A uniform civil code refers to a set of laws that applies to all citizens of a country, irrespective of their religion, in matters related to personal issues such as marriage, divorce, inheritance, adoption, and maintenance. It aims to provide a common legal framework for all citizens, regardless of their religious affiliations, and promote equality and justice. UCC is listed as Directive Principle of State Policy (DPSP), under the Article-44 of the constitution which says- “The state should try to ensure that everyone in India has the same civil code.” The objective of UCC is to address the existing discrimination against vulnerable groups/ sections of the society and to harmonize diverse cultural practices.
History
Pre Independence-Era:
The report which was submitted in the year 1835 which was known as The British Government’s Report, 1835 in the colonial India, had emphasized the need for the uniformity in the codification of Indian Law with respect to evidence, crimes and contracts. The report specifically suggested that laws of Hindus and Muslims should be kept outside such code.
The first Law Commission gave its report in 1840 which was called as The Lex Loci Report, 1840– is it where the UCC first emerged. So, while the criminal laws were codified accordingly and became the common law for the whole country, the personal laws continued to be governed by separate codes for the different communities.
After India gained independence in 1947, the issue of a uniform civil code continued to be discussed and debated. The framers of the Indian Constitution, led by Dr B.R. Ambedkar, envisioned a uniform civil code as a means to promote gender equality and social justice. However, due to the diverse religious and cultural fabric of the country, the Constitution allowed for the continuation of personal laws for different religious communities.
In the 1950s and 1960s, there were sporadic attempts to introduce a uniform civil code through legislative measures. However, these efforts faced significant resistance and were eventually abandoned due to political and social opposition. (Sharma, 2020)
UCC and Personal Laws
The intention behind the implementation of UCC is to replace the personal laws and to bring out a single codified law which would be applicable to the people of all faiths.
The impact on the personal laws and religions if UCC is enforced-
Hinduism:
The existing Hindu laws like the Hindu Marriage Act [1955], the Hindu Succession Act [1956] would have to be amended if UCC is enforced. For an instance, Section 2(2) of the Hindu Marriage Act says its provisions will not apply to the Scheduled Tribes. Sections 5(5) and 7 of the law state that customary practices will override the provisions. But UCC will not allow all these exceptions.
Sikhs:
The Anand Marriage Act of 1909, cover the marriage laws that govern the Sikhs, but however, there is no provision related to divorce. So, Sikh separations are then governed by the Hindu Marriage Act, but if UCC is enforced, a common law is likely to apply to all communities and the marriages registered under the Anand Act.
Islam:
If the UCC is implemented POLYGAMY will be abolished and the minimum age under the Sharia law would be changed.
Parsi:
Any women who marry someone from another religion will lose all the rights to Parsi rituals and customs, this was stated under the Parsi Marriage and Divorce Act of 1936, this provision would be abolished if UCC is enforced.
UCC and Secularism
If we see at the preamble of the Constitution there is a term secular and the citizens are guaranteed their freedom of religion and being a secular State, it should not interfere in matter of individuals’ religion. Indian secularism imposes a negative obligation on the State to not to identify with any specific religion and treat its citizen with the spirit of “Sarva Dharm Sam bhava” (Srivastav, 2023). This means that here is no religion to be called as ‘State Religion’ or there is no state religion.
In the context of a uniform civil code, proponents argue that it aligns with the principles of secularism by promoting equality and justice for all citizens, regardless of their religious beliefs. They argue that having a common set of laws for all citizens, irrespective of their religious affiliation, is a way to ensure a level playing field and equal treatment under the law.
On the other hand, opponents of a uniform civil code argue that implementing it may infringe upon the religious freedom of minority communities. They contend that personal laws are an integral part of religious practices and should be protected as a matter of cultural identity and individual rights. They argue that secularism means respecting and accommodating the diversity of religious practices and allowing communities to govern their personal matters based on their own traditions and customs.
Purpose of UCC
The main purpose of UCC is to safeguard the vulnerable communities, including Women and religious minorities- as envisaged by Ambedkar, while simultaneously encourage the nationalistic fervour via Unity. Due to the fact that UCC does not make any distinctions based on gender or so, this inspires the hope for the LGBTQ+ community in India, as till now there is no applicable law in India which acknowledge such person’s marriage as Legal.
Judiciary and UCC
In the Shah Bano case[1], the Supreme Court’s decision to grant maintenance to Shah Bano, a Muslim woman, under the provisions of the Code of Criminal Procedure (CrPC) led to discussions about the need for a uniform civil code. (Shambhavi, 2017) Critics argued that the case highlighted the disparities between personal laws based on religious practices, and that a uniform civil code would ensure equality and justice for all citizens. This case sparked renewed discussions on the need for a uniform civil code. The Supreme Court’s decision to grant maintenance to Shah Bano under the provisions of the CrPC led to widespread debates on the inequalities inherent in personal laws and the need for a common set of laws.
In the case of, S.R. Bommai v. Union of India,[2] it was held by the Hon’ble Justice Jeevan Reddy while making an observation that, “the religion is the matter of the individual faith and cannot be mixed with the secular activities and can be regulated by the state by enacting a law.”
Why in news?
14th June 2023:
The 22nd Law Commission of India has decided again to solicit views and ideas of the public at large and recognized religious organizations about the Uniform Civil Code.
In 2018, the Law Commission(21st), released a Consultation Paper on ‘Reform of Family Law’, in which it opined that “formulation of a Uniform Civil Code (UCC) is neither necessary nor desirable at this stage”. Since this consultation paper is now more than three years old, the present Law Commission headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi has decided to invite the views and suggestions of stakeholders afresh.
Benefits of UCC
- Gender Equality: Implementing a UCC can help promote gender equality by ensuring that all citizens, regardless of their religious background, are governed by the same laws. This can help eliminate discriminatory practices and provide equal rights and opportunities for all individuals.
- Secularism: A UCC can reinforce the principle of secularism by separating personal laws from state affairs. It can ensure that the legal system treats everyone equally, irrespective of their religious beliefs, and prevents any religious group from having preferential treatment under the law.
- Legal Clarity and Consistency: A UCC can provide a clear and consistent legal framework for all citizens, reducing confusion and conflicts that may arise from different personal laws based on religious customs. It can establish a common legal code that is applicable to all, simplifying legal processes and ensuring fairness and justice.
- Modernization: Personal laws based on religious customs may sometimes be outdated or incompatible with contemporary societal values. Implementing a UCC can help modernize and adapt the legal system to current realities, addressing issues such as marriage, divorce, inheritance, and other civil matters in a more inclusive and equitable manner.
- Social Cohesion: A UCC can promote social cohesion by fostering a sense of unity and shared identity among citizens, irrespective of their religious backgrounds. It can help bridge divides and create a more inclusive and harmonious society.
Suggestions and Conclusion
- UCC should be adopted as a measure to promote gender equality, and for the implementation of UCC both religious and personal laws should be examined and the best features from all religions as well as from the personal laws of other countries should be collected and implemented, but it should be based on broad consultations.
- Draft of Uniform Civil Code should be prepared by keeping in view the best interests of all religions in mind and to ensure uniformity. A committee of eminent jurists should be established to prepare the draft on UCC.
- For effective implementation of UCC, it is preferable if the initiative comes from the religious groups and Indian society.
Therefore, the debate surrounding a uniform civil code and secularism in India is complex and multifaceted. Striking a balance between ensuring equality and justice for all citizens and respecting the religious freedom and cultural diversity of the country is a challenge that requires careful consideration and sensitivity. Ultimately, the decision to adopt a uniform civil code and its compatibility with secularism is a matter for the legislative and judicial bodies to determine.
[1] Mohd. Ahmed Khan v. Shah Bano, AIR 1985 SC 945
[2] (1994) 3 SCC 1
Author: Akula Supriya
Juris Centre 