Meaning
Uniform civil code basically, precisely and in a lay man’s language means one country one rule, legally the term civil code means to cover the entire body of laws governing rights relating to property and otherwise in personal matters like marriage, divorce, maintenance, adoption and inheritance. Uniform civil code essentially means unifying all these “personal laws” to have one set of secular laws dealing with these aspects that will apply to all citizens of India irrespective of the community they belong to, though an exact figure has not been painted yet but Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are retrograde. Basically uniform civil code is a try to give the whole picture a more regulated and systematic look.
In India, we have a criminal code that is equally applicable to all, irrespective of religion, caste, gender and domicile. However, a similar code does not exist especially with respect to divorce and succession and we are still governed by the personal laws. These personal laws are varied in their sources, philosophy and application. Thus, a major constraint arises while bringing people governed by different religions under one roof.
Article 44 of the Constitution of India declares that “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.”
A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed under different personal laws based on their religion or caste or tribe. Such codes are in place in most modern nations.
Though Dr. B.R. Ambedkar was an extensive supporter of the Uniform Civil Code, he couldn’t get it through more than a status of Directive Principle due to opposition from the members. This directive principle is aimed to achieve, gradually, rather than at once, more far-reaching equality for all citizens. The state has been entrusted with this voluminous task. However, no significant steps have been taken by any government till now.
Apart from being an important issue regarding secularism in India, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. The debate then focused on the Muslim Personal Law, which is partially based on the Sharia law and remains unreformed since 1937, permitting unilateral divorce and polygamy in the country.
The Bano case made it a politicized public issue focused on identity politics—by means of attacking specific religious minorities versus protecting its cultural identity. In contemporary politics, the Hindu right-wing Bharatiya Janta Party and the Left support it while the Congress Party and All India Muslim Personal Law Board oppose it. Goa has a common family law, thus being the only Indian state to have a uniform civil code. The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law.
Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere. The demand for a uniform civil code was first put forward by women activists in the beginning of the twentieth century, with the objective of women’s rights, equality and secularism. Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows. In 1956, the Indian Parliament passed Hindu Code Bill amidst significant opposition. Though a demand for a uniform civil code was made by Prime Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the compromise of it being added to the Directive Principles because of heavy opposition.
British India (1858–1947)
The debate for a uniform civil code dates back to the colonial period in India. The Lex Loci Report of October 1840 emphasised the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification. According to their understanding of religious divisions in India, the British separated this sphere which would be governed by religious scriptures and customs of the various communities (Hindus, Muslims, Christians and later Parsis). These laws were applied by the local courts or panchayats when dealing with regular cases involving civil disputes between people of the same religion; the State would only intervene in exceptional cases. Thus, the British let the Indian public have the benefit of self-government in their own domestic matters with the Queen’s 1859 Proclamation promising absolute non-interference in religious matters. The personal laws involved inheritance, succession, marriage and religious ceremonies. The public sphere was governed by the British and Anglo-Indian law in terms of crime, land relations, laws of contract and evidence—all this applied equally to every citizen irrespective of religion.
Throughout the country, there was a variation in preference for scriptural or customary laws because in many Hindu and Muslim communities, these were sometimes at conflict;such instances were present in communities like the Jats and the Dravidians. The Shudras, for instance, allowed widow remarriage—completely contrary to the scriptural Hindu law.The Hindu laws got preference because of their relative ease in implementation, preference for such a Brahminical system by both British and Indian judges and their fear of opposition from the high caste Hindus. The difficulty in investigating each specific practice of any community, case-by-case, made customary laws harder to implement. Towards the end of the nineteenth century, favoring local opinion, the recognition of individual customs and traditions increased.
The Muslim Personal law or Sharia law, was not strictly enforced as compared to the Hindu law. It had no uniformity in its application at lower courts and was severely restricted because of bureaucratic procedures. This led to the customary law, which was often more discriminatory against women, to be applied over it. Women, mainly in northern and western India, often were restrained from property inheritance and dowry settlements, both of which the Sharia provides. Due to pressure from the Muslim elite, the Shariat law of 1937 was passed which stipulated that all Indian Muslims would be governed by Islamic laws on marriage, divorce, maintenance, adoption, succession and inheritance.
Legislative reforms
The Hindu law discriminated against women by depriving them of inheritance, remarriage and divorce. Their condition, especially that of Hindu widows and daughters, was poor due to this and other prevalent customs. The British and social reformers like Ishwar Chandra Vidyasagar were instrumental in outlawing such customs by getting reforms passed through legislative processes. Since the British feared opposition from orthodox community leaders, only the Indian Succession Act 1865, which was also one of the first laws to ensure women’s economic security, attempted to shift the personal laws to the realm of civil. The Indian Marriage Act 1864 had procedures and reforms solely for Christian marriages. There were law reforms passed which were beneficial to women like the Hindu Widow Remarriage Act of 1856, Married Women’s Property Act of 1923 and the Hindu Inheritance (Removal of Disabilities) Act, 1928, which in a significant move, permitted a Hindu woman’s right to property.
The call for equal rights for women was only at its initial stages in India at that time and the reluctance of the British government further deterred the passing of such reforms. The All India Women’s Conference (AIWC) expressed its disappointment with the male-dominated legislature and Lakshmi Menon said in an AIWC conference in 1933, “If we are to seek divorce in court, we are to state that we are not Hindus, and are not guided by Hindu law. The members in the Legislative assembly who are men will not help us in bringing any drastic changes which will be of benefit to us.” The women’s organisations demanded a uniform civil code to replace the existing personal laws, basing it on the Karachi Congress resolution which guaranteed gender-equality.
The passing of the Hindu Women’s right to Property Act of 1937, also known as the Deshmukh bill, led to the formation of the B. N. Rau committee, which was set up to determine the necessity of common Hindu laws. The committee concluded that it was time of a uniform civil code, which would give equal rights to women keeping with the modern trends of society but their focus was primarily on reforming the Hindu law in accordance with the scriptures. The committee reviewed the 1937 Act and recommended a civil code of marriage and succession; it was set up again in 1944 and send its report to the Indian Parliament in 1947.
The Special Marriage Act, which gave the Indian citizens an option of a civil marriage, was enacted first in 1872. It had a limited application because it required those involved to renounce their religion and was applicable only to Hindus. The later Special Marriage (Amendment) Act, 1923 permitted Hindus, Buddhists, Sikhs and Jains to marry either under their personal law or under the act without renouncing their religion as well as retaining their succession rights
Indian approach
Constitution of India, Directive principle of state policy, Art.44 says that the government of India should thrive to bring a Uniform Civil code in the country. But as Article 37 of the Constitution itself makes clear, the directive principles “shall not be enforceable by any court”. Nevertheless, they are “fundamental in the governance of the country”.
Therefore it has never been tried hard to bring a uniform civil code though it has been in manifestation but in no one’s action. But there have been many incidents that India needs a Uniform Civil Code.
Mohd. Ahmed Khan v. Shah Bano Begum commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India. Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. She filed a criminal suit in the Supreme court of India, in which she won the right to alimony from her husband. However, she was subsequently denied the alimony when the Indian Parliament reversed the judgement under pressure from Islamic orthodoxy. The judgement in favour of the woman in this case evoked criticisms among Muslims some of whom cited Quran to show that the judgement was in conflict with Islamic law. It triggered controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the Congress government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcées the right to alimony from their former husbands. However, in the later judgments including Daniel Latifi case and Shamima Farooqui v. Shahid Khan case, the Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgement and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified. Many Muslims including All India Shia Personal Law Board supported the Supreme Court of India’s order to make the right to maintenance of a divorced Muslim wife absolute.
The Act has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of ₹500 – an upper limit which has since been removed. Cases of women getting lump sum payments for lifetime maintenance are becoming common. However it is seen that despite its unique feature of no ceiling on quantum of maintenance, the Act is sparingly used because of the lack of its knowledge even among lawyers. The legal fraternity generally uses the CrPC provision while moving maintenance petitions, considering it handy.
The Shah Bano case had once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform of Hindu law in the 1950s, in its metamorphosis as the Bharatiya Janata Party, became an advocate for secular laws across the board. However, their opposition to the reforms was based on the argument that no similar provisions would be applied for the Muslims on the claim that they weren’t sufficiently advanced. The pressure exerted by orthodox Muslims caused women’s organizations and secularists to cave in.
The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged before the Supreme Court in Danial Latifi & Anr v. Union Of India by Daniel Latifi in 2001, who was the lawyer of Shah Bano in the Shah Bano case. The Supreme Court tried to maintain a balancing act, attempting to uphold Muslim women’s rights without addressing the constitutionality of gender and religious discrimination in personal law. Court reiterated the validity of the Shah Bano judgment. The Muslim Personal Law Board, an intervenor, questioned the authority of the court to interpret religious texts.
The Court concluded that the Act does not, in fact, preclude maintenance for divorced Muslim women, and that Muslim men must pay spousal support until such time as the divorced wife remarries. However the Court held that if the Act accorded Muslim divorcees unequal rights to spousal support compared with the provisions of the secular law under section 125 of the Criminal Procedure Code, then the law would in fact, be unconstitutional. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of articles 14 and 15 of the Constitution of India. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word “within” and not “for”). It extends for the entire life of the divorced wife until she remarries.
Issue of diversity:- different religions & customs
India is a diverse country, has different religion and different religion has different customs in it, so will there be any uniformity left, India has a uniform set of rules for everything then why not personal laws.
Danial Latifi v. Union of India, the most controversial question which has been politically significant in the recent past in the background of a secular constitution and the concept of welfare state is that whether or not a divorced Muslim woman after divorce post iddat period is entitled to maintenance by her husband or not. The iddat period is generally considered to be three menstrual courses if she is subject to menstruation, three lunar months if she is not subject to menstruation or if she is pregnant at the time of her divorce the period between her divorce and the delivery of child or the termination of pregnancy, whichever is earlier. Generally it is taken to be three months.
A divorced Muslim woman is entitled to maintenance from her husband during the period of iddat, after that Muslim personal law though nowhere expressively permits maintenance after divorce but it also does not prohibits, specifically or impliedly, it anywhere. In fact interpretation of the Holy Quran shows that the Islam as a religion calls for providing maintenance to a divorced woman on a reasonable scale, and this is a duty of every righteous god fearing person.
In the ShahBano case the Quran board passed some other law, how could a court’s order be subjected.
Impact on personal laws
The perception that a uniform civil code would necessitate changes in only Muslim personal law is quite incorrect. As women’s organisations and others have repeatedly pointed out, personal laws governing different communities in India have a common feature — they are all gender-biased.
For instance, the law pertaining to succession among Hindus is unequal in the way it treats men and women. A truly modern, secular, non-discriminatory and progressive code would, therefore, mean changes in all personal laws. The concept of the “Hindu undivided family”, at least insofar as it pertains to succession, would also obviously have to undergo a change under a uniform civil code. Similarly, Muslim, Christian and other personal laws too would have to change. This also explains why historically changes in personal law have been resisted not just by one community, but by the ruling orthodoxy in all of them.
Problems in enforcing UCC
Since it involves a change in laws, an obvious prerequisite is sufficient support for the move within Parliament. The reason this has been difficult to achieve has been because most parties have held the view that the reform of laws pertaining to the personal domain is better done by pressure for such change from within communities rather than as an imposition from above. Further, for historical reasons, the demand for a uniform civil code has acquired communal overtones which have overshadowed the innate merits of the proposal.
To put the delay in perspective, however, it should be added that Article 44 of the Constitution is by no means the only directive principle to have not been implemented more than half a century after it was laid down. Most directive principles continue to remain pious doctrines rather than the law of the land.
Dispute post-1985
The debate for a uniform civil code, with its diverse implications and concerning secularism in the country, is one of the most controversial issues in twenty-first century Indian politics The major problems for implementing it are the country’s diversity and religious laws, which not only differ sect-wise, but also by community, caste and region. Women’s rights groups have said that this issue is only based on their rights and security, irrespective of its politicization. The arguments for it are: its mention in Article 44 of the Constitution, need for strengthening the unity and integrity of the country, rejection of different laws for different communities, importance for gender equality and reforming the archaic personal laws of Muslims—which allow unilateral divorce and polygamy. According to Qutub Kidwai, the Muslim Personal laws are “Anglo-Mohammadan” rather than solely Islamic. The Hindu nationalists view this issue in concept of their law, which they say, is secular and equal to both sexes. In the country, demanding a uniform civil code is seen negatively by religious authorities and secular sections of society because of identity politics. The Sangh Parivar and the Bharatiya Janata Party(BJP)—one of the two major political parties in India, had taken up this issue to gain Hindu support. The BJP was the first party in the country to promise it if elected into power.
Goa is the only state in India which has a uniform civil code. The Goa Family Law, is the set of civil laws, originally the Portuguese Civil Code, continued to be implemented afterits annexation in 1961.
In September 2003, in an interactive session in PGI Chandigarh, then President A. P. J. Abdul Kalam supported the need of Uniform Civil Code, keeping in view the population of the country.
Sikhs and Buddhists objected to the wording of Article 25 which terms them as Hindus with personal laws being applied to them. However, the same article also guarantees the right of members of the Sikh faith to bear a Kirpan.
In October 2015, Supreme Court of India asserted the need of a Uniform Civil Code and said that, “This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court”.
Opinion of the SC
The supreme court is quite helpless on this issue it has many a times stated that Supreme court cannot direct the Parliament to pass the UCC, previously in the year while hearing a case pertaining to whether a Christian has the right to bequeath property to a charity, the court regretted the fact that the state had not yet implemented a uniform civil code. This is not the first time that the apex court has expressed itself in favour of a uniform civil code or taken a dim view of the government’s and legislature’s inability to bring it into being. There have been other occasions like during the Shah Bano case and later in the SarlaMudgal case where too the apex court has come out strongly in favour of the enactment of a uniform civil code. However, none of these comments are binding on the executive or the legislature and do not amount to orders. At best, they exert some moral pressure on the Indian state to move towards formulating a uniform civil code.
The Supreme Court in the judgment said that
“If you want to have a uniform civil code have it, you want to follow the uniform civil code, follow it. But you must take a decision soon,” a bench headed by justice Vikramjit Sen told solicitor general Ranjit Kumar.
In the above case Albert Anthony has challenged the validity of Section 10A (1) of the Divorce Act, 1869, saying the two-year mandatory period of separation was biased against the Christian community amounting to “hostile discrimination”.
The Kerala and Karnataka high courts had declared the provision unconstitutional but Christians living in the other states were being denied benefit of the two judgments, he said.
Granting relief to unwed mothers who did not want to reveal the name of their child’s father in a guardianship case, justice Sen had in July strongly advocated such a code.
Recently a very recent PIL was also filed by Ashwini Kumar Upadhyay, a lawyer and a member of the BJP which was quashed by the court and the three-judge bench led by Chief Justice T S Thakur said the apex court’s observations for enacting a common law can only be in the “realm of hope and expectations” but a mandamus (directive) cannot be issued to the government.
The bench, also comprising Justices A K Sikri and R Banumathi, observed that it is for a person, aggrieved over violation of rights and discrimination due to a personal law, to move the court and somebody from a different community or religion cannot seek a common code alleging vices.
“The law is well-settled on this issue. We have taken a view that these are decisions to be taken by Parliament. How can we issue a mandamus in a matter like this? We can understand your commitment to achieving the constitutional goal but this cannot be done through a mandamus from the court,” the bench told senior advocate Gopal Subramanium.
What had prevented a uniform civil code from coming into being?
Since it involves a change in laws, an obvious prerequisite is sufficient support for the move within Parliament. The reason this has been difficult to achieve has been because most parties have held the view that the reform of laws pertaining to the personal domain is better done by pressure for such change from within communities rather than as an imposition from above. Further, for historical reasons, the demand for a uniform civil code has acquired communal overtones which have overshadowed the innate merits of the proposal.
To put the delay in perspective, however, it should be added that Article 44 of the Constitution is by no means the only directive principle to have not been implemented more than half a century after it was laid down. Most directive principles continue to remain pious doctrines rather than the law of the land.
Secularism v/s Uniform Civil Code
The spine of controversy revolving around UCC has been secularism and the freedom of religion enumerated in the Constitution of India. The preamble of the Constitution states that India is a “secular democratic republic” This means that there is no State religion. A secular State shall not discriminate against anyone on the ground of religion. A State is only concerned with the relation between man and man. It is not concerned with the relation of man with God. It does not mean allowing all religions to be practiced. It means that religion should not interfere with the mundane life of an individual.
In S.R. Bommai v. Union of India, as per Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the State by enacting a law.
In India, there exist a concept of “positive secularism” as distinguished from doctrine of secularism accepted by America and some European states i.e. there is a wall of separation between religion and State. In India, positive secularism separates spiritualism with individual faith. The reason is that America and the European countries went through the stages of renaissance, reformation and enlightenment and thus they can enact a law stating that State shall not interfere with religion. On the contrary, India has not gone through these stages and thus the responsibility lies on the State to interfere in the matters of religion so as to remove the impediments in the governance of the State.
Articles 25 and 26 guarantee the right to freedom of religion. Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion. But this right is subject to public order, morality and health and to the other provisions of Part III of the Constitution. Article 25 also empowers the State to regulate or restrict any economic, financial, political or other secular activity, which may be associated with religious practice and also to provide for social welfare and reforms. The protection of Articles 25 and 26 is not limited to matters of doctrine of belief. It extends to acts done in pursuance of religion and, therefore, contains a guarantee for ritual and observations, ceremonies and modes of worship, which are the integral parts of religion.
UCC is not opposed to secularism or will not violate Article 25 and 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them. No religion permits deliberate distortion. The UCC will not and shall not result in interference of one’s religious beliefs relating, mainly to maintenance, succession and inheritance. This means that under the UCC a Hindu will not be compelled to perform a nikah or a Muslim be forced to carry out saptapadi. But in matters of inheritance, right to property, maintenance and succession, there will be a common law.
Codification
The biggest obstacle in implementing the UCC, apart from obtaining a consensus, is the drafting. Should UCC be a blend of all the personal laws or should it be a new law adhering to the constitutional mandate? There is a lot of literature churned out on UCC but there is no model law drafted. Many think that under the guise of UCC, the Hindu law will be imposed on all. The possibility of UCC being only a repackaged Hindu law was ruled out by Prime Minister Atal Bihari Vajpayee when he said that there will be a new code based on gender equality and comprising the best elements in all the personal laws.
The UCC should carve a balance between protection of fundamental rights and religious dogmas of individuals. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious or political considerations.
Working of UCC and the Indian scenario
How foolproof will be the UCC? Will there be more abuse and less obedience of UCC? Will UCC have negative effect on the society? Such questions are bound to be raised after the implementation of the UCC. All laws are formulated to be obeyed, but they are abused. This doesnot mean that law should not be implemented. Similarly, there is a great possibility of the UCC being abused, but this should not eschew the Parliament from enacting the UCC; the social welfare and benefits resulting from the implementation of UCC are far greater.
While explaining the reason for including Article 44 in the Directives Principles, it was observed,
“When you want to consolidate a community, you have to take into consideration the benefits which may accrue to the whole community and not to the customs of a part of it. If you look at the countries in Europe, which have a Civil Code, everyone who goes there forms a part of the world and every minority has to submit to that Civil Code. It is not felt to be tyrannical to the minorities.”
Some legal experts argue that progressive law is welcomed but a suitable atmosphere must be created in which all sections feel secure enough to sit together and cull out the most progressive of their personal laws. But this can be answered by an example of Hindu law. When the Hindu Code Bill, which covers Buddhist, Sikhs, Jains as well as different religious denominations of Hindus, was notified, there was a lot of protest. And the then Law Minister, Dr. Ambedkar, had said that for India’s unity, the country needs a codified law. In a similar fashion, the UCC can be implemented, which will cover all the religions, whether major or minor, practiced in India and any person who comes to India has to abide by the Code.
Not many know that a UCC exists in the small state of Goa accepted by all communities. The Goa Civil Code collectively called Family Laws, was framed and enforced by the Portuguese colonial rulers through various legislations in the 19th and 20th centuries. After the liberation of Goa in 1961, the Indian State scrapped all the colonial laws and extended the central laws to the territory but made the exception of retaining the Family Laws because all the communities in Goa wanted it. The most significant provision in this law is the pre nuptial Public Deed regarding the disposal of immovable and movable property in the event of divorce or death. During matrimony, both parents have a common right over the estate, but on dissolution, the property has to be divided equally; son and daughters have the equal right on the property. As the procedure involves compulsory registration of marriage, this effectively checks child and bigamous marriage.
The philosophy behind the Portuguese Civil Code was to strengthen the family as the backbone of society by inculcating a spirit of tolerance between husband and wife and providing for inbuilt safeguard against injustice by one spouse against the other.
Commenting that the dream of a UCC in the country finds its realization in Goa, former Chief Justice of India Y.V. Chandrachud had once expressed hope that it would one day “awaken the rest of bigoted India.
Edited by Sakshi Raje
