Uniform Civil Code (UCC)

• Context (IE I TH I IE): The Uttarakhand UCC Bill, 2024 proposes some significant changes in marriage, adoption, and related aspects.
• Uttarakhand is the first state in India to implement such legislation after independence.

About the Uniform Civil Code (UCC)

• A Uniform Civil Code (UCC) seeks to provide one law for the entire country, applicable to all religious communities.
• It seeks to ensure not only the uniformity of laws between communities but also the uniformity of laws within communities, ensuring equality between the rights of men and women.
• A UCC would effectively mean streamlining laws relating to
  1. Marriage,
  2. Divorce,
  3. Adoption,
  4. Guardianship,
  5. Succession,
  6. Inheritance etc.

Constitutionality of Uniform Civil Code

• Article 44 in part IV (Directive Principles of State Policy) of IC says that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
• Part IV of IC deals with the Directive Principles of State Policy, which are not enforceable or justiciable in a court of law but are fundamental to the country’s governance.

Constitutionality of UCC by States

• Personal laws such as intestacy and succession, wills, joint family and partition, marriage and divorce, relate to Entry 5 of List-III-Concurrent List of the Seventh Schedule of the IC.
• Hence, the States are also empowered to legislate upon them.

Enacting and Enforcing UCC

• While Article 44 uses the words “the state shall endeavour”, other Articles in the ‘DPSP’ use words such as “in particular strive”, “shall, in particular, direct its policy”, “shall be the obligation of the state,” etc.
• Article 43 mentions “the state shall endeavour by suitable legislation”, while the phrase “by suitable legislation” is absent in Article 44.
• This implies that the duty of the state is more significant in other DPSPs than in Article 44.

Uniform Civil Code and Constitutional Assembly (CA) debates

• There was no consensus in the CA about what a potential UCC would entail.
• Many thought that a UCC would coexist alongside personal laws, while others felt that it was to replace personal law.
• Many believed that a UCC would deny freedom of religion.
• The proponents of the UCC in the CA included members like B.R. Ambedkar, Alladi Krishnaswamy Ayyar, and K.M. Munshi. They put forth the following arguments in favour of a UCC-
  1. Equality and Justice: UCC would uphold the principles of equality and justice.
  2. Secularism: UCC would align with the secular nature of the Indian state.
  3. Women’s Rights: It would do away with discriminatory practices prevalent in personal laws, particularly those affecting women’s rights in matters such as marriage, divorce, and inheritance.
• Opponents of the UCC in the CA included members such as Nazirrudin Ahmad and Mohammad Ismail Khan. They expressed the following reservations about the UCC-
  1. Religious Autonomy: It might infringe on the religious autonomy of various communities, interfering with religious customs and traditions.
  2. Cultural Sensitivities: It might not adequately accommodate the unique customs and sensitivities of different communities.
  3. Social Unrest: Implementing a UCC might mean forcing the communities to relinquish their identities; this could lead to social unrest and communal tensions.
• The uncertainty about what was acceptable as ‘freedoms ‘ and what was not led the CA to contain the provision of a UCC in Article 44 of the IC among DPSP rather than Fundamental Rights (FRs).

Background of Uniform Civil Code

• Colonial India: The British government report in 1835 stressed the need for uniformity in the codification of laws relating to crimes, evidence, and contracts.
  • Personal laws of Hindus and Muslims were to be kept outside such codification.
• B N Rau Committee: The increase in legislation dealing with personal issues forced the government to form a Committee to codify Hindu law in 1941.
• Hindu Succession Act: Based on its recommendations, a bill was adopted in 1956 to codify the law relating to intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs.
• Separate Personal Laws: There were separate personal laws for Muslims, Christians and Parsis.

• Religious Rights Vs other FRs: Practices such as triple talaq and polygamy adversely impact the right of a woman to a life of dignity;
  • GOI has raised the question of whether constitutional protection given to religious practices should extend even to those that are not in compliance with FRs.

Need for Uniform Civil Code

Ensuring equality

• Presently, in India, different communities are governed by different Personal laws.
• Even within a religion, there is not a single common personal law governing all its members.
  • For example, laws differ from place to place for the registration of marriage among Muslims.
  • It was compulsory in J&K (1981 Act) and optional in Bengal and Bihar (both under the 1876 Act).
• The Personal Law system violates the principle of equality in the IC.

National integration

• A UCC will separate religion from social relations and personal laws, ensuring equality and, thus, harmony in society.
• It will help the cause of national integration by removing disparate loyalties to the religious law, which has conflicting ideologies.
• UCC could induce custodians of faith to look inward and seek to codify and reform age-old personal laws.

Gender Justice

• UCC will promote gender justice by removing the inbuilt discriminatory provisions of personal laws.
• It would grant equal rights and status to women in matters of marriage, divorce, inheritance, adoption, maintenance, etc.
  • Under the Hindu law, the Mitakshara branch of law denied a Hindu daughter a right by birth in the joint family estate; her place in the paternal family was only temporary as she belonged to her husband’s family after marriage.
  • Islamic law prescribes that generally, a man’s share of the inheritance is double that of a woman in the same degree of relationship to the deceased.
  • Under Muslim law, the father is the sole guardian of the person and property of his minor child.

Freedom of Choice

• A religion-neutral personal law would encourage the protection of couples in case of inter-caste and inter-religious marriages.
• Even Acts like the SPA, 1954 permit any citizen to have a civil marriage outside the realm of any religious personal law.

Simplification and Rationalisation of the Legal System

• It would simplify the legal system by removing the complexities and contradictions of multiple personal laws.
• It would harmonise the civil and criminal laws by removing the anomalies that arise due to different personal laws.
• It would make the law more accessible and understandable for the ordinary people.

Modernisation and Reform of Outdated and Regressive Practices

• UCC would modernise and reform the regressive practices that are prevalent in some personal laws.
• It would eliminate the practices that are against the human rights and values enshrined in the IC, such as triple talaq, polygamy, child marriage, etc.
• It would also accommodate the changing social realities and aspirations of the people.

Elevates Global Image

• It would enhance India’s international image as a progressive and inclusive democracy.
• It would align India’s legal framework with global human rights standards.

Essentials and Non-Essentials of a Religion

• It is argued that UCC will only deal with non-essential practices of a religion and thus will not violate the religious freedom of communities.

Challenges in Implementing Uniform Civil Code

Diverse Personal Laws and Customary Practices

• India is a country of diverse religions, cultures and traditions.
  • Each community has its own set of personal laws and customs that govern their civil matters.
  • These laws vary widely across regions, sects and groups.
  • Finding common ground and uniformity among such diverse groups is very difficult and complex.
• Many personal laws are not codified or documented but are based on oral or written sources that are often ambiguous and contradictory.

Resistance from Religious and Minority Groups

• Many religious groups view UCC as an infringement on their religious freedom and autonomy.
• They believe UCC would impose a majoritarian law disregarding their identity and diversity.

Lack of Political Will and Consensus

• There is a lack of consensus among the government, the legislature, the judiciary and the civil society to initiate and implement UCC.
• There are also apprehensions that UCC could provoke communal tensions and conflicts in society.

Practical Difficulties and Complexities

• It would require consultation and participation of various stakeholders, including religious leaders, legal experts, women’s organisations, etc.
• It would require a massive exercise of drafting, codifying and rationalising the various personal laws and practices in India.
• It would also require a robust mechanism of enforcement and awareness to ensure compliance and acceptance by the people.

Constitutional Hurdle

• Article 25 of the IC gets into conflict with the concepts of equality enshrined in the IC.

• Articles 371 (A) to (I) and VIth Schedule of the IC provide certain protections to the states of Assam, Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law.

• While uniformity in personal laws is envisaged through Article 44, the inclusion of personal laws in the concurrent list indicates the protection of diversity in personal laws.

Undermining Federalism

• Personal matters being under the Concurrent List, both the Parliament and state legislature are empowered to make laws on them.
• Imposing a UCC could undermine the federal structure by infringing upon the rights of states.

Constituent Assembly’s view

• The framers of IC did not intend total uniformity or one law for the whole country, which is why personal laws were placed in entry 5 of the Concurrent List, with the power to legislate given to Parliament and State Assemblies.
• Since personal laws are in the Concurrent List, they may differ from State to State.

SC on UCC

Shah Bano Begum v. Mohammad Ahmed Khan (1985)

• Upheld the right of a Muslim woman to claim maintenance from her husband under Section 125 of the Criminal Procedure Code, even after the expiry of the Iddat period.
• A UCC would help in removing contradictions based on ideologies.

Sarla Mudgal v. Union of India (1995)

• A Hindu husband cannot convert to Islam and marry another woman without dissolving his first marriage.
• A UCC would prevent such fraudulent conversions and bigamous marriages.

T.M.A Pai Foundation v. State of Karnataka, 2003

• The idea of UCC might not be in accordance with the spirit of Indian secularism, where multiple individual identities co-exist under the umbrella of the national identity.

Shayara Bano v. Union of India (2017)

• The practice of triple talaq is unconstitutional and violative of the dignity and equality of Muslim women.
• Parliament should enact a law to regulate Muslim marriages and divorces.

Indian Young Lawyers Association v. State of Kerala (2018)

• Personal/customary law comes under the ambit of Article 13.
• No religious practice can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality.

Law Commission’s Views on Uniform Civil Code

21st Law Commission of India (headed by Justice Balbir Singh Chauhan), 2018

• In 2018, the Law Commission issued a consultation paper instead of a final report on the UCC.
• The paper titled Reforms of Family Law argued for reforming family laws across religions through amendments and codifying personal laws to limit “ambiguity in interpretation” and application.
• Following are some of the suggestions:
  1. UCC is neither necessary nor desirable at this stage.
  2. A unified nation did not necessarily need “uniformity”. Difference did not always imply discrimination in a robust democracy.
  3. Secularism could not contradict the plurality prevalent in the country. “Secularism” had meaning only if it assured the expression of any form of difference.
  4. Discriminatory practices within a religion should not hide behind the cloak of that faith to gain legitimacy. The discriminatory practices, prejudices and stereotypes within a particular religion and its personal laws should be studied and amended.
  5. Certain measures in marriage and divorce should be uniformly accepted in the personal laws of all religions. Some of these amendments include fixing the marriageable age for boys and girls at 18, making adultery a ground for divorce for both men and women, etc.

22nd Law Commission of India (headed by Justice Rituraj Awasthi)

• This commission has issued a consultation paper on the UCC, seeking public feedback on the issue.