A Uniform Civil Code to Unite a Diverse Nation

An essay on "A Uniform Civil Code to Unite a Diverse Nation" by Vedha Srinivasan provides recommendations for enforcing the Union Civil Code. In India, there are uniform criminal laws for all citizens. Crime is looked at with unwavering objectivity that cuts through all religions, castes, genders, and socio-economic backgrounds. Yet, this is not the case with civil laws governing personal matters. This translates into a recipe for chaos in a country as diverse as India, where many traditions are followed.

There is a disturbing divergence in procedures such as adoption, divorce, and inheritance. In fact, the variance is so phenomenal that it challenges the concept of equality and equitability in civil governance. This essay explores the various aspects of the Uniform Civil Code, the genesis, socio-political undercurrents that hinder the enforcement of the Uniform Civil Code, and significant cases that spell out the fractured view of justice that results in the continued refusal to accept the UCC. 

Introduction

Independent India was obligated to replace personal laws based on the scriptures and traditions of each significant religious community in India with a uniform body of laws regulating all citizens, known as the Uniform Civil Code(UCC). Ambedkar envisaged a UCC that would fuel national unity and protect the interests of vulnerable sections of society. The UCC was intended to subject all religious communities in India to one legislation governing issues such as marriage, divorce, adoption, maintenance, inheritance and succession. A universal set of laws regulating every citizen is intended to replace the personal laws based on the scriptures and traditions of each major religious community in India.

Article 44 of the Constitution stipulates that the state must establish a uniform civil code for its residents across the Indian subcontinent. The principles outlined in Article 37 are essential even though the Directive Principles of State Policy(DPSP) as defined therein are not justiciable (not enforceable by any court). Article 44 is one of the DPSPs.

Most civil cases are governed by uniform laws in India, such as the Evidence Act, 1872, Civil Procedure Code, Transfer of Property Act, 1882, and Partnership Act, of 1932. States have made countless adjustments, so even under these secular civil rules, there is a difference in some areas. A number of states have recently objected to the 2019 Uniform Motor Vehicles Act.

Evolution of the Uniform Civil Code

The Second Law Commission report, published in 1835, emphasized the need for uniformity in the codification of Indian laws with regard to crimes, evidence, and contracts but advised against codifying other areas of law, such as the personal laws of Hindus and Muslims, which were based on their respective religions. The Proclamation of Queen Victoria in 1858 guaranteed complete non-interference in religious affairs.

In 1941, the B N Rau Committee was finally established to codify Hindu law. Following India's independence, a measure known as the Hindu Succession Act was passed in 1956 based on the recommendations of the B N Rau Committee. As Christians, Jews, Muslims, and Parsis are recognized as separate communities from Hindus, this revised and formalized the law relating to intestate succession among Hindus, Buddhists, Jains, and Sikhs while exempting them.

The Uniform Civil Code became controversial in Indian politics during the Shah Bano Case. Bano Begum, a Muslim lady, was subjected to receive alimony from her ex-husband as per the decision of the Supreme Court. The initial personal laws were created during British Rule, mostly for Muslims and Hindus. The British stayed out of this domestic dispute out of concern for the community leaders' resistance.

In order to improve women's rights, equality, and secularism, women activists first called for a uniform civil code at the beginning of the 20th century. A few legal changes were made up until India's independence in 1947 to help women, primarily Hindu widows. The Hindu Code Bill was passed by the Indian Parliament in 1956 despite strong resistance. Even though Prime Minister Jawaharlal Nehru, his allies, and women campaigners called for a Uniform Civil Code, they ultimately had to accept the compromise of incorporating it into the Directive Principles due to strong opposition.

The Hindu Widow Remarriage Act of 1856, Married Women's Property Act of 1874, Hindu Inheritance (Removal of Disabilities) Act of 1928, and Hindu Women's Right to Property Act of 1937 were among the laws that were passed in response to movements by progressive groups in British-ruled India and women's organizations. The rise in the legislation addressing personal matters sparked discussions and controversies and called for a considered response from the ruling class.

The Hindu Code Bill

After the Constitution was adopted in 1951, the Rau Committee report was presented to a selected committee led by B. R. Ambedkar for discussion. The Hindu Code Bill expired and was resubmitted in 1952 as disputes persisted. After being amended, the legislation governing intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs was codified in 1956 as the Hindu Succession Act. The Act changed Hindu personal law and allowed women more stability in the ownership and property rights. It granted women the right to own property in their father's estate. For a male who passed away intestate, the Act of 1956's general rules of succession indicates that Class I heirs succeed before those in other classes. More descendants were added to the Act in 2005, boosting females to Class I heirs. The daughter receives the same portion that a son does.

Need for a Uniform Civil Code

A uniform civil code is necessary for national integration because it will separate religion from social connections and personal rules, promoting equality and, by extension, social concord.

 The Supreme Court stated in Mohd. Ahmed Khan v. Shah Bano Begum(1985),

"A unified civil code will promote the cause of national unification by eradicating divergent loyalties to the law which have competing philosophies." 

Because certain religious communities receive preferential status under the law, it would aid in India's integration. This might eventually prompt guardians of faith to examine themselves and strive to codify and amend long-standing personal laws in line with the moment's modernizing and integrating tendencies.

The right of women to their life and dignity is negatively affected by customs like triple talaq and polygamy. Following the Shah Bano case in 1985, interest in the uniform civil code increased significantly. The argument started when it was raised whether some laws should be made universally applicable. These regulations shouldn't restrict people's fundamental freedom to follow their religion. Following that, the discussion turned to polygamy and Muslim personal law, which is primarily based on Shariat law. Muslims, the Indian left, and a conservative segment of Hindus are the main groups opposed to the creation of a uniform civil code because they see it as a danger to religious freedom.

By eliminating the discriminatory clauses that are already present in personal laws, UCC would advance gender justice. The Mitakshara branch of Hindu law disallowed a Hindu daughter from inheriting a share of the joint family fortune because she was only temporarily a member of her father's family before marrying into her husband's family. According to Islamic law, a man's inheritance portion is often double that of a woman who has the same degree of kinship to the deceased. According to Islamic law, the sole guardian of his minor child's person and property is the father.

The Hindu Marriage Act of 1955, the Hindu Succession Act of 1956, the Hindu Adoption and Maintenance Act of 1956, and the Hindu Minority and Guardianship Act currently govern various communities in India.

Christians, Parsis, and Muslims are all subject to their own sets of legislation. There is no single common personal law that applies to all of a religion's followers. Laws vary from place to place, for instance, when it comes to Muslim marriage registration. In J&K (1981 Act), it was required; in Bengal and Bihar, it is not (both under the 1876 Act). One could argue that the Constitution's guarantee of equality is broken by the Personal Law system. Additionally, the Uniform Civil Code will serve as a tool for achieving intelligibility, clarity, and simplicity in personal legislation. In the Indian Young Lawyers Association v. State of Kerala(2006), the Supreme Court in 2018 ruled that personal/customary law is covered by Article 13. No set of rules or customs has the right to assert supremacy over the Constitution and its goal of protecting the sanctity of equality, liberty, and dignity.

While the founders of the Constitution had hoped and anticipated that the State would work to ensure for the citizens a Uniform Civil Code throughout the territories of India, no action has been taken in this regard, the Supreme Court recently noted in Jose Paul Coutinho v. Maria Luiza(2010).

In cases of inter-caste and inter-religious weddings, the protection of couples would be encouraged by personal legislation that was neutral toward religion. Any citizen may get married in a civil ceremony outside the purview of any particular faith or personal law according to laws like the Special Marriage Act of 1954.

Implementation of Uniform Civil Court 

The International Scenario

Israel, Japan, France, and Russia are strong countries today because of their sense of unity, which we have yet to foster and promote. A uniform civil code, or for that matter, a uniform body of criminal or civil law, exists in nearly every country. All citizens, regardless of their religious convictions, are subject to the same secular laws in both the United States and the European Union. Islamic countries have a single set of sharia-based laws that apply to everyone, regardless of religion.

Important Points

1. "Rise of the Right": Hindu nationalists (BJP) assert that this framework of the Hindu Code's principles is gender-neutral and secular. BJP has been pushing for the legislation in Parliament and implementation of UCC was the first pledge made by the saffron party in its Lok Sabha election manifesto for 2019. Though the adoption of UCC is a directive notion under Article 44 of the Constitution, it was declared a question of public policy, according to the Ministry of Law and Justice.

2. "Neither required nor desirable": According to the 21st Law Commission, a unified civil code is "neither essential nor desirable at present", since 'diversity' cannot be equated with 'inequality'. In 2016, the Judiciary/Legal Commission created a 185-page document, reaffirming that diversity and plurality make up a country's cultural and social fabric. Instead of considering it as inequality "between" communities, they encouraged legislators to regard it as equality "within" communities between men and women. In the absence of agreement on UCC, diversity of personal law must be respected and maintained, and all individual laws must also be weighed.

3. Women's Movement and "Gender Equality": In India, women's rights are regularly disputed and denied, this can be addressed by the UCC.

Successful implementation of the UCC in Goa, Daman & Diu, and Uttarakhand

The Portuguese separately codified the local customs of Goa and Daman & Diu. These Portuguese laws (Portuguese Civil Code of 1867 etc.) were retained and altered by competent authorities upon the liberation of the Union Territory in 1961. Goa was the first state in India to provide a Uniform Civil Code, and is the only state in India with a common family law system – regardless of beliefs in Hinduism, Islam, Christianity, etc. In Goa, marriage is a legal contract between two individuals of different sexes to live together and start a family. Goans are regulated by laws forbidding marriage to spouses who are involved in murders etc.

Recently, the Chief Minister of Uttarakhand made an announcement that the state would adopt the Uniform Civil Code on March 24, 2022.

Contextual Issues relating to UCC

There are a few significant contextual issues regarding the Uniform Civil Code:

Legitimacy - The UCC may have been relevant in 1858 since the foreign colonial power may have been wary of religious and social customs, and required to quell sedition. Independent India, however, is an altogether different proposition, since 'sovereignty' is vested in the people. Hence, there's no restriction - external or internal - that can prevent the government from safeguarding the interests of all its citizens. With elections held periodically, the government is elected for the people, by the people, ensuring accountability at all costs. Seven successful decades of passing laws for the common good bear testimony to universal suffrage.

Minority v. Majority - Ironically, Hindus and Muslims alike have strong concerns about laws that violate their most fundamental beliefs, faith, rituals, and practices. Other communities also have concerns due to differences in their customs.

Gender Equality - Women get the raw end of the stick no matter whether you look at Hindu laws on inheritance, remarriage, and divorce; or the Muslim Shariat Law governing triple talaq, alimony, etc. The UCC aims to correct the wrongs of religious traditions in India.

Secularism - Some people view the UCC as a representation of secularism and social equality. However, those who have adhered to personal laws for individual religions their entire life may have a lot of adjusting to do. It's important for the government not to demoralize the people by confusing them into interpreting that uniformity is going against the traditions. Many contend that the UCC is not anti-secular and does not contravene Articles 25 and 26 of the Indian Constitution. Article 44 stipulates that there is no inescapable connection between religion and personal law in a civilized society. The right to religious freedom cannot grant the ability to exempt secular parts of religion from the application of the law.

Challenges in implementing UCC in India

The objective of having a level playing ground for all citizens regardless of religion, caste, creed, or gender is, without a doubt, a noble objective. The adoption of the Uniform Civil Code will bring in the simplification of laws that currently divide citizens based on religious views (e.g. the Hindu Code Bill, Sharia Law, etc.). Clearly, the UCC will usher in much-needed consistency in the complicated legislation of fundamental practices such as marriage ceremonies, inheritance, succession, and adoptions.

So, why is there so much resistance to the implementation of the Uniform Civil Code?

Consider this: On the one hand, the UCC will make a single set of rules for all citizens, which ought to eliminate the divisive forces that stem from religious beliefs. On the other hand, the very process of implementing the UCC will ruffle many feathers among religious bodies who consider it a callous overriding of their communal sentiments. Additionally,  political parties with a vested interest in divided vote banks tend to play on the underlying insecurities and fuel overt rejection.

So far we have considered the attitudinal challenges that hinder the incorporation of the UCC. It should be mentioned that the steps involved in the very process of implementation of UCC are complex beyond imagination. A wide range of interests and sentiments must be taken into account even before laying out the blueprint for the UCC. The work of actually developing a set of laws that would govern all communities is highly difficult and time-consuming.

Additionally, the content of the UCC has not been made explicit. This opens up a grey area where minorities may start suspecting that it is a method of imposing the opinions of the majority on them. Lack of political will because of the sensitiveness and complexity of the matter.

The politicization of the UCC dispute is a result of the disparate personal laws practiced by many religious communities. Personal laws, according to UCC's detractors, stem from religious views. They argue that it is wise to avoid bothering them since doing so could lead to intense hostility and tension between different religious communities. Additionally, Articles 29 and 30 provide minorities in India, a secular nation, the freedom to practice their own religion, culture, and customs. They contend that using UCC will be in violation of these provisions.

Way Forward

The political climate and social milieu are key drivers of the acceptance and rejection of reforms. The Congress Party's dependence on minority vote banks makes them favour regressive religious dictates - even to the extent of making a mockery of justice by reversing the Court's judgment on alimony. Likewise, other parties such as Bharatiya Janata Party (BJP) take political stances favouring the implementation of the UCC - even listing it in the BJP's 2019 election manifesto. However, the journey from intention to implementation is more difficult than anticipated.

Acceptance of the UCC calls for an objective mindset is required. India may be able to cultivate the much-needed open mind due to the unique demographic advantage of being one of the youngest populations in the world. Educating the youth can help them develop an informed understanding of the divisive forces that hamper UCC. Also, younger citizens are easier to reach through digital and mobile mediums, making it possible to run awareness campaigns on UCC.

Another significant association with the Youth Surge is 'expectations' - of the government and politicians living up to their promises and commitments. The sad lack of political will fuelled by religious sensitivity can potentially be overcome by an increasing political consciousness that politicians are actually being held accountable for their views. This may make them more responsive to the implementation of UCC.

Light at the end of the tunnel

2019 had seen a minor setback in the journey toward UCC as the 21st Law Commission of India stipulated that the task of examining different UCC-related concerns and offering suggestions was more of a Public Policy matter than a job for the court. However, recent developments have lifted the cloud, with the Chamber of Chief Justices giving the government three weeks to present a "comprehensive answer" to the UCC issue and proposing a measure to parliament. The Supreme Court has asked the government to systematically work towards a religiously neutral law or Uniform Civil Code by evaluating matters relating to marriage age, divorce, alimony and child support, adoption and guardianship, succession, and inheritance.

BJP leader's petitions supported a standard marriage age that was unaffected by gender or religion. A BJP leader filed a petition saying: "different minimum marriage age for men and women is based on patriarchal stereotypes and has no scientific foundation". Hence, the marriage age ought to be 21 for both genders, since different age specifications violate women's rights, gender equality, gender justice, and women's dignity, as well as Articles 14, 15, and 21 of the Constitution and international treaties. The All India Muslim Personal Law Commission firmly rejected the argument, noting that the BJP leader had submitted a comparable petition with his 2015 Unified Civil Code to the Supreme Court, which was later withdrawn with the option of appeal.

Yes, the healthy debate has continued. But the recent developments may just be the beginning of the end of the journey toward UCC.

References

[1] Essay on Uniform Civil Code, Available Here

[2] Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR 1985 SC 945.

[3] Jayesh Rao, Implementation of Uniform Civil Code, Available Here

[4] What is Uniform Civil Code, Available Here

[5] Uniform Civil Code, Available Here

[6] Indian Young Lawyers Association v. State of Kerala, Writ Petition (Civil) No. 373 of 2006.

[7] Jose Paul Coutinho v. Maria Luiza, Civil Appeal 7378 of 2010.

[8] Krati, Uniform Civil Code, Available Here

[9] PTI, No Plan for the Committee to Implement UCC, Available Here

[10] What is Uniform Civil Code that is going to be implemented in Uttarakhand, Available Here

Important Links

Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams

Law Aspirants: Ultimate Test Prep Destination