Uniform Civil Code is a uniformly structured legislature that will govern all the aspects of personal laws and civil law of all the citizens, irrespective of their religion. The embarkment of the Uniform Civil Code can be traced back to the British era when laws regarding crimes, evidence, and contracts were uninformed. British legislation cannot make Hindu or Muslim religions, so they cannot make Hindu or Mohammedan laws[1].
In 1941, increased dealing of personal law by legislature forced the codification of Hindu law to an extent by B N Rau Committee, but still, Mohammedan law remains uncodified; if religious freedom is not hindered when Hindu law is legislated, will codification impede the freedom in regards of Mohammedan law; dealt ahead to determine the compatibility of Uniform Civil Code and India under the following matters:
- Relation of personal laws and religious freedom.
- Relation of Uniform Civil Code and objectives of Constitution.
- Relation between Uniform Civil Code and federal government.
research and analysis
Uniform Civil Code, through an example
The manner in which the state of Goa implements the Uniform Civil Code. However, it might not be the best example of a Uniform Civil Code due to certain shortcomings in its legislation. It can be taken up as an approach to comprehending the meaning of the Uniform Civil Code.
Uniform provisions of Goa to the extent of marriage, irrespective of religion, mandate marriage registration under the civil authority and ask for a two-stage process- first and second signature.
The law, even in the case of a Muslim, does not recognize bigamy or polygamy, but there are certain cases where the 2nd marriage of a Hindu man is recognized, which is not the case for other communities; this can be considered as a drawback in the implementation of the Code.
According to the law, in the event of a divorce, irrespective of religion, the woman is entitled to half of the common assets including those inherited by her husband. The parents are required to distribute at least half of the property with their daughters.
Along with the provisions mentioned above, there is also a provision that makes the registration of every birth and death compulsory, besides the registration of marriage.
Uniform Civil Code will legislate not only in the matters of marriage but also in subject matters of succession, inheritance, marriage, divorce, adoption, guardianship, etc., and will cease discrimination.
Uniform Civil Code and Constitution
The Constitution of Secular India emphasizes equality as the path to justice, as mentioned before. So, it is essential to consider whether or not the constitution invites Uniform Civil Code in India.
Secularism is a term that is frequently misunderstood, which makes it a barrier to Uniform Civil Code. However, if the true meaning of secularism is understood, Uniform Civil Code becomes the perfect vehicle for introducing secularism. Secularism, when explained in Article 14, empowers equality before the law, which means that citizens should not be treated differently according to their religion but should be governed by laws independent of religious discourses.
Equality before the law and equal protection of the law[2], and prohibiting discrimination on the grounds of religion, race, caste, sex, or place of birth are mentioned in the Constitution. Uniform Civil Code, religion-neutral inheritance, and succession laws will provide the grounds for equal treatment of all and reduce the incidents of special treatment to a person in different situations. Subsequently, helping in the enrichment of Article 14 and prohibiting discrimination on various grounds will reinforce Article 15.
It has been argued numerous times that while Articles 25 through Article 28 of the Indian Constitution guarantee religious freedom to Indian citizens and permit religious organizations to conduct their affairs, Article 44 of the Constitution requires the Indian state to apply directive principles and common law for all Indian citizens when establishing governmental policies.
While drafting the Constitution, Dr. B. R. Ambedkar stated that while Uniform Civil Code is desirable, it should remain voluntary for the time being. As a result, Article 35 of the draft Constitution was added as Article 44 of the Directive Principles of the State Policy in Part IV of the Constitution of India.
In the case of John Vallamattom and Ors. v. Union of India[3], Supreme Court said that in such a civilized society, there is no necessary connection between personal laws and religious freedom. Matters like divorce, marriage, etc., cannot be brought under the ambit of Article 25 and Article 26 of the constitution.
It must be understood that India’s constitution does provide religious freedom but up to an extent. Laws in India drive their authority from the constitution, which does not allow discrimination on the grounds of religion, ‘Assam chief minister Himanta Biswa Sarma recently said the Uniform Civil Code will provide justice and relief to Muslim women as “no woman likes to share her husband with another woman.”’
Topics such as the Uniform Civil Code are included in the Concurrent List (Entry No. 5) of Schedule VII of the Constitution, under which both the Parliament and state legislatures have the authority to enact laws. As a result, the state legislature may propose changes to the personal laws passed by Parliament. Still, it is not permitted to extend this authority to include passing a Uniform Civil Code for a specific state.
Goa is the only state to practice Uniform Civil Code in India, and the state can do so because, since the period of the Portuguese, the Goa Civil Code has been in effect. The Portuguese Civil Code of 1867 served as the basis for this code. By virtue of Section 5(1) of the Goa, Daman, and Diu Administration Act, 1962, the new Indian Administration decreed that all laws in effect in Goa, Daman, and Diu or any portion thereof immediately before the appointed day shall continue to be in effect therein until amended or repealed by a competent legislature or other competent authority. As a result, the Portuguese Civil Code in Goa persisted in India, which was updated in 1966.
authorities’ take on Uniform Civil Code
21st Law Commission’s take on Uniform Civil Code
In accordance with the complexity of the matter, Union Law Minister Kiren Rijiju referred Uniform Civil Code’s theory examination to Law Commission in 2016. 21st Law Commission was led by Justice B.S. Chauhan. In response, Law Commission released a consultation paper, “Reform of Family Law.”
This paper argues that Uniform Civil Code is neither desirable nor necessary. In terms of family law, the Commission emphasized eradicating prejudice against women inside communities rather than pursuing equality between groups. The Law Commission stated that by doing this, it sought to preserve diversity, which makes up the country’s culture, to the greatest extent possible.
The Law Commission also stated in reference to the variety of personal laws in India: “While the diversity of Indian culture can and should be recognized, particular groups, or weaker sectors of the community, must not be dis-privileged in the process.” The resolution of this dispute does not mean that differences are no longer valid. Therefore, rather than creating a unified civil code, which is neither essential nor desirable at this time, this commission has dealt with legislation that is discriminatory.
Since there was no consensus on a uniform civil code, the commission believed that the best course of action might be to retain the diversity of personal laws while also making sure that they did not conflict with the fundamental rights protected by the Indian Constitution. However, the 21st Law Commission’s tenure came to an end in August 2018.
Supreme Court’s take on Uniform Civil Code
Enacting a Uniform Civil Code has been stressed frequently by the Indian judicial system. Mentioned below are certain cases where Supreme Court has talked about the same.
In the case of Minerva Mills[4], according to the Supreme Court’s Constitution Bench, one of the core elements of the Constitution is the balance between fundamental rights and directive principles.
In the case of Daniel Latifi Case,[5]the Muslim Women’s Act,1986 was contested on the grounds that it infringed on both the right to life under Article 21 and the rights to equality under Articles 14 and 15 of the constitution; both Christian and Hindu women get maintenance from their husband until they remarry then Muslim women should also be treated equally. Supreme Court has to harmonize Muslim Women’s Act with Section 125 CrPC.
In the Shah Bano Begum [6]case, former Chief Justice Y.V. Chandrachud stated that Parliament should outline a uniform civil code since it is a tool that promotes equality before the law and national peace by abolishing contradictory allegiances to laws with opposing ideologies and directing the government to establish a UCC.
In the Sarla Mudgal [7]case, Supreme Court stated that 80 percent of the population has already been brought under the codified personal law, so there is no justification for the abeyance of introducing the Uniform Civil Code to legislate all the citizens of the country.
Although being under the purview of Parliament, the Supreme Court is still considering numerous public interest litigations addressing important Uniform Civil Code issues. The government has received notice from the top court about the necessity for uniform legislation for all citizens, regardless of their religious beliefs, on specific topics of divorce, maintenance, alimony, adoption, guardianship, succession, and inheritance.
In March 2022, the Supreme Court ordered the national government to reply to public interest litigation which was about the implementation of religion-neutral inheritance and succession laws, called uniform civil code.
Conclusion
To keep up with the advancement of time, laws must be modified. To claim that the laws established by the ancient sages should be applied to modern India would be anachronistic. Since the society that laws were initially intended for has evolved significantly, so should the laws. In addition to being a matter of justice, Uniform Civil Code will enhance the country’s ability to accept its diverse population. In today’s society, Uniform Civil Code will also help the various genders coexist peacefully and achieve equality in the nation.
Regarding property rights and inheritance, each state has its own rules. States with a large Christian population in the northeast, like Nagaland and Mizoram, enact laws that are discriminatory in nature since they are based on their customs rather than their faith. Religious personal laws are, by their very nature, misogynistic. By permitting outdated religious laws to continue to regulate the family, we are dooming all Indian women to oppression and mistreatment.
Intriguingly, Parliament has kept the division between the two statutes and maintained it. While it has codified a significant portion of Hindu law, Muslim law has largely remained uncodified. The demand for secularisation, modernization, and rationalization of Muslim law was equal to or greater than that of Hindu law, which has not been fulfilled, helping bring in discrimination amongst and within the communities.
We have created an entirely new judicial system based on values from ages past by enabling personal laws. The Indian courts already have a substantial amount of work. “No country’s judiciary had a load similar to that of India where each judge disposed of 40-50 cases in a day,” said the Honorable Union Minister for Law & Justice, Mr. Kiren Rijiju.
The only way to guarantee that all Indians are treated equally is through Uniform Civil Code. The issue with the implementation of the Uniform Civil Code is that its contents have not been made clear, which has led minorities to assume it is a method of forcing majoritarian ideas on them. It is essential for people to realize that the concepts of laws and religion are distinct. Since the Indian Constitution guarantees that everyone has the freedom to practice and declare their religion, this freedom will remain unaffected by the implementation of the Uniform Civil Code. It cannot even be altered by either Parliament or any other legislature.
Constitutional provisions that protect religious freedom also make clear that the guarantee of that freedom does not interfere with the state’s ability to legislate for social welfare and reform. Many Acts passed with regard to Hindu law have been upheld as constitutional by the courts on the ground of religious freedom.
It is also abundantly evident that a Uniform Civil Code does not violate the Indian Constitution’s articles 25 and 26 or any article about religious freedom. Instead of just combining personal laws, the uniform civil code should be introduced as a new law because if we blend personal laws, there will be a scope of arbitrariness. For instance, the parliament should introduce new legislation similar to the 1954 special marriage act, which will no longer favor or display any bias toward any religion.
Lastly, it must be understood that India has a variety of religions due to numerous invasions at various points in time. Still, the republic of India grants itself a status as a Secular state in the preamble of the Indian Constitution. As a result, it respects and tends not to interfere in the private religious observances of every religion. The Uniform Civil Code is the best strategy for achieving secularism and will accomplish two different sorts of equality: first, equality across communities, and second, equality within communities.
[1] M.P. Jain, Outlines of Indian Legal History, 640 (7th edition, 2014)
[2] INDIA CONST. art. 14.
[3] John Vallamattom and Ors. v. Union of India, (2000) 6 SCC 224
[4] Minerva Mills Ltd. V. Union of India, AIR 1980 SC 1789.
[5] Daniel Latifi v. Union of India, (2001) 7 SCC 740.
[6] Mohd. Ahmad Khan v. Shah Bano Begum and Ors, AIR1985 SC 945.
[7] Sarla Mudgal, President, Kalyani v/s Union of India, 1995 AIR 1531.
Author: Rhythm Agal
Juris Centre 