divorce law from religion in order to progress and become a developed nation. Indian citizens belong to different religions and denominations and follow respective family and property laws. A common code would remove the loopholes in the laws due to conflicting ideologies and personal laws in India.
A major goal is treating each human with dignity, which personal laws have failed to do so. Some communities are considered dangers to the nation’s unity, and on the other hand, such communities are under a fear of identity crises. India is celebrating its 77th year of Independence in 2023, when a uniform civil code is the need of the hour to resolve the complex and outrageous issues of the nation.
The implementation of the Uniform Civil Code must be a well-thought-out inclusive process that upholds the principles of justice, equality, and good conscience and involves strengthening and consolidating Indian nationhood.
[1] 1975 AIR 1590
[2] AIR 1973 SC 1461
[3] AIR 1994 SC 1918
[4] AIR 2002 SC 3176
[5] AIR 1985 SC 945
[6] AIR 1995 SC 1531
Author: Prashita Yadav
Juris Centre 