hypothesis on uniform civil code

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Uniform Civil Code (UCC): Meaning, Constitutional Provisions, Debates, Judgments & More

Rooted in the principles of equality, justice, and secularism, the Uniform Civil Code (UCC) has been a long-standing aspiration in India. Recent developments such as the passage of the Uniform Civil Code (UCC) Bill in Uttarakhand have reignited the debates surrounding it. This article of Next IAS aims to explain the meaning of the UCC, related constitutional provisions, its benefits and challenges, and the way forward.

Meaning of the Uniform Civil Code

A Uniform Civil Code (UCC) refers to a common law that applies to all religious communities in personal matters such as marriage, inheritance, divorce, adoption, etc. It aims to replace the different personal laws that currently govern personal matters within different religious communities.

A UCC primarily aims to promote social harmony, gender equality, and secularism by eliminating disparate legal systems based on different religions and communities. Such a code seeks to ensure uniformity of laws not only between the communities but also within a community.

Constitutional Provisions

The Directive Principle of State Policies mentioned in Article 44 of the Indian Constitution provides that The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. However, being a Directive Principle, it is not justiciable.

Status of the Uniform Civil Code in India

• As of now, India does not have a Uniform Civil Code (UCC) implemented at the national level. Instead, different personal laws based on religious customs and practices govern matters such as marriage, divorce, inheritance, and adoption for different religious communities.
• However, over the years, the central government as well as some states have made certain efforts towards the implementation of UCC. These efforts can be seen under the following two heads:

Steps taken by the Center

Special marriage act, 1954.

It was enacted to provide a secular alternative in marriages. It lays down provisions for civil marriage for the people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.

Hindu Code Bills

The Hindu Code Bills , passed by the Parliament during the 1950s, are seen as a step towards the UCC. The following 4 Acts enacted under it seek to codify and bring uniformity in personal laws within the Hindu community:

• The Hindu Marriage Act, 1955
• The Hindu Succession Act, 1956
• The Hindu Minority and Guardianship Act, 1956
• The Hindu Adoption and Maintenance Act, 1956

Note: The term ‘Hindu’ also includes Sikhs, Jains, and Buddhists for the purpose of these laws.

Steps taken by the States

• This law in Goa is known as the Goa Civil Code or Goa Family Code and applies to all Goans, irrespective of their religious or ethnic community.

Uttarakhand

• The Bill provides for a common law for matters such as marriage, divorce, inheritance of property, etc., and applies to all residents of Uttarakhand except Scheduled Tribes.

Present Status

• Nationwide implementation of a Uniform Civil Code remains an elusive goal.
• Hindu Marriage Act (1955)
• Muslim Personal Law (Shariat) Application Act (1937)
• Christian Marriage Act (1872)
• Parsee Marriage and Divorce Act (1937) etc

Debates in the Constituent Assembly

The issue of the Uniform Civil Code (UCC) was debated extensively in the Constituent Assembly. Key arguments presented during the debate can be summarized as follows:

Arguments in Favor

The proponents of the UCC in the Constituent Assembly included members like B.R. Ambedkar, Alladi Krishnaswamy Ayyar, and K.M. Munshi. They put forth the following arguments in favor of a common civil code

• Equality and Justice : As per them, a common civil code would uphold the principles of equality and justice by ensuring uniform laws for all citizens, regardless of their religious affiliations.
• Secularism: A UCC would align with the secular nature of the Indian state, separating personal laws from religious considerations and promoting a unified national identity.
• Women’s Rights : Such a code would do away with discriminatory practices prevalent in personal laws, particularly those affecting women’s rights in matters such as marriage, divorce, and inheritance. Thus, it would promote gender equality and women empowerment.

Arguments Against

Opponents of the UCC in the Constituent Assembly included members such as Nazirrudin Ahmad and Mohammad Ismail Khan . They expressed the following reservations about the UCC:

• Religious Autonomy : It might cause potential infringement upon the religious autonomy of various communities as it would interfere with religious customs and traditions without the consent of those communities.
• Cultural Sensitivities : A single code might not adequately accommodate the unique customs and sensitivities of different communities. This, in turn, might hamper the diversity of religious and cultural practices in India.
• Social Unrest : Practices related to personal matters are deeply rooted in the religious and cultural identities of various communities in India. Implementing a uniform civil code might mean forcing them to relinquish their identities and could lead to social unrest and communal tensions.

Since a consensus on a UCC could not be reached in the Constituent Assembly, it was placed under the Directive Principles of State Policy under Article 44.

Supreme Court’s Views on Uniform Civil Code

The issue of a Uniform Civil Code has been dealt with by the Supreme Court in various cases. Accordingly, the Supreme Court has passed several landmark judgments and observations that have significantly contributed to the discourse on the UCC. Some of these include:

Law Commission’s Views on Uniform Civil Code

The Law Commission of India has periodically examined the issue of the Uniform Civil Code (UCC) and its implications for Indian society. Some notable observations made by the Law Commission are as follows:

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

• This commission expressed the view that implementing a UCC might not be necessary or desirable at this time. Instead, it suggested a series of reforms within various personal laws pertaining to different communities.
• Thus, it recommended amendments and changes to existing family laws with the aim of ensuring justice and equality within all religions, rather than proposing a single uniform law.

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.
• Diverse sections of the population including religious organizations, legal experts, policymakers, and civil society groups have been asked to furnish their views regarding the feasibility, implications, and potential framework for a UCC.

Arguments in Favour of Uniform Civil Code

Based on the above-discussed discourse and the opinion of the experts, the following arguments can be put forth in favor of implementing a Uniform Civil Code:

• Simplifies Legal System : Having one set of laws for all will simplify the personal laws that are at present segregated on the basis of religious beliefs. This, in turn, would simplify the legal framework and the legal process.
• Promotes Equality : A UCC aims to ensure that all citizens of India, irrespective of their religion, are treated equally under the law. Thus, it will help promote the ideal of equality as envisaged in the Preamble.
• Promotes Secularism : A UCC would help towards achieving a secular state where the law is the same for all, regardless of religion. Thus, it would help promote the ideal of Secularism in the country.
• Promotes Gender Equality and Women Empowerment : The current personal laws of different religious communities put women in a disadvantageous position in matters related to marriage, divorce, inheritance, and property rights. Implementing a UCC would ensure equal treatment and opportunities for women in these areas, thus promoting the cause of Gender Equality and Women Empowerment.
• Promotes National Integratio n: A common set of laws for all citizens will promote a sense of oneness and the national spirit. This, in turn, will promote national unity and integrity and help India emerge as a nation in the true sense.
• Promotes Modernization : By doing away with outdated religious laws, a UCC would reflect the progressive aspirations of a modern democratic society based on current values and ethics.
• Elevates Global Image : Adopting a UCC would enhance India’s international image as a progressive and inclusive democracy committed to upholding the principles of equality, justice, and secularism. It would align India’s legal framework with global human rights standards and modern democratic practices.

Arguments Against Uniform Civil Code

Several critics have put forth the following arguments against implementing a Uniform Civil Code:

• Lack of Consensus : There is no consensus among various communities about what the UCC should entail. The lack of agreement on the principles and provisions of a common code makes it difficult to envision a UCC that is acceptable to all.
• Implementational Challenges : The sheer diversity of laws governing different communities makes the drafting and implementation of a UCC a daunting task. Creating a code that adequately addresses and respects the nuances of each community’s laws won’t be easy.
• Threat to Religious Freedom : Implementing a UCC would infringe upon the religious freedom of citizens by imposing uniform laws that may contradict their religious beliefs and practices. This might mean state interference in religious affairs.
• Threat to Cultural Diversity : Imposing uniform laws across such diverse communities would ignore the unique cultural practices, traditions, customs, and sensitivities of different religious groups. Overall, it might go against the idea of diversity.
• Fear of Majoritarianism : There is a concern that a UCC could reflect the beliefs and practices of the majority religion. Thus, it may be akin to imposing a majoritarian view on minorities and hence marginalization of minority groups.
• Threat of Social Unrest : Given the sensitivity around religious and cultural practices, there is a risk that attempting to implement a UCC could lead to social unrest and deepen communal divides.
• 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 encroaching upon the rights of states to legislate on such matters.

Way Forward

• Dialogue and Consultation : There needs to be extensive dialogue and consultation with all stakeholders, including religious communities, legal experts, policymakers, and civil society organizations, to understand concerns and perspectives regarding the UCC.
• Public Awareness and Education : Conducting awareness campaigns and educational programs to inform the public about the benefits and implications of the UCC can help build consensus and garner support for its implementation.
• Piecemeal Approach : A piecemeal approach of codifying the different personal laws and putting them for public debates and scrutiny can be adopted. This will arouse public consciousness towards UCC.
• Inclusivity : A UCC should be drafted in such a manner that respects religious diversity while promoting gender equality and justice is crucial.
• Gradual Implementation : Implementing the UCC in a phased manner, starting with areas where there is least resistance and gradually expanding its scope, can help mitigate concerns and ensure a smoother transition.
• Monitoring and Evaluation : As and when a UCC is implemented, a mechanism should be established for monitoring its implementation, and evaluating its impact on society. This will help make necessary adjustments and improvements and smoothen the process of its implementation.
• Political Will : Political leaders must demonstrate leadership and a strong will to navigate through the complexities and challenges associated with the UCC implementation.

In conclusion, the Uniform Civil Code (UCC) stands as a critical imperative for India’s journey towards social justice, equality, and secularism. Despite some drawbacks and implementational challenges, UCC offers immense potential benefits. From ensuring gender equality and social cohesion to simplifying legal procedures and fostering modernization, the UCC holds the promise of protecting the oppressed as well as promoting national unity and solidarity. 

Read out our detailed article on the Uttarakhand UCC Bill

Frequently Asked Questions (FAQs)

What is the uniform civil code.

UCC refers to a common law being applicable to all religious communities in personal matters such as marriage, inheritance, etc. It aims to replace the different personal laws that currently govern personal matters within different religious communities.

What is the Need for a Uniform Civil Code in India?

The need for a Uniform Civil Code (UCC) in India arises from the imperative of establishing equality, secularism, and national integration in India.

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Devices of Parliamentary Proceedings: Meaning, Types, Applications & Importance

• Nov 13, 2023

Constitutional Aspects Revolving Around Uniform Civil Code: A Critical Analysis

Updated: Mar 11

Authored by Huzaifa Aslam, a 4th-year Law Student at the Aligarh Muslim University

Introduction

The Uniform Civil Code (UCC) is a concept that has long been debated and discussed in the Indian socio-legal landscape. At its core, a UCC seeks to provide a uniform set of laws governing personal matters like marriage, divorce, inheritance, and property for all citizens, irrespective of their religious beliefs or community affiliations. In essence, it calls for the unification of personal laws that currently vary among different religious communities in India, including Hindus, Muslims, Christians, and others.

The relevance of the UCC in India stems from the country’s unique diversity, both in terms of religion and culture. India is a secular nation that upholds the principles of equality and justice for all its citizens, regardless of their faith or background. However, this diversity has led to the existence of distinct personal laws for various religious groups, often resulting in disparities in legal rights, particularly concerning family matters.

The debate surrounding the UCC is multifaceted and touches upon various aspects of Indian society. It encompasses issues related to gender equality, individual rights, religious freedom, and social justice. Advocates argue that Aditya Bharat Manubarwala strongly advocated in favour of the Centre in their proposal of UCC that a UCC would harmonise conflicting personal laws, eliminate gender biases inherent in some of these laws, and promote a more equitable and just legal framework.

On the other hand, opponents contend that implementing a UCC could infringe upon religious freedom and cultural practices, potentially alienating minority communities. They argue that personal laws are deeply rooted in religious traditions and should be preserved as part of the unique fabric of Indian society.

The relevance of the UCC in India cannot be overstated. It represents an ongoing constitutional and societal debate that seeks to strike a balance between uniformity and diversity, between individual rights and community rights, and between tradition and modernity. This critical analysis of the constitutional aspects surrounding the UCC will delve deeper into these complexities, exploring the historical context, constitutional framework, legal and ethical implications, political and social factors, comparative perspectives, case studies, and the challenges and prospects associated with this important issue in India.

Historical Context of the Uniform Civil Code (UCC) Debate in India and Key Milestones

The debate surrounding the Uniform Civil Code (UCC) in India is deeply rooted in the country’s historical, cultural, and political landscape. Understanding its historical context and key milestones is crucial to comprehending the complexity of this ongoing discussion.

Ancient and Medieval India

In ancient and medieval India, personal laws were primarily governed by customary practices and religious texts specific to various communities. Hindu personal laws were influenced by texts like Manusmriti, while Muslim personal laws were derived from the Quran and Hadith. Different communities have their own distinct sets of rules and practices.

Colonial Era (19th and early 20th centuries)

The genesis of the UCC debate can be traced back to the colonial era when British colonial rulers introduced certain reforms related to personal laws. The British government, as part of its “divide and rule” policy, maintained a somewhat hands-off approach commonly referred to as “non-interference” or “non-regulation” towards religious and personal laws, allowing different religious communities to govern their respective personal matters. This laid the foundation for the pluralistic legal system in India.

Hindu Code Bill (1955-56)

One of the first significant milestones in the UCC debate occurred when the Indian government, under the leadership of Prime Minister Jawaharlal Nehru, initiated the Hindu Code Bill in the mid-1950s. This ambitious legislative effort aimed to reform and codify Hindu personal laws, covering issues like marriage, divorce, and succession. The bill faced staunch opposition from conservative groups and religious leaders but eventually passed, marking the beginning of legal reforms in personal laws.

Goa’s Adoption of a UCC ( 1961 )

After Goa’s liberation from Portuguese colonial rule in 1961, the region adopted a Uniform Civil Code. This move was significant as it demonstrated the feasibility of implementing a UCC in India, albeit in a relatively small state.

Shah Bano Case (1985)

The landmark Shah Bano case brought the issue of gender justice and the need for uniformity in personal laws to the forefront. The Supreme Court’s judgment in favour of Shah Bano, a Muslim woman seeking maintenance from her husband after divorce, sparked a nationwide debate on the rights of Muslim women and the reform of Muslim personal law.

Vishwa Hindu Parishad and Babri Masjid Dispute (late 1980s and early 1990s)

The late 1980s and early 1990s witnessed the rise of the Vishwa Hindu Parishad (VHP) and the highly contentious Babri Masjid demolition. These events heightened religious tensions and influenced the UCC debate, as various interest groups called for uniformity in laws, especially in relation to religious practices and places of worship.

Recommendations of the Law Commission

The Law Commission of India has periodically examined and made recommendations regarding the implementation of a UCC. In its report , the Commission has highlighted the need for reforms in personal laws to ensure gender equality and social justice.

Current Debates and Legal Cases

The UCC debate continues to be a prominent issue in contemporary India. Various legal cases, such as the Triple Talaq case and debates around the rights of women in different religious communities, have reignited discussions about the necessity and feasibility of a UCC.

These historical milestones and events reflect the evolving nature of the UCC debate in India. It is a topic deeply intertwined with questions of religious freedom, social justice, and gender equality. The historical context highlights both the challenges and opportunities associated with the implementation of a UCC in a diverse and pluralistic society like India.

The Relevant Provisions in the Indian Constitution Related to Personal Laws, including Articles 44, 25, and 26

The Indian Constitution contains several provisions that are relevant to the discussion of personal laws, particularly in the context of the Uniform Civil Code (UCC). These provisions include Article 44 , Article 25 , and Article 26 .

Article 44 of the Indian Constitution is a Directive Principle of State Policy, and it states that “ The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” This article envisions a UCC that would replace the existing personal laws that vary based on religion and community and aims to promote uniform laws governing various aspects of personal life, such as marriage, divorce, adoption, and inheritance, irrespective of an individual’s religion. While Directive Principles are not legally enforceable, they serve as guiding principles for the government.

Significance :

The UCC seeks to establish equality and justice by eliminating discriminatory practices within personal laws based on religion or community.

Article 44 in the Directive Principles reflects the framers’ vision of a modern, progressive, and unified legal framework for personal laws in India. It emphasises the need to harmonise conflicting personal laws to ensure gender equality and social justice. However, the framers also recognied the complexity of the issue and the importance of respecting diverse religious and cultural practices.

Article 25 (Freedom of Religion)

Article 25 guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion. However, it is subject to public order, morality, health, and other fundamental rights.

Article 25 upholds the individual’s right to religious freedom, ensuring that personal laws based on religion can exist.

The state can intervene to regulate religious practices when they infringe upon public order, morality, or health.

Article 26 (Freedom to Manage Religious Affairs)

Article 26 grants religious denominations the right to manage their religious affairs, including establishing institutions for religious and charitable purposes.

While Article 26 allows religious groups to manage their affairs independently, it does not grant them absolute autonomy. The state can regulate these institutions in the interest of public order, morality, and other fundamental rights.

Delicate Balance between Individual Rights and State Intervention in Religious Matters

The debate over a UCC involves navigating a delicate balance between individual rights and state intervention in religious matters.

Individual Rights

Article 25 guarantees the freedom of religion, allowing individuals to practice their faith and follow their personal laws. Critics of a UCC argue that imposing uniform laws could infringe upon these individual rights, particularly for religious minorities, as it may disrupt their traditional practices and beliefs.

State Intervention

Article 44 suggests that the state should aim for a UCC to promote uniformity and social justice. However, any attempt to implement a UCC should carefully consider the religious and cultural diversity of India and the principles of federalism, respecting the autonomy of religious institutions.

The delicate balance revolves around upholding individual rights to religious freedom while considering the broader goals of equality, gender justice, and social cohesion. Proponents argue that a UCC would promote gender equality and social harmony, while opponents emphasise the importance of preserving religious and cultural diversity. Achieving this balance requires comprehensive legal reforms that are sensitive to the needs and rights of all citizens. The debate surrounding the UCC remains a complex and multifaceted issue in India’s legal and social landscape.

Challenges and Prospects

Implementing a Universal Civil Code (UCC) in India is a complex and contentious issue, fraught with various challenges and obstacles. These hurdles span legal, social, and political dimensions:

Religious and Cultural Diversity

India is a highly diverse country with multiple religions, cultures, and traditions. Implementing a UCC that respects this diversity while providing a uniform legal framework is a significant challenge.

Constitutional Amendments

To implement a UCC, India may need to amend various provisions of its constitution. This requires significant political consensus and effort, which can be difficult to achieve.

Religious Opposition

Many religious groups and leaders may oppose a UCC on the grounds that it could interfere with their religious laws and customs. This opposition can lead to social and political tensions.

Political Divisions

The issue of a UCC often becomes politicized, with different political parties taking varying positions. Achieving bipartisan support for such a significant legal change is challenging.

Legal Complexity

Drafting a comprehensive UCC that covers personal laws related to marriage, divorce, inheritance, and more while ensuring fairness and equity is legally complex and requires careful consideration.

Gender Equality

One of the goals of a UCC is to promote gender equality. However, achieving this may face resistance from traditional and patriarchal norms prevalent in some communities.

Public Opinion

Public opinion on a UCC is diverse, and there may be resistance from segments of the population who fear the loss of their cultural and religious identity.

Enforcement and Implementation

Even if a UCC is enacted, its effective enforcement and implementation can be challenging, especially in remote or culturally conservative areas.

International Obligations

India has international obligations under various human rights conventions. Implementing a UCC must align with these obligations, adding complexity to the process.

Judicial Backlog

Implementing a UCC could lead to an increase in legal disputes as personal laws are standardized. India already faces a significant backlog of cases, and this could exacerbate the problem.

Socioeconomic Impact

Changes in personal laws can have socioeconomic implications, particularly for vulnerable groups. Ensuring that a UCC doesn’t disproportionately affect marginalized communities is crucial.

Consultation and Consensus- Building

Achieving consensus among diverse stakeholders, including religious and cultural leaders, legal experts, and political parties, is a major challenge.

Education and Awareness

Educating the public about the benefits and implications of a UCC is essential for its successful implementation.

Landmark Legal Cases Related to Personal Laws and the UCC: Highlighting Their Significance

Several landmark legal cases in India have had a significant impact on the debate surrounding personal laws and the Universal Civil Code (UCC). These cases have addressed issues related to gender equality, religious practices, and the need for uniformity in personal laws. Here are some notable cases:

This is one of the most famous cases related to personal laws and the UCC. Shah Bano, a Muslim woman, sought maintenance from her husband after being divorced through the Islamic practice of triple talaq. The Supreme Court ruled in her favour, recognising her right to maintenance under Section 125 of the Criminal Procedure Code, irrespective of her religion.

The case sparked a nationwide debate and led to the passage of the Muslim Women (Protection of Rights on Divorce) Act in 1986, which limited the application of Section 125 in cases of Muslim divorce. This case highlighted the need for reforms in Muslim personal laws.

Mary Roy Case (1986)

In this case, Mary Roy, a Christian woman from Kerala, challenged the discriminatory provisions of the Travancore Christian Succession Act, which favored male heirs in matters of inheritance. The Supreme Court ruled in her favor, holding that gender discrimination in inheritance laws violated the constitutional principles of equality.

This case set an important precedent for gender equality in personal laws and contributed to the broader discourse on uniformity in personal laws.

Danial Latifi Case (2001)

This case involved issues related to the maintenance of Muslim women after divorce. The Supreme Court emphasised that Muslim women have the right to claim maintenance beyond the iddat period (the period of waiting after divorce) under Section 125 of the Criminal Procedure Code.

The case reaffirmed the principle that gender justice and equality are paramount and that personal laws should not infringe upon these principles.

Sarla Mudgal Case (1995) and Lily Thomas Case (2000)

These cases dealt with the practice of bigamy among Hindu men who converted to Islam to marry another woman without divorcing their first wife. The Supreme Court held that such conversions for the sole purpose of bigamy were unacceptable and not protected by the freedom to practice religion.

These cases raised questions about the need for uniformity and reform in personal laws to prevent misuse.

Triple Talaq Cases (2017)

A series of cases challenging the practice of triple talaq (instant divorce) in Islam led to a landmark judgment by the Supreme Court in 2017. The court declared the practice of triple talaq unconstitutional, stating that it violated the rights of Muslim women.

This judgment was seen as a significant step towards reforming Muslim personal laws and ensuring gender equality.

Comparative Analysis of India’s Approach to Personal Laws with Other Countries That Have and Do Not Have a UCC

India’s approach to personal laws is unique in its complexity due to its diverse religious and cultural landscape. Let’s compare India’s approach to personal laws with examples from countries with or without a Universal Civil Code (UCC) and analyse the lessons India can learn:

Countries with a UCC or Uniform Personal Laws

Turkey, historically a Muslim-majority country, adopted a UCC in the early 20th century under Mustafa Kemal Atatürk’s leadership. The UCC abolished Islamic legal provisions and introduced a secular legal system.

Lesson for India : Turkey’s experience shows that a UCC can be implemented even in a predominantly Muslim country, emphasising secularism while respecting religious diversity.

Tunisia, another Muslim-majority country, implemented a UCC in 1956, making significant reforms to personal laws, including women’s rights in marriage, divorce, and inheritance.

Countries without a UCC or Uniform Personal Laws

United states.

The United States does not have a UCC. Instead, it follows a system of state-specific family laws, leading to variations in marriage, divorce, and inheritance laws across states.

Lesson for India : The U.S. experience highlights the challenges of legal complexity and inconsistencies when personal laws are not standardised at the national level.

United Kingdom

The UK has a diverse population with various religious communities, but it does not have a UCC. It allows religious arbitration councils, such as Sharia councils for Muslims, for family matters, which operate parallel to the legal system.

Lesson for India : The UK’s approach illustrates how countries can accommodate diverse religious practices while maintaining a secular legal framework. However, it raises concerns about the potential for parallel legal systems and ensuring individual rights are upheld.

Canada, known for its multiculturalism, respects religious and cultural diversity. It does not have a UCC but ensures that its legal system is secular and protects individual rights.

Canada’s approach highlights the importance of upholding secular principles while respecting cultural and religious diversity.

Lessons for India

Secularism : India can learn from Turkey and Tunisia, where secular principles guided the implementation of UCC while respecting religious diversity.

Gender Equality: International experiences show that implementing a UCC can be a means to advance gender equality and women’s rights.

Complexity and Inconsistency: India can learn from the U.S. about the challenges of legal complexity and inconsistencies when personal laws vary by region.

Accommodating Diversity: The UK and Canada demonstrate how to accommodate religious and cultural diversity while maintaining a secular legal framework. India can explore similar models that respect diversity but emphasise secular laws.

Legal Oversight: India should consider the potential for parallel legal systems, as seen in the UK, and ensure that religious arbitration does not infringe upon individual rights.

Balancing Cultural Sensitivity and Human Rights: India can draw lessons from countries that have found a balance between cultural sensitivity and upholding human rights and equality under the law.

India can benefit from studying international experiences to inform its approach to personal laws and the ongoing UCC debate. The key challenge lies in finding a balance that respects cultural and religious diversity while upholding secular and equitable legal principles.

The Constitutional Aspects Revolving Around the Uniform Civil Code highlights the tension between the principles of secularism and individual rights on one side and the preservation of religious and cultural diversity on the other. The debate revolves around how to reconcile these constitutional aspects while ensuring justice and equality for all citizens.

The implementation of a UCC is often a politically contentious issue. Political parties may exploit this debate, and it can lead to polarisation and social unrest. Critics argue that a UCC may infringe upon the religious freedom of minorities by imposing secular laws that conflict with their religious practices and customs. For some minority groups, religious and cultural practices are closely intertwined. Implementing a UCC could potentially erode traditional customs, raising questions about the preservation of cultural heritage. Depending on the existing legal framework, implementing a UCC may require amendments to the constitution, which can be a complex and time-consuming process. To address the concerns of religious and cultural minorities, it’s crucial to engage in extensive consultations and consider their perspectives during the drafting and implementation of a UCC.

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3 Comparative Lessons and the Case of India

• Published: April 2015
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This chapter analyses the case of India in depth. It explores the role of community law in the personal law of India while providing a constitutional and social context as a backdrop. Particularly, secularism in the Indian Constitution is discussed alongside Article 44 provisions. The chapter then explores the issues predicted to arise in securing a uniform civil code, such as multiculturalism, fear of a Hindu Code, encroachment on freedom of religion, other preferred Indian approaches to religious issues, and the court’s role in securing the code. Further, it introduces possible models and the preferred model of establishing and implementing a uniform civil code, including such details as the church-state models, the elements of the uniform civil code, the gradual implementation of the code, and policy considerations.

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14 Uniform Civil Code

Debjani Chakravarthy

Introduction

Uniform Civil Code, a directive principle in the Indian Constitution has been the theme of one of the most intense, intriguing and widespread debate that emerged in India‘s public life right from the juncture that the constitution was adopted in 1950. You may have heard about the issue of Uniform Civil Code (henceforth, UCC) in the recent statements by the Jamiat-e-Ulama Hind (JUH) and All India Muslim Personal Law Board (AIMPLB) about how religious laws are a matter of religious freedom. A country with a secular constitution such as India is expected to uphold religious freedom as well as social justice. In this chapter we will learn about the UCC; its history and the debates surrounding its (non) implementation; the issue of gender and law in India—and the controversial question of how to balance religious and personal freedom as well as secularism and social justice.

Directive principles in the constitution are those provisions that are required to be taken into account by the state while making legislations, plans and policies. However these principles are non-justiciable, unlike fundamental rights, that is, if they are infringed in any way by the state, no judicial remedy is available to the citizens. In case of The Fundamental Rights embodied in Part III of the Constitution— encroachment of such rights are subject to judicial remedy. The rights of the citizen in the context of the directive principles may be exercised in an indirect way. The citizens are expected to treat the directive principles as yardsticks of a government‘s performance while expending their right to vote. The directive principle of UCC appears as Article 44 in the Indian constitution, advising the state to enact a uniform, undifferentiated set of civil laws throughout ‗the territory of India.‘ It reads:

The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.

The issue of UCC is closely tied to the operation of democracy in India, the formation of nationalist discourses, and the disavowed continuity of both these phenomena with the ideological and administrative apparatus of colonial rule. It also— as you will see— represents the interface of gender issues with democracy, citizenship and formal equality.

Section 1: The Legacy of Colonialism and the Civil Code

Colonialism is project and practice of domination—mostly by European/Western/White powers—of land, peoples, and cultures. Indian administrative and legal systems, as well as the idea of Indian democracy have been largely derived from the British Colonial State. This is not to suggest that this derivation or inheritance have been uncritical and uncontested. Cultures of anti-colonial resistance thrived in the British era and thrive today. The concept of colonialism has been expanded to include systems of domination that marginalize large sections of the population based on caste, gender, religion, sexuality, language, location – and other realities. Thus, the notion of intersectionality—of identities and politics—is essential to understand the evolution and issues surrounding the UCC. You can refer to the module on Intersectionality theory for a better understanding. UCC is not just a legal issue; it is a matter of intersecting identities and ideologies of gender, religion, and caste.

If you think that the UCC is a good idea, you might wonder why the provision on enacting one was placed as a directive principle and not a fundamental right. Tenets of Liberal democracy suggest that every citizen of a nation state must have equal legal rights. Yet in the Constitution, which lays down the terms of democracy in India, a distinction is made between rights in the public and rights at the private sphere. This distinction has been inherited from the colonial system and its lawmaking.

Colonial law first distinguished between criminal and civil law and placed laws regarding family practices, such as, marriage, divorce, adoption and inheritance within civil law. All laws other than family laws were universally applicable to all subjects. However, family laws were called personal laws and were codified according to religious tenets—a task entrusted to Hindu and Islamic religious authorities. The colonial state also drew a sharp distinction between the private and public sphere. In the former, structures of traditional religion and family life were allowed to remain without any state intervention (to stop any oppression of women and children). Interestingly, the colonial state used gender justice and women‘s issues as a reason to justify colonial rule.

For the public sphere, strict universal laws about trade/commerce, criminal offences, and ownership of property were instituted, so that civic and revenue administration becomes easier. The British state had also formed alliances with religious authorities (such as Brahmans/ Savarna castes) to facilitate indirect  rule and social control. The notion of ―majority‖ and ―minority‖ for instance, is a framework of assessing Indian pluralism constructed during the colonial period and is a part of the dominant discourse of colonial modernity. This discourse assigns identities based on religion to various communities for the purposes of maintaining administrative order within a deeply heterogeneous empire. This approach undermines the vast diversity of society in India with its plurality of cultural practices— relegating it instead to a society of just a few contending religious groups.The British institutionalization of tribal identities follows the same logic. ―The definition of tribes as culturally distinct—from Hindu society as well as from one another—hinged on a catalog of cultural, racial and linguistic traits according to which they were labeled and classified. The anthropological gaze constructed the ‗tribes‘ as unitary, well-integrated, and timeless wholes, unpolluted by contact with the larger civilization until the advent of colonialism (Upadhya 2011, 268).‖ The question of tribes or tribal rights is rarely raised in the debate on UCC.

Thus the British colonial state divided the legal domain into Criminal and Civil, further dividing the ‗civil‘ into personal and fiscal laws. It codified personal laws with the help of religious authorities. Traditional family laws of Hinduism (like Mitakshara and Dayabhaga ) and Islam (Sharia laws derived from the Quran and the Hadith ) were unified and organized within codes. The state envisioned gender justice through passing of criminal laws prohibiting atrocious customary practices on women. However, the state was disinterested to reform the religious family laws which are often inequitable and unjust to women. This is related to the way in which colonialism differentiates the rights of individuals in public and private domain. Colonial ideology imposed on Indian society followed the logic of divide-and-rule.

So you can imagine how instead of eradicating social stratifications based on gender and caste, these divisions were carefully nurtured by the state to ensure status quo and prevent mass rebellion. This hands-free policy helped an initial commercial agency such as the East India Company to assume power over vast territories and colonize them substantively and epistemologically. Law as well as strengthening the hand of Brahmanism was a chief vehicle of this paternalistic control. There was constant effort towards standardizing law for the benefit of the newly introduced colonial juridical structure.The uniformity of colonial logichas left its indelible smear all over the Indian constitution and the debate over UCC.

Fast forward to the era of freedom struggle and caste/religion identity politics of the 1930s and 40s: when the constitution was being framed, self-identified secular nationalists recognized the differentiation of rights based on caste/tribe and religion. Realizing that such divisiveness would hamper the administration of formal equality and is central to the notion of liberal democracy—the Constituent Assembly envisioned a Uniform Civil Code as a common legislation that would subject all citizens in India to the same code or set of civil laws regardless of their religious, communal, caste, racial, or ethnic identities. They also recognized that India had multiplicity of communities with distinctive religious, linguistic, and local traditions. Yet a single, unified national identity had to be shaped out of these diversities for the purposes of validating a new sovereign nation. Thus they demanded that a civil code be created such that no community suffers disadvantages on account of the law having a religious orientation. Not all the members of the Constituent Assembly accepted this position however—thus a uniform civil code to govern family laws could not be consensually introduced in the list of fundamental rights.

After independence, the judiciary was named the mouthpiece of Indian Constitution. This judiciary used the nationalist- welfarist approach to the question of gender justice. In cases pertaining to personal laws, the Supreme Court interpreted the religious personal laws in a way that is fair to women. At the same time it kept on advising the state to implement article 44 and have common family laws for all religious communities. The court reasoned that having a UCC would affect gender justice as well as national unity. However, the independent state maintained the colonial tradition to address women‘s issues through passing prohibitive laws. The Criminal Procedure Code of 1974 is a prime example of this. As for Uniform Civil Code, despite efforts, the state till date has not been able to frame it, let alone implement it.

Section 2: The Ongoing Debate on Uniform Civil Code

Any political debate in independent India such as those on UCC is couched in terms of binaries, in line with the discourse of colonial modernity. The debates on Uniform Civil Code have always been polarized around the twin axes of state-community, tradition-modernity, and religion-secularism: the binaries of colonial modernity. The positions articulated by the judiciary, the Hindu fundamentalists  and the feminist movement on the civil code remain locked in the discourse of colonial modernity. We will learn a bit more on colonial modernity in section 3.

The colonial government declared the setting up of a Constituent Assembly for independent India— this committee was first summoned in 1946. Initially an advisory committee was set up which would formulate the articles of the constitution. This advisory committee was further divided into three sub committees on 1) Fundamental Rights 2) Minorities, 3) Tribal and Excluded areas. In March 1947, in spite of compelling efforts by Dr.B.R.Ambedkar, MinooMasani, RajkumariAmrit Kaur and Hansa Mehta (members of the subcommittee on Minorities) a provision of Uniform Civil Code that was conceptualized as a unifying and egalitarian force, was decided by the ‗majority‘ to be outside the scope of fundamental rights. The Uniform Civil Code was to ensure the unified legal subject or citizenship that could resolve legal conflicts on account of presence of various religions and religious laws. The provision of Uniform Civil Code was finally put, not in the justiciable provisions of fundamental rights, but in the non-justiciable Directive Principles.

The first Prime Minister of an independent India Jawaharlal Nehru and the first law minister Dr. B. R Ambedkar continued endorsing the UCC as an instrument of modernization, secularization, and national integration. Various legislations were enacted in the 1950s to reform Hindu Personal law. A comprehensive Hindu Code Bill, dealing with marriage and divorce, minority and guardianship, maintenance and adoption and the mitakshara joint family issues was introduced in the constituent assembly by Dr. B. R Ambedkar. This was met by furious objections by legislators and nationalist leaders such as Sardar Patel, J. B Kripalani and Rajendra Prasad. The latter who was the first president of independent India expressed his intention to ‗reserve presidential assent‘ to the Bill. (Jayal 1999, Sen 2000)

At this stage the supporters as well as dissenters of the Hindu Code Bill invoked the UCCoften as the only legitimate device of reform. Those in favor of Hindu personal law reforms referred to the necessity of securing comprehensive, uniform, standardized laws over orthodox, religious and traditional ones, as the deliberations on the UCC the in the constituent assembly had suggested. Many dissenters reasoned that reforming only Hindu laws and leaving Islamic and other laws untouched amounts to ―minority privilege.‖ Demand for Uniform Civil Code became a potent tactic for stalling  the Hindu Code Bill. There were many court cases that churned up the issue of the UCC but the Mohammed Ahmed Khan vs. Shah Bano Begum Case of 1985 was the most important case that really recharged the debate.

Mohammed Ahmed Khan, the appellant to Supreme Court had divorced the respondent, his wife, Shah Bano by an irrevocable triple talaq. In April 1978 Shah Bano filed a petition under section 125 demanding maintenance. The appellant‘s defence to the respondent‘s petition was that she had ceased to be his wife. Also, he had paid maintenance to her at the rate of Rs. 200/-for two years and had deposited a sum of Rs. 3000/- in the court as Mehr (dower) during the period of iddat as per 127 (3) (b) of Islamic Personal Law. In August 1979 the Magistrate directed Ahmed Khan to pay Rs. 25/- to respondent by way of maintenance. In July 1980, in a revisional application filed by Shah Bano High Court of Madhya Pradesh enhanced the amount of Maintenance to Rs. 179.20 per month. Ahmed Khan filed an appeal before the Supreme Court by special leave claiming that Section 125 of the Criminal Procedure Code would not apply to him as a Muslim. The Court found that two previous decisions (in the Bai Tahira vs. Ali Hussain FidalliChothia case of 1979, and Fazlunbui vs. K Khader Vali case of 1980) upheld that a Muslim wife can apply for maintenance under section 125. Yet a bench consisting of Justice MurtazaFazal Ali and Justice A. Varadarajan considered that those cases were not correctly decided. As a result they referred the appeal to a larger bench by an order dated February 3, 1981.

Now a reconstituted Supreme Court Bench headed by Chief Justice Y. V Chandrchud on 23rd April 1985 dismissed the appeal, confirming the judgment of the Madhya Pradesh High Court, leaving it open for the respondent to apply for an enhancement of maintenance allowance. The Supreme Court in effect ruled that Section 125 overrides the Muslim Personal Law if there arose any conflict between the two. There need be no conflict, the judgment asserted, citing and interpreting various ayats and suras of the Koran that Muslim husbands had to provide for their divorced wives in case of their indigent situations.

Apart from that the Court pronounced:

―It is also a matter of regret that Article 44 of our constitution has remained a dead letter. …there is no evidence of any official activity for framing a common civil code for the country. …. A common civil Code will help the cause of national integration by  removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by, making gratuitous concessions on this issue. It is the state which is charged with a duty of securing a uniform civil code for its citizens of the country and unquestionably has the legislative competence to do so.‖

The judgment in favor of Shah Bano was perceived as a judgment against Muslim Personal Law. The issue of a divorced woman‘s protection from destitution and the meager sum of alimony involved was buried under the waves of resentment against the judgment— perceived as an attack on Muslim religious identity. This case became pivotal in redefining religious identities and majoritarian politics. In the face of the overwhelming controversy totally altering the nature of the debate, Shah Bano publicly retracted from the Supreme Court Judgment for the cause of being a devout Muslim first.

Countrywide agitations led by the Indian Union Muslim League, the Muslim Personal Law Board, Jamat-I-Islami, and Jamat-al-Ulema worried the Congress Government led by Rajiv Gandhi. Troubled by the prospect of loss of Muslim support, The Muslim Women‘s (Protection of Right in Divorce) Act 1986 was passed in a hurry, despite protests from women‘s groups and social-justice-consciouspeoples from all religious affiliations. The issue was also espoused by rapidly rising communal groups as a means to impose Hindutva hegemony. With the passing of the Shah Bano judgment and the Muslim Women‘s (Protection of Right in Divorce) Act the issue of personal law and the Uniform Civil Code became deeply entrenched in combative communal politics.

The issue of gender justice was swept aside. The BJP emerged as a strident critic of Rajiv Gandhi‘s actions during the Shah Bano controversy that overturned a ‗secular‘ Supreme Court ruling. It is important to note here that the BJP as well as the RSS have always self-consciously based their contentions in terms of democracy, modernity and secularism. This is related to the problematic of secularism in the Indian Constitution which can be a tool of minority oppression. If you have followed politics over the last two decades you know that both the Congress and the BJP have twisted around the notion of secularism to practice divisive communal politics.

Today, many women‘s organizations view the possibility of a UCC as a dubious instrument of Hindutva/Brahmanicalfundamentalist domination. The movement‘s focus has shifted from demanding legislation from the state to promoting women‘s participation in the processes of the state and the  political economy; being part of legislative and other decision making. It is recognized that though autonomous women‘s movement has been greatly able to render women‘s issues visible and moot, and such a movement is important in its own right –formal political participation remains important. Feminists have begun to examine closely the relationship between women, state and legislation. They have identified the problem in the context of the state‘s ambivalent treatment of women as rights-endowed citizens and gendered subjects enmeshed in patriarchal social relations. The root of the problem seems to reside in the nation‘s constitution that is unable to decide between the import of women‘s rights and (religious) community rights. Therefore, as Anupama Roy opines, ―women‘s lived experiences have had therefore, to contend with various superscriptions and circumscriptions. The idealized super scribed woman—pure chaste with superhuman qualities purging the body politic— ensnares women within normative forms of behaviour. A unified category of women—-a collective body of women, as agents and subjects of liberatory change—proves elusive as it attempts to homogenize disparate entities, ironically within an abstracted category of woman.‖ (Roy 2005: 229)

There is also a realization that passing more and more laws is not a solution to women‘s problems. This skepticism is captured in Flavia Agnes‘ words, ―If Oppression could be tackled by passing laws, then this decade would have to be adjudged a golden period for Indian Women (Agnes 1992, 26).‖ Law and awareness raising goes hand-in-hand; laws do not change minds and often cannot cause a dent in centuries of heteropatriarchal colonial Brahminical social structure. Gender justice is also a matter of intersectionality—we cannot think of a uniform category of ―male,‖ or ―female‖ unless we understand that these categories represent lived experiences of people negotiating not just structures of gender but also caste, class, religion, language, ability, and geo-political location. The experience of a Muslim (or Hindu, or Christian, or Sikh) woman living in various parts of the country (think about the variations in urban and semi-urban areas, the experience of living in deeply contested territories in Kashmir and the North-East, what it means to be a migrant worker, a Dalit student, a ―North Indian‖ in South India and vice-versa—what these categories and labels mean) will be very different. Laws are not innocent or neutral; they often represent the political will at the heart of a ruling regime, they often represent a political agenda more than ―justice.‖  With that, let us discuss some basic concepts that will help you understand the debate on UCC better.

Section 3: Basic Concepts

Civil Code: Civil code is understood as law that deals with ―private‖ matters. The notion of a civil code arose from the way the colonial state intervened in Lawmaking in India. They started by making a sharp distinction between criminal and civil laws. Within civil laws, a distinction was made between family laws and fiscal laws. Criminal and fiscal laws replicated English laws while codification of family laws was left to religious experts— to be based on traditional/religious laws.―Civil Code‖ is thus the code name for personal laws: described in entry 5 of list III of the 7th Schedule of the Indian constitution as laws that govern—―…Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition.‖ Women are disproportionally affected by family/personal laws in any hetero-patriarchal society—India is no exception. UCC, as you know is a directive principle in the Indian Constitution that directs the state to ensure that civil code in India in the same for all citizens. This is a highly contested position where issues of gender, citizenship and human rights are sometimes swept under the rug and the dynamics of electoral politics and vote banks, the rise of Hindu fundamentalism and prospects of coercive majoritarianism loom large. There is a deep discontent in countries such as the United States about male and misogynist lawmakers creating laws about women‘s bodies and lives—without any consultation, feedback process, or empathy. UCC and its fraught history in India show a similar trend.

Commentators have variously referred to the Uniform Civil Code as ‗Common Civil Code‘ or ‗Equal Personal Laws‘. In legal terminology, a code means a collection or compendium of various laws relating to a particular subject field. The Criminal (procedure) Code, The Indian Penal Code, and the Civil (Procedure) Code, are all examples of codes.

Colonial Modernity :The notion of colonial modernity is important in understanding how the UCC debate has unfolded. Colonial modernity is usually imposed by the colonizer/imperialist entity on spaces colonized for purposes of social and governmental control. In British India this manifested itself in introduction of English and professional education, law, comprehensive methods of revenue collection, new methods of agriculture aimed solely at farming cash crops, and growth of the secondary and tertiary sector in the economy was imposed over the colonized space in the name of modernization of economy and polity. What justified this process of modernization and seepage of modernity was an unimpeachable claim to rationality.

Patel (2006) states, that colonial modernity approached the society in India with two assumptions:

The first relating to the distinction and disjunction of those groups living in India from the spatial cultural structures of the West and simultaneously creating within India spatial cultural zones. The second was the assertion of the boundedness of these groups (now called castes and tribes constructed in an internally structured hierarchy) by a cultural attribute of spirituality‘ emanating from Hindu civilization. A territory was given a religious attribute: India and Hinduism now collapsed into each other.(Patel 2006: 384)

The colonial state sought to divide the society into existing religious communities encouraging the imposition of traditional laws in ‗personal‘ and family matters. It encouraged Brahmanism and its oppressive structures that affect lives of women, Dalits , and minorities. With the separation of the penal and personal, the family was officially affirmed as a sacred, private site— left to hetero-patriarchal discretion and customs. This sacred secrecy of the family without any state intervention or regulation conveniently left out the question of gender rights and redressal.

Today, colonial modernity continues in jurisprudence, democracy, and discourses of modernity and nationalism within the independent nation state that often takes on the role of the colonizer. Today, whether the debate is for or against UCC— carried out by feminist scholar-activists, or religious fundamentalists, or the judiciary— remain locked in the binary of ―us‖ and ―them.‖ There is little space for imagining new concepts and alternatives.

Feminist Jurisprudence: Feminist legal studies or feminist jurisprudence is emerging as a relatively new area of study in India. It is legal philosophy from a feminist perspective— interrogating the creation and development of laws and legal structure. Feminist jurisprudence places the principles of legal theory and practice on a common canvas to assess its relationship to gender equity and women‘s day-to-day lives. ―Law has developed over time in the context of theories and institutions that are controlled by patriarchal values and reflects its concerns. Gender-sensitive feminism seeks to correct the imbalance and unfairness in the systems of knowledge, which have excluded attention to the circumstances of women‘s gendered lives even on issues that intimately affect their lives (Agnes 2005, 1859).‖ Feminist jurisprudence and feminist legal studies seek to undermine the liberal-universalist claim that law is an objective,  neutral truth, and exposes its role in systemic oppression of women. However many scholars also agree that law can offer spaces of resistance within which women can challenge oppressive social relations. The autonomous women‘s movement(s) in India often approach the issue of UCC from the standpoint of feminist jurisprudence.

Conclusion (Summary): Gender Justice or Religious Freedom?

It might seem to you from the previous sections that UCC is a matter of gender justice vs. religious freedom. That the implementation of UCC may tamper with many people‘s religious freedom—provided we think of laws originating in religious text that are in use in a constitutional democracy as a matter of accommodation and preservation of religious freedom/diversity. What do you think?

It is easy to see why many people and groups have thought so. Often under the guise of secularism, women‘s bodies and lives have been controlled and their religious freedoms taken away. In 2011, France, for instance –banned public use of veils for Muslim women. Belgium and some cities in Spain have a similar law. In the 80s, Turkey‘s secular state enacted a ban on headscarves and full robes. Women in these countries have had to fight for their right to wear hijab and practice religion—a veil does not automatically signify oppression or compliance. Taking away of the veil can signify taking away of rights. The BJP seized the issue of Muslim Women‘s (Protection of Right in Divorce) Act to demonstrate the Congress regime‘s letdown to provide true legal equality to male and female citizens. This led to the women‘s movement‘s realization that the question of gender justice has really dissipated in a vortex of communal-patriarchal appropriations of the UCC debate. Groups that are concerned about the repressive/oppressive nature of Muslim family laws are often silent about the extremely oppressive nature of the Caste system that has had long term effect on innumerable people‘s safety, rights, and well-being. The so called secular campaign for UCC has provoked religious communities in India which in turn has put gender justice in jeopardy. Flavia Agnesexplains:

It was not surprising that the demand for uniform civil code raised by the women‘s movement aroused contradictory response from the fundamentalists depending upon whether they hail from the majority of the minority communities. It was opposed strongly by the Muslim and Christian religious leaders who perceived it as a threat to their cultural identity and a violation of the fundamental right guaranteed by the Constitution. But it became an important plank upon which hate for Muslims could be ignited. Through it, Hindu communal organizations were not only able  to gain popularity among Hindu males who envied their Muslim counterparts the freedom to practice polygamy; they could also pose as the champions of the cause for women (Agnes (2008, 503).

Thus the notion of religious rights guaranteed by the Constitution has become an issue for the Religious Right to spread a culture of majoritarianism and minority oppression. Gender justice and women‘s rights are not exactly priorities for them. Gender justice is not just a matter of personal laws. That there is no similar hue and cry about other directive principles like equality of educational and employment opportunities point to the fact that the question of both law and uniformity has enormous political potentials and hence the debate onUCC remains— followed by that on reservation— the single most enduring debate in Indian public life. Today the judiciary as the mouthpiece of the constitution and the Hindu Right as the self-proclaimed mouthpiece of all Indians have kept the debate alive.

Anveshi Research Center for Women‘s Studies, an organization committed to gender justice and a longtime critical feminist voice in the debate states its position on the UCC:

The UCC model of legislation, we argued, seemed oblivious to the politics of law reform, implementation issues, women‘s needs and the Hindu majoritarian agenda. The questions that the Anveshi law intitiative is engaged with are: the conceptual rigidities that attend to translating women‘s needs/concerns into governmental categories; the relation between gender/minority/caste and law; and the problems related to the preeminence of the rights framework in thinking and activism around violence.

In a society as diverse and plural as India Uniform Civil Code must not be used as a tool for convenient and effective governance by dominant groups who prefer docile subjects to rights-conscious, active citizens. To carry out governance in a sensitive manner begins with the recognition that difference and pluralism is no deterrent for justice and integration. Conversely, uniformity and homogenization does not necessarily root out injustice and dissentions.

If the Uniform Civil Code is implemented, there should be an open legal space for reasonable individual choices. As Conrad (1995) points out, that the implementation of a common civil code must imply that the religious family laws are not ―reformed out of existence.‖ An individual may find some elements in these laws that define her rights more suitably than the uniform code. Under such circumstances there must be provision to choose between family laws and a civil code. This choice takes into account individual rights, and also implies that there need be no religious-national unifying principle.

It is necessary for the state to intervene as an arbiter to ensure that no matter what cultural practices are being followed; there is no violation of rights of a citizen, for the woman, or man or people that do not identify with the gender binary. Beyond that, state, and law must not dictate in what ways citizens should maintain sexual relationships (including relationships outside the hetero-patriarchal norm), marry (or cohabit without  marriage),  divorce/separate, adopt,  bequeath and  inherit.  It  should  be  outside  a democratic state‘s scope to define what is normal and what is not in matters of personal/sexual choices. Its function rather than to dictate terms of personal life, must be to ensure that there is  no unfair exploitation rising out of power asymmetry within personal spaces of citizens. The state protects citizens‘ rights through making and enforcing law— instead of using law as an instrument to dominate historically marginalized groups.

Bibliography

• Agnes, Flavia (1994) Protecting Women against Violence? Review of a Decade of Legislation, 1980-89. Economic and Political Weekly 27 (17) 19-33.
•  ____________________(1999)Law and Gender Inequality. New Delhi: Oxford University Press.
• ____________________(2005) To Whom do Experts Testify? Ideological Challenges of Feminist Jurisprudence. Economic and Political Weekly 40 (18) 1859-1866.
• ____________________(2008) Women‘s Movement within a Secular Framework: Redefining the Agenda. In Women’s Studies in India: A Reader. Mary John (ed.) New Delhi: Penguin Books India.
• Anveshi Law Committee (1997) Is Gender Justice Only a Legal Issue? Political Stakes in the UCC Debate (Report on Uniform Civil Code) Economic and Political Weekly XXXII (9)
• Anveshi – Research Centre for Women’s Studies. http://www.anveshi.org.in/ Accessed February 22, 2016.
• Basu, Durga Das (1996) Uniform Civil Code for India . New Delhi: Prentice-Hall of India Private Limited.
• Chakravarti, Uma (2003) Gendering Caste through a Feminist Lens . Calcutta: Stree
• Conrad, Dieter(1995) Personal Law Question and hindu Nationalism in VasudhaDalmia and Heinrich Von Stietencron (eds) Representing Hinduism: The Construction of Religious Traditions and National Identity. New Delhi: Sage Publication.
• Dhagamwar, Vasudha (1989) Towards the Uniform Civil Code . Bombay: N. M Tripathy Private Limited
• Forbes, Geraldine (1996) Women in Modern India. Cambridge: Cambridge university Press
• Galanter, Marc (1989) Law and Society in Modern India. New Delhi:  Oxford University Press
• Graham, B. D. (1990) The Origins and Development of Bharatiya Jana Sangh. U.K: Cambridge University Press.
• Hansen, Thomas Blom (1999) The Saffron Wave: Democracy and Hindu Nationalism in Modern India. New Delhi: Oxford University Press.
• Jaisingh Indira (2005) (ed) Men’s laws, Women’s Lives . New Delhi, Women Unlimited and  Lawyers‘ Collective: India.
• Jha, Shefali(2002) Secularism in the Constituent Assembly Debates, 1946-1950 Economic and political Weekly XXXVII (27)
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Uniform Civil Code (UCC): Pros and Cons in a nutshell

Last updated on July 9, 2024 by ClearIAS Team

The Union law ministry has recently asked the law commission to examine the matters about the implementation of the uniform civil code.

Table of Contents

What is the Uniform Civil Code?

The Uniform Civil Code (UCC) in India proposes to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen.

Is there a provision in the Indian constitution for a Uniform Civil Code (UCC)?

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The constitution has a provision for a Uniform Civil Code in Article 44 as a Directive Principle of State Policy which states that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”

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After its liberation in 1961, Goa retained the Portuguese Civil Code, making it the only state to have a UCC for all religions.

2024: Uttarakhand assembly has passed the uniform civil code bill, hence this becomes the first state in the country after independence to adopt UCC.

• Constitutional Mandate: Article 44 says that the State shall endeavor to secure for citizens a uniform civil code throughout the territory of India.
• Objective: The Bill proposes a common law on marriage, divorce, land, property, and inheritance for all citizens irrespective of their religion in Uttarakhand.
• Provisions of the UCC Bill do not apply to tribal communities.
• Bill aims to regulate live-in relationships.
• Bill prohibits bigamy or marriages with more than one person etc.

What are the Pros of the Uniform Civil Code?

To provide equal status to all citizens.

In the modern era, a secular democratic republic should have common civil and personal laws for its citizens irrespective of their religion, class, caste, gender, etc.

To promote gender parity

It is commonly observed that personal laws of almost all religions are discriminatory towards women. Men are usually granted upper preferential status in matters of succession and inheritance. A uniform civil code will bring both men and women to par.

To accommodate the aspirations of the young population

Contemporary India is a new society with 55% of its population being below 25 years of age. Their social attitudes and aspirations are shaped by universal and global principles of equality, humanity, and modernity. Their view of shedding identity based on any religion has to be given serious consideration to utilize their full potential for nation-building.

To support the national integration

All Indian citizens are already equal before the court of law as the criminal laws and other civil laws (except personal laws) are the same for all. With the implementation of the Uniform Civil Code, all citizens will share the same set of personal laws. There will be no scope for politicization of issues of discrimination or concessions or special privileges enjoyed by a particular community based on their particular religious personal laws.

To bypass the contentious issue of reform of existing personal laws

Existing personal laws are mainly based on the upper-class patriarchal notions of society in all religions. The demand of UCC is normally made by aggrieved women as a substitute for existing personal laws as patriarchal orthodox people still deem the reforms in personal laws will destroy their sanctity and oppose it profusely.

What are the Cons of the Uniform Civil Code?

Practical difficulties due to diversity in India

It is practically tough to come up with a common and uniform set of rules for personal issues like marriage due to the tremendous cultural diversity in India across religions, sects, castes, states, etc.

Read:  Personal laws in India

Perception of UCC as encroachment on religious freedom

Many communities, particularly minority communities perceive Uniform Civil Code as an encroachment on their rights to religious freedom . They fear that a common code will neglect their traditions and impose rules that will be mainly dictated to and influenced by the majority of religious communities.

Interference of state in personal matters

The constitution provides for the right to freedom of religion of one’s choice. With the codification of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.

Sensitive and tough task

Such a code, in its true spirit, must be brought about by borrowing freely from different personal laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality, and adopting expansive interpretations on marriage, maintenance, adoption, and succession by acknowledging the benefits that one community secures from the others. This task will be a very demanding time and human resource-wise. The government should be sensitive and unbiased at each step while dealing with the majority and minority communities. Otherwise, it might turn out to be more disastrous in the form of communal violence.

Time is not yet suitable for this reform

Considering the major opposition from the Muslim community in India over this issue overlapping with controversies over beef, saffronization of school and college curriculum, love jihad, and the silence emanating from the top leadership on these controversies, there needs to be given sufficient time for instilling confidence in the community. Otherwise, these efforts towards common will be counterproductive leaving the minority class particularly Muslims more insecure and vulnerable to get attracted towards fundamentalist and extremist ideologies.

• At the end of the day, a UCC can only emerge through an evolutionary process, which preserves India’s rich legal heritage , of which all the personal laws are equal constituents.
• The codification and implementation of UCC may not necessarily usher in the expected equality among genders and religions.
• Major sensitization efforts are needed to reform current personal law reforms which should first be initiated by the communities themselves.
• Current institutions need to be modernized, democratized and strengthened for this change. Sincere efforts towards women’s empowerment have to be taken for all women of all religions.
• The plural democracy is an identity of modern India. Therefore, efforts should be focused on harmony in plurality rather than blanket uniformity for a flourishing Indian democracy.

Article by: Manjiri Mulye.

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Reader Interactions

March 24, 2017 at 4:09 pm

Can u make an app for hindi medium students in hindi language for ias

April 8, 2017 at 4:03 pm

Please make notes for hindi medium students

April 22, 2017 at 8:03 am

Please make an android and ios supporting application for mobile phone users………..

May 13, 2017 at 6:44 pm

Thanx nation builders…

July 9, 2017 at 11:38 am

Good article

August 21, 2017 at 8:14 am

Uniform civi code is a universal reality .the only grey area is sharia law . Like Hindu law and Christian personnel law ,even in sharia law the sole guardianship of a child below five years of age is the child’s mother alone and if the child’s mother marries another person other than the child’s father before the child attains five years of age loose the guardianship of the child unequivocally and the child is designated an orphan with state taking over the legal guardianship till she opts to choose her biological father as guardian after crossing the child’s five years of age .this clearly shows that all personnel laws are having a common essence . The debate in implementing universal common civil code for all citizens should be completed this year with the introduction of the much awaited Bill in parliament with a provision for sharia laws to prevail incase of a conflict , if a question of law is raised in court and not as a general option for citizens of India which should alone be the civil code .

September 10, 2018 at 11:25 pm

The best i hv site ever used for ias preparation . Detail description and analysis helps in understanding to the depth

March 21, 2019 at 3:10 pm

Very much helpful article….Thank you

September 19, 2019 at 8:04 pm

nice article …. very useful

November 26, 2019 at 12:04 am

Sigi article si khra adum yara UCC gidi.

April 9, 2020 at 6:34 pm

Good informative article

June 15, 2023 at 1:49 pm

Conclusion is utter nonsense. It is very diplomatic conclusion unregard to needs and threats.

July 4, 2023 at 3:30 pm

We don’t require uniform civil ciddi

July 12, 2023 at 11:13 am

You don’t requird uniform civil code . We will not get to rights because of this . We went to live in muslim way only thnxx

July 13, 2023 at 11:30 am

BEFORE IMPLEMENTATION OF THE UCC, BOTH MUSLIM ORGANIZATIONS AND PRESENT GOVERNMENT SHALL MEET TOGETHER TO SEE THE PROS AND CONS OF THE UCC.

February 28, 2024 at 8:05 am

UCC IS AN BREACH FOR THE RELIGIOUS LAWS WE DONT WANT IT RELIGIOUS FREEDOM IS MUST

August 1, 2023 at 11:29 am

Uniform Civil code is a must, and will level the treatment of all citizens as equal, and it can and must be done in a way where the practices of all religions can be respected without gevernmant interference.

August 9, 2023 at 9:44 am

Nice article sir

March 16, 2024 at 3:19 pm

Whether the Uniform Civil Code Uttrakhand 2024 shall apply / govern on the agricultural lands in Uttarakhand.

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THE UNIFORM CIVIL CODE: A COMPREHENSIVE ANALYSIS OF ITS INFLUENCE ON FAMILY LAW AND SOCIAL DYNAMICS

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The Uniform Civil Code: A Comprehensive Analysis of its Influence on Family Law and Social Dynamics

Authors: Lakshay Tyagi & Ayushi Keshari,

LLM (Family Law),

Amity University Noida, u.P.

The UCC is a contentious issue in India, with implications for family law and social dynamics. This paper provides a comprehensive analysis of the UCC, examining its constitutional foundation, judicial observations, and the need for its implementation. It explores the challenges and concerns surrounding the UCC, including religious and cultural heterogeneity, political sensitivity, legal complexity, and societal acceptance. This paper examines the complex issue of implementing a UCC in India, focusing on the implications for family law. It outlines the constitutional basis for personal laws and judicial perspectives on a UCC over the years. The analysis finds that while the Indian judiciary has made obiter dicta observations supporting Article 44 on UCC to promote national integration, there is also recognition of India's diversity and that the mere existence of difference does not imply discrimination. The paper summarizes the Uttarakhand UCC Bill 2024 which banned polygamy and child marriage, aiming to fulfil the BJP's long-standing promise of UCC. Concerns around implications for religious freedom and minority rights are discussed. It is concluded that implementing UCC requires constructive dialogue between stakeholders to uphold individual rights while fostering social cohesion. A balanced approach considering India's heterogeneity is needed. The analysis suggests the Uttarakhand Bill signifies a major step but practical challenges around cultural and religious diversity, politics, law and societal acceptance need thought and collaboration. The paper ultimately argues that while UCC has been backed as an equality and secularism-promoting idea, its realization necessitates understanding the legitimate concerns of minorities while prioritizing national consolidation. India and promote equality, secularism, and a cohesive legal structure for all individuals.

Keywords: Uniform Civil Code, Family Law, Social Dynamics, Constitution, Hindu, Marriage.

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The legal odyssey of the Uniform Civil Code

This article has been written by Hitul Sehgal.

Introduction

“Wisdom alone can take your firm hand towards a common civil code, a more progressive civil code so that we can achieve more brotherhood, more intimacy.” [1]

 -Justice V.R. Krishna Iyer

The preamble of our constitution guarantees us the liberty of thought, expression, faith, and worship. Throughout our constitutional history, the courts have contemplated, scrutinized and expanded upon the meaning of these words. The importance that our state granted to religion while attempting to remain secular, was perhaps the masterstroke of our lawmakers. It was a justified necessity to unite the myriad groups of people that inhabited our country. It will be a huge error to classify this move as mere appeasement, as it helped forge the unique identity of our nation that balances the separation of religion and state, while at the same time respecting the various religions that are a part of it.

However, balancing these two positions has time and again and proved to be rough terrain, full of unforeseen calamities. The unbelievably complex nature of the thousands of religious practices has resulted in a storm of conflicting legal issues, at the heart of which lies the question of a Uniform Civil Code (UCC). The oft-debated provision enshrined in Article 44 of our constitution that states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India [2] ” remains untouched and the position of our Parliament almost unchanged.

What is a Uniform civil code?

In its most rudimentary sense, UCC refers to a unilateral system of civil laws for all citizens of a country. Although this might seem a gross oversimplification, it helps us understand a basic question, that was also alluded to by the father of our constitution Dr. B.R. Ambedkar, in the constituent assembly debates on Article 44 [3] , that if our country already has a Civil Procedure Code that does apply to all civil matters and extends to all citizens, and there exists a Contract act as well as various other provisions in Civil Law such as the Indian Partnership Act that apply uniformly to all our citizens, where exactly does Article 44 endeavors to provide uniformity? The answer being the kaleidoscopically complex provisions of our family laws, and this is where the debate gets heated. The personal laws of the various communities, whose cultural and religious beliefs our constitution guarantees to protect have been scrutinized, codified and legislated into several detailed and sometimes conflicting enactments. Moreover, even in our modern constitutional democracy, orthodox personal laws that originate from ancient sources like the Manu Smriti or The Holy Qur’an have not entirely lost their validity, and still, exist to provide validation to malignant patriarchal value systems.

Battling Discrimination Through Legal Challenges

  amendments to christian law.

One only needs to turn the pages of our constitutional history, and therein he can find a labyrinth of cases that highlight the misogynistic and conservative characteristics of our personal laws. Here the Indian Courts and Law Commission have always proved to be a beacon of light, especially when faced with the challenges of rectifying historically discriminatory provisions such as Section 10 of the Indian Divorce Act [4] , which the Parliament amended through the Indian Divorce (Amendment) Act [5] , after a string of decisions by the High Courts of Bombay, Calcutta, and Kerala [6] . 

Gender Discrimination under Muslim Law

Perhaps, the most controversial of these challenges was the well-known case of Shah Bano [7] and the ensuing chaos which led to the passing of the ironically titled The Muslim Women (Protection of Rights on Divorce) Act [8] , that overruled the judgment. The Supreme Court once again came to the rescue of Muslim women and the dignity of our society through its decision in Danial Latifi , [9] by upholding Muslim women’s right to maintenance after the period of Iddah is over. More recently, in Shayara Bano [10] , the Supreme Court once again restored our faith in the ideals of equality and justice that it seeks to uphold by abolishing the highly contentious provision of talaq-e-biddat , paving the way for the Muslim Women (Protection Of Rights On Divorce) Bill, 2019, that criminalizes the practice [11] . An interesting point that emerged in the above case that is worth mentioning here is the Attorney General’s contention that talaq-e-ahasan and talaq-e-hasan , the other two modes of divorce available to Muslim men were also unconstitutional due to their arbitrary and unilateral nature [12] . But even if the arbitrariness is remedied in matters of divorce, the truly controversial provision of polygamy for men would still prevail.

Patriarchy in Hindu Law

Coming to Hindu law, which applies to more than 80% of the country’s population [13] , it still continues to have glaringly unequal provisions. For instance, the discriminatory wording of Section 6 of the Hindu Minority and Guardianship Act [14] challenged in Gita Hariharan’s case [15] which gave mothers, a secondary position as guardian. Similarly, until the 2005 amendment [16] , the Hindu Succession Act [17] was also filled with various handicaps for women coparceners, and widows who wished to remarry. And while we are still on the issue of marriages, a major handicap in our personal laws is that the registration of marriages is not a mandatory provision under most personal laws. As the law commission judiciously pointed out in its 2017 report [18] that making registration compulsory, “would also aid in eliminating practices such as early and forced marriages. It can be helpful in achieving gender equality and empowering women. (270 th Law Commission of India Report, 2017)” [19]

Miscellaneous inequitable provisions under personal laws

Another serious matter is the unbelievably discombobulating stance of our country on child marriage laws. Even after lengthy pieces of legislation, and acts passed by the Parliament [20] , in an effort to eradicate this evil, the real blow has come, once again, in the form of a successful writ petition [21] , that finally criminalized intercourse with a minor wife.

Even now we have barely scratched the surface of the problem, there are still a number of inconsistencies that need to be remedied. For example, the adoption laws of our country which vary from religion to religion. Under Hindu law, the adopted child has the same rights as a biological child, but Islamic Law does not even recognize the status of an adopted child. Only through a 2014 judgment [22] of our apex court, Muslims have been granted the right to adopt through the provisions of Juvenile Justice act [23] .

Oppositions to a Uniform Code

It would be prejudicial to ignore the contrary view about the UCC. The first opposition comes from religious activist groups, devoted to safeguarding their traditions from invasive law reforms. For the fundamentalists, unifying our personal laws will be a death blow to diversity. But if in the name of culture and custom, all they want is the perpetuation of their hackneyed class traditions of patriarchal dogma, it will perhaps be in the best interest of the principles of equity and justice to do away with such traditions.

The second and more reasonable objection came from the law commission itself, when in its recent report it declared a UCC to be, “neither necessary nor desirable at this stage.” (Consultation Paper on Reform of Family Law, 2018) [24] . Further suggesting, that small amendments, and codification of existing personal laws will be the better way forward. Indeed, the position seems to be the golden mean for two extremely polarizing opinions. The suggestion will definitely preserve the dignity and diversity of our religions, while also changing their more draconian aspects in accordance with the changing status quo. However, the problem with this approach is evident, as these amendments and reforms take years to shape and successfully implement, and while no one is arguing that the change should come with a finger snap, the piecemeal approach does seem to be an elaborate way of saying that the Parliament and Supreme Court should keep following its current one at a time method of correcting injustices.

Constitutionality of a Common Civil Code

Courts and the ucc.

The whole Common code conundrum, in the simplest of terms, seems to center around two often conflicting fundamental rights- the Right to Equality [25] and the Right to freedom of religion [26] ., both unequivocally inalienable in nature. In Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [27] , the question arose about the distinction between religious and secular affairs. The question, in the above context was perhaps best answered in Sarla Mugdal’s case [28] , where the honourable court expressly stated that “Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27” [29] , while questioning Parliament’s incompetence in implementing a Uniform Civil Code. Two years later, while rejecting the petitions filed under Ahmedabad Women Action Group’s case [30] , our apex court clarified that a Uniform Civil code could only be introduced and implemented by the Parliament. The ratio behind the verdict comes from cases like Narasu Appa Mali [31] and Krishna Singh [32] where the courts have held that personal law, which exists through tradition cannot be constitutionally challenged, as it is outside the ambit of Part III our constitution. But only very recently the scales of justice tilted in the favour of transformative constitutionalism when our honourable Judges in their infinite wisdom finally eroded the constraints of this regressive precedent, when they finally allowed women to walk the grounds of Sabrimala. [33] The historical judgment has definitely moved us one step closer towards ending the injustices ingrained in our personal laws.

The Shining Example of Goa

It would be criminal not to mention the example of Goa in a discussion about the UCC, especially in light of the recent Supreme Court judgment [34] , in which the court praised the state’s unique position of being the only Indian province with a Uniform personal law, albeit with some concessions. While mentioning the fact that it is the only state where verbal divorce and polygamy cannot be practised by Muslim men the court once again highlighted our Government’s failure of fulfilling the expectations of our founding fathers. But even the Portuguese Civil Code [35] is filled with inconsistencies such as limited polygamy and adultery as a fault ground, available only to men. [36]

Parliament and the Uniform Civil Code

From the above discussion, it becomes conspicuous that not only do our courts ardently support a Uniform code, but they also have time and again called for it to be implemented. But unlike a Fundamental Right, Article 44 is a provision under Directive Principles of State Policy, is non-justiciable in nature.  In John Vallamattom [37] , the Supreme Court once again lamented the forgotten wording of Article 44 and asserted its importance in bringing about national integration. 

Unfortunately, the legislature seems to be the sole authority that can make it a reality, and so far, the courts’ wishes have fallen on deaf ears. However, it would be unwise to be utterly pessimistic about its prospects. As mentioned above, the changes the courts and Parliament together have made in the personal laws, have removed various outdated provisions and the existence of acts such as The Dissolution of Muslim Marriages Act, [38] The Muslim Women (Protection Of Rights On Divorce) Act [39] , The Prohibition Of Child Marriage Act  [40] , and the amendments to Indian Divorce Act [41] , have had the combined effect of homogenizing our personal laws.  But still our lawmakers have a long way to cover, and several promises to keep.

Given our religiously fueled political climate, it may seem hopeless that the only way to uniform personal laws is through our legislature and our courts can only urge the government for its implementation. So, one might rightfully ask this, historically what has been the stance of our Parliament on committing towards this radical change? The answer would definitely not raise any eyebrows. When the legislature decided to codify existing religious laws, it unwittingly set our country on a course that would have never led to a common civil code. It made the thought of a uniform code seem poisonous, so much so, that in the past when the calls for a uniform civil code arose from various opposition parties, instead of feeling reformatory, their motives felt vindictive and mala fide. In its 2019 manifesto, the BJP government has once again promised to deliver the nation a Uniform Civil Code [42] , it is yet to deliver on this promise.

The quest towards a Common Civil Code though incomplete has served as a real test of the true nature of our democracy. Hindered by-laws that reek of appeasement and politicians who owe their entire existence to the cataclysm of religious wars, this quest has been guided by the pole star of our judiciary. The vision of our founding fathers is still an aspiration to be achieved.

A personal law system based on religious principles is unable to function under a secular democracy. It is fundamentally against any notion of a just society, a concept which John Rawls once defined as “In a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests.” [43] (Rawls, 2005).  One might wonder, for how long the citizens of this country will have to bear the law’s delay and the insolence of political offices, in failing to secure for them the ideals of our own constitution.

[1] [1] Iyer, V.R. (1986). Strategy Towards a Uniform Civil Code : Journal of Dharma: Dharmaram Journal of Religions and Philosophies , [online] 11(3), p.226. Available at: http://www.dharmaramjournals.in/ArticleFiles/Strategy%20Towards%20a%20Uniform%20Civil%20Code-V.%20R.%20Krishna%20Iyer.pdf [last seen on 20 Sep. 2019].

[2] Article 44, The Constitution of India, 1950.

[3] See CONSTITUENT ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)- VOLUME VII, 23rd November 1948, speech by Dr. B. R. Ambedkar 25, Available at: http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C23111948.pdf .

[6] See Raj Kumar Gupta v. Barbara Gupta, AIR 1989 Cal 1, Ammini E.J. And Etc. v. Union of India (Uoi) And Ors., AIR 1995 Ker 252 and Mrs. Pragati Varghese And Etc. v. Cyril George Varghese And Etc., AIR 1997 Bom 349.

[7] Mohd. Ahmed Khan v. Shah Bano Begum and Ors, AIR 1985 SC 945.

[9] Danial Latifi & Anr v. Union of India, (2001) 7 SCC 740.

[10] Shayara Bano v. Union of India, (2017) 9 SCC 1.

[11] S.4, The Muslim Women (Protection of Rights on Marriage) Act, 2019.

[12] See Shayara Bano v. Union of India, (2017) 9 SCC 1, pg. 119.

[13] Censusindia.gov.in. (2019).  Census of India: Religion . [online] Available at: http://censusindia.gov.in/Census_And_You/religion.aspx, last seen on 24 Sep. 2019.

[15] Ms. Githa Hariharan & Anr v. Reserve Bank of India, AIR 1999, 2 SCC 228.

[16] The Hindu Succession (Amendment) Act, 2005.

[18] 270 th Law Commission of India Report, Government of India, Compulsory Registration of Marriages, available at: http://lawcommissionofindia.nic.in/reports/Report270.pdf, last seen on 24 Sep. 2019.

[19] Ibid. pg. 5-6.

[20] For example, The Child Marriage Restraint Act of 1929, The Prohibition of Child Marriage Act, 2006 and Protection of Children from Sexual Offences Act, 2012.

[21] Independent Thought v. Union of India, 2017 SCC Online SC 1222.

[22] M/S Shabnam Hashmi v. Union of India & Ors., (2014) 4 SCC 1.

[24] LAW COMMISSION OF INDIA, GOVERNMENT OF INDIA, Consultation Paper on Reform of Family Law, pg. 7, available at: http://www.lawcommissionofindia.nic.in/reports/CPonReformFamilyLaw.pdf, last seen on 24 Sep. 2019.

[25] Article 14, The Constitution of India, 1950.

[26] Article 25, The Constitution of India, 1950.

[27] Sri Lakshmindra theertha Swamiar of Sri Shirur Mutt and anr. v. the Commissioner, Hindu Religious Endowments, Madras and ors., (1952) IMLJ 557.

[28] Sarla Mudgal, & others. v. Union of India, AIR 1995 SC 1531.

[29] Ibid. pg. 11.

[30] Ahmedabad Women’s Action Group v. Union of India, AIR 1997, 3 SCC 573.

[31] State of Bombay v. Narasu Appa Mali, Air 1952 BOM 84.

[32] Sri Krishna Singh v. Mathura Ahir And Ors., AIR 1982 SC 686.

[33] Indian Young Lawyers Association v. The State of Kerala WRIT PETITION (CIVIL) NO. 373 of 2006 (Supreme Court, 28 September, 2018).

[34] Jose Paulo Coutinho V. Maria Luiza Valentina Pereira & Anr., CIVIL APPEAL NO. 7378 OF 2010 (SUPREME COURT, September 13, 2019).

[36] Feminism In India. (2019).  Is Goa Civil Code The Answer To India’s Sexist Laws? | Feminism In India . [online] Available at: https://feminisminindia.com/2018/11/09/goa-civil-code/, last seen on 24 Sep. 2019.

[37] John Vallamattom & Anr v. Union of India, Writ Petition (C) No. 242 of 1997 (Supreme Court, 21/07/2003).

[39] 1986 and 2019.

[42] BJP Election 2019 Manifesto English . [online] Documentcloud.org. Available at: https://www.documentcloud.org/documents/5798075-Bjp-Election-2019-Manifesto-English.html [Accessed 25 Sep. 2019].

[43] Rawls, J. (2005).  A theory of justice . 1st ed. Cambridge, Mass.: Harvard University Press, pp.3-4.

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10 Supreme Court Judgments On Uniform Civil Code

1. Jose Paulo Coutinho v. Maria Luiza Valentina Pereira (2019) 20 SCC 85 

It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court

2. ABC vs. State (NCT of Delhi ) (2015) 10 SCC 1

Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation

3. Shabnam Hashmi vs. Union of India   (2014) 4 SCC 1 

Conflicting view points prevailing between different communities, as on date, on the subject makes the vision contemplated by Article 44 of the Constitution i.e. a Uniform Civil Code a goal yet to be fully reached and the Court is reminded of the anxiety expressed by it earlier with regard to the necessity to maintain restraint. All these impel us to take the view that the present is not an appropriate time and stage where the right to adopt and the right to be adopted can be raised to the status of a fundamental right and/or to understand such a right to be encompassed by Article 21 of the Constitution.

4. Lily Thomas vs Union Of India AIR 2000 SC 1650 

Learned Counsel appearing on behalf of the Jamiat-Ulema Hind and learned, counsel appearing on behalf of Muslim Personal Law Board have rightly argued that this Court has no power to give directions for the enforcement of the Directive Principles of the State Policy as detailed in Chapter IV of the Constitution which includes Article 44. This Court has time and again reiterated the position that Directives, as detailed in Part IV of the Constitution are not enforceable in Courts as they do not create any justiciable rights in favour of any person. Reference in this behalf can be made to the judgment of this Court in P.M. Ashwathanarayana Setty and Ors. v. State of Karnataka and Ors. , His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. . In this case also no directions appeared to have been issued by this Court for the purpose of having uniform Civil Code within the meaning of Article 44 of the Constitution. Kuldeep Singh, J. in his judgment only requested the Government to have a fresh look at Article 44 of the Constitution in the light of words used in that Article . In that context the direction was issued to the Government for filing an affidavit to indicate the steps taken and efforts made in that behalf. Sahai, J. in his concurrent but separate judgment only suggested the ways and means, if deemed proper, for implementation of the aforesaid Directives. The judges comprising the Bench were not the only judges to express their anguish. Such an observation had earlier also been made in Shah Bano ‘s case (supra) and Ms. Jorden Diengdeh v. S.S. Chopra . The apprehension expressed on behalf of Jamiat-Ulema Hind and Muslim Personal Law Board is unfounded but in order to ally all apprehensions we deem it proper to reiterate that this Court had not issued any directions for the codification of the common Civil Code and the judges constituting the different Benches had only expressed their views in the facts and circumstances of those cases.. Learned Additional Solicitor General appearing for the respondents has submitted that the Government of India did not intend to take any action in this regard on the basis of the judgment alone.. In the circumstances the review petition as also the writ petitions having no s

5 . Sarla Mudgal vs Union Of India 1995 AIR 1531

The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India.

The Successive Governments till-date have been wholly re-miss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.

We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and “endeavour to secure for the citizens a uniform civil code throught the territory of India”.

We further direct the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August, 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a “uniform civil code” for the citizens of India. Sahai, J. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the Government in this respect.

The desirability of uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.

6. Pannalal Bansilal and others vs. State of A.P.   (1990 (2) SCC 498)

“The first question is whether it is necessary that the legislature should made law uniformly applicable to all religious or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religious or their offshoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different casts, sex or sub-sections in the society speaking different languages and dialects in different regions and provided a secular Constitution to integrate all sections of the society as a united Bharat. The directive principles of the Constitution themselves visualise diversity and attempted to foster uniformity among people of different faiths. A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt must acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.”

7. Mohd. Ahmed Khan vs. Shah Bano Begum  AIR 1985 SC 945

“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made is the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”

8. Ms. Jordan Diengdeh vs. S.S. Chopra  AIR 1985 SC 935

“It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into Art. 44 of the Constitution which provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The present case is yet another which focuses .. on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case.

9. National Textile Workers vs P.R. Ramkrishnan 1983 AIR 75,

Would this Court enforce a uniform civil code in respect of all citizens, without the aid of an appropriate legislation even though the concept of equality is enshrined in the Constitution and Article 44 specifically requires the State to endeavour to secure for all citizens a uniform civil code ? It may not do so The only solution for many of these social problems is to appeal to the appropriate organs of the State to do their assigned job in the best interests of the Community. It is wrong to think that by some strained construction of law, the Court can find solution to all problems.

10. Kesavananda Bharati … vs State Of Kerala AIR 1973 SC 1461

Article 44 enjoins that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Desirable as it is, the Government has not been able to take any effective steps towards the realisation of this goal. Obviously no Court can compel the Government to lay down a uniform civil code even though it is essentially desirable in the interest of the integrity, and unity of the country. (Justice SM Sikri)

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A Term paper on UNIFORM CIVIL CODE IN INDIA -ENDEAVOUR OR A PERSONAL PROBLEM FOREVER? -AN EMPIRICAL STUDY Subject CONSTITUTIONAL HISTORY OF INDIA Submitted By

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The personal law is one of the unique components of the Indian legal system. India is a multicultural society and different groups in India have separate personal laws. The personal laws tells the stories about the culture, behaviour, beliefs and values that are social constructs that shape the views of the people about their antecedents and roots. In India such social constructs has received legal recognition. Over centuries, through invasions and migrations various religious groups like Islam, Parsi, Christians have made India their home. The invasions and migration have led to the advent of various personal laws in India. The paper will focus into thestatus and policy on personal laws in India in a historical perspective. Thus, the paper will focus on the growth and development of various personal laws in India during different eratill the post independence period. Introduction Personal law systems are legal systems where, in the same country, different bodies of law are appliedto different persons according to their ethnic or religious identity. 1 The personal law 2 is one of the unique components of the Indian legal system. India is a multicultural society and different groups in India have separate personal laws. Any one acquainted with the operation of the various personal laws in India would and can entertain no doubt that the applicability of these laws depends solely on religion. 3 The personal laws tells the stories about the culture, behaviour, beliefs and values that are social constructs that shape the views of the people about their antecedents and roots. In India such social constructs has received legal recognition.The colonial invasion has had an immense impact on the structure andsubstance of personal law systems in India. 4 Over centuries, through invasions and migrations various religious groups like Islam, Parsi, Christians have made India their home. The invasions and migration have led to the advent and development of various personal laws in India. After India gained independence the personal law system continued to be retained even after the adoption of the Constitution. Thus, this paper shall discuss the personal law system in the historical perspective and also the social and political factors that contributed towards the growth and retention of personal laws in India over the period of time.

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Article 44 of the Constitution mandates implementation of uniform civil laws in matters of marriage, divorce, maintenance, inheritance, succession and adoption. But the enactment of this Code is hindered: firstly, by virtue of it being a non-binding Directive Principle of State Policy; secondly, by the zealous resistance of critics who cite the compromise of religious identities of minorities. This leads to overlooking objectivity and pragmatism during fervent deliberations on the Code. To safeguard religious identity, women are denied a variety of rights intrinsic to every individual. Therefore, fact must be extricated from fiction for any purposeful deliberation on the Code. This paper argues that implementation of Article 44 poses no threat to religious identities and practices. Instead, it can be a tool to secure gender equality. This study is undertaken in the light of, and with special reference to, existing gender discriminatory practices under Muslim personal law.

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FAIRNESS IN CONTRACTS: A CONSUMER LAW PERSPECTIVE

PROSECUTION PROCEDURE IN NOISE POLLUTION CASES

Journal of Law & Public Policy Vol-4 (2017) Uniform Civil Code

• Journal of Law and Public Policy Journals
• May 7, 2019

About the Journal

The Journal of Law and Public Policy, a peer reviewed journal first released in 2014 is published annually by the Centre for Environment Law Education, Research and Advocacy. It touches upon various socio-legal issues in the interface between law and public policy such as human rights, consumer welfare, women rights, socio-economic rights, food security law, access to legal aid, medical law and ethics to name a few. The fourth, fifth and sixth volumes of the Journal have specially dealt with legal and policy issues on the Uniform Civil Code, Sustainable Energy and Sports. In addition to scholarly articles the Journal has also featured case comments and book reviews. JLPP is a peer reviewed journal with an ISSN No. 2350-1200.

                                                    JOURNAL OF LAW AND PUBLIC POLICY VOL-4 (2017): UNIFORM CIVIL CODE

Uniform Civil Code: An Attempt to Explore its Affordability

 Dr. Vijender Kumar and Naresh Kumar Vats

The authors evaluate the affordability of UCC in this article. ‘Unity in diversity’ is a well-known term specifically in geographical aspect of the state since time immemorial but the inter-personal law conflicts are unavoidable in the modern society. The society is more influenced by political, social as will as economic conditions. The repeated steps for reformations are initiated by the reformers, political thinkers and economists for the political uniformity as well as economic uniformity except the negligible initiatives of social uniformity. The society is divided in many more religions, sects and sub-sects in absence of effective implementation of methods of uniformity which are leading to the emergence of various kinds of social conflicts. Chiefly, the Law of Marriage, Divorce, maintenance, Inheritance, Adoption etc. if treated under one umbrella of a common statute, a majority of the inter-personal law disputes will be zeroed down since, there is no discrimination on the criminal trial for any particular religion, participation in political activities, running business and educations etc. Everyone is obliged to be governed by Uniform Criminal Procedure but not by Uniform Civil Code which encourages the discrimination amongst the natives and grey areas of violation of human rights and discourage the development. The authors tried to draw the inferences from their research that if the society is tailored into the single colour and common thread, it would be more beneficial for the development of human beings: socially, economically, politically and legally.

Need and Challenges to Uniform Civil Code in India: A Special Reference to Muslim Ethos

Dr. G.S. Rajpurohit & Dr. Nitesh Saraswati

The authors in their article, deliberate on the challenges which the Muslim community will face if UCC is enacted. The authors reaffirms that criminal laws in India apply to all people equally across genders, castes and religions, a similarly uniform civil law, especially, in regards to divorce and succession rights, does not exist. Instead, the personal laws of Hindu, Christian, Parsis and Muslim are allowed to govern the people of those religions. Obviously, these personal laws are not the same and so, one finds a country where different regulations govern people based on their religions. This research paper calls into question the implications on justice and equality that such a system raises. The history of personal laws in India can be divided into colonial, post-colonial times and Independence Era. The existence of personal laws is a prime example of continuity between the colonial and post-colonial Indian States in which the colonial State’s legacy still looms large. Law is a “system of rules that a particular country or community recognizes as regulating the actions of its members.” Personal refers to anything that “affects or belongs to a particular person rather than anyone else”. Therefore, the very idea of personal law is impermissible for a law by nature, cannot be personal. This conundrum begs us to consider the validity of the Indian Personal Law System. Civil law in India is a complex matter, a conglomeration of the various personal laws governing Hindus, Muslims, Parsis, Jews and Christians. A common civil law can be applied to a legal case if and only if the litigants choose to opt out of their religious community. However, because of the social taboo that usually comes with such opting, very few choose this route and hence, personal laws play almost a complete role in civil matter.

Uniform Civil Code: A Quest towards Ensuring Uniform Property Rights for Women

Dr. P. Sree Sudha

The author examines the property rights of Women and explores whether UCC can address this issue. The topic of inheritance in India is a “concurrent” one, i.e. one over which both the central and the state governments have legislative authority. Like most personal laws in India, inheritance laws too vary by religion. The fundamental law governing present day inheritance rights of four religious communities i.e. Hindus, Buddhists, Jains and Sikhs, was designed to lay down a law of succession whereby sons and daughters would enjoy equal inheritance rights. In reality persistent discrimination occurs against women is common in India and the main source of bias came from joint family property, to which sons enjoyed right by birth to an independent share but daughters did not. Both had equal rights of inheritance to the separate property that their father accumulated during his lifetime. But, due to the fact that a considerable amount of property, especially land in rural areas, is still jointly owned, such biased rights had a crippling effect on the property ownership of women in India. The author has analyzed the various religion based succession laws to show that they stem from a fundamental desire to secure and keep control over property in the hands of men and to assert the superiority of one gender over the other. Apart from the disadvantages faced by women devoid of property, a legislative vacuum on matrimonial property has devastating consequences on women and children in the eventuality of divorce, widowhood and desertion. Judicial pronouncements of Hon’ble Supreme Court and Hon’ble High Courts are of vital importance, as they lay down the interpretation of the enactment and the intention of the legislature. Some of the most important recent judicial pronouncements are discussed to ascertain the actual effects of the Amendment Act of 2005. Finally the author strongly argues for Uniform Civil Code for giving better property rights for Indian women.

Multi-Culturalism or Malestreamism: A Feminist Jurisprudential Critique

Pranusha Kulkarni

The author in this paper analyses the issue of multi-culturalism from a feminist jurisprudence point of view. In a democracy, everyone is purportedly equal before the law. The fact that in spite of Supreme court intervention in rights of Muslim women in marriages, but no changes have happened on ground, stands testimony to the “double jeopardy” faced by Indian Muslim women. Their plea for justice are echoing till today at the Supreme Court of India, but have only been met with half-hearted attempts at revamping the Indian Muslim Personal law.  The author further analyses whether only Indian Muslim women face these legally legitimized discriminations, or Muslim women globally are victims of this systemic oppression. This is analyzed from the view of abolition of triple talaq in Islamic countries as opposed to is rampant use by Indian Muslim men, with deleterious consequences on the female victims of this egregious act. The possible reason for the anomaly of the existence of this legal incongruity in the light of the fact that arbitrary triple talaq is considered un-Islamic and declared unconstitutional by our Supreme Court is analyzed in this article

Uniform Civil Code: A Way to National Integration

Vini Kewaliya

The author, argues and states that UCC may forge national integration. The author has analyzed the diverse nature of India’s culture and religions and the contributions of foreign ruler who invaded India enriching the culture of the country. In the background of people of different religions and communities have their own personal customs, usages and laws in India, the author has analyzed the need for uniform civil code to bring the uniformity in laws in a secular nation. An analysis of the various attempts made for uniformity of various laws during the British rule and post independence is made. The author makes argument for the need of uniform civil code in the light of the existing problems in the diversified nature of India and various judgments of the Judiciary.

A Critical Study of Civil Code in UK, USA and India with Special Reference to Rights of Women

Shivani Dutta

The author makes a comparative study of rights of women in other jurisdictions. In India there seems to be no uniformity in the laws relating to marriage, divorce, maintenance, guardianship and succession. The term uniform civil code acts as a misnomer in India as violating the age old beliefs of different religious groups. It does not mean that it will curtail one’s freedom to religion but will promote real secularism where everybody will be treated equally irrespective of one’s religion. A comparative study of civil codes as practiced in UK, USA gives a broad idea of how secular laws are applied without hurting one’s religious sentiments. The status and the rights of women depend on the personal laws to which one is affiliated by religion. The discrepancies faced by women under the personal laws in India certainly does not seem to fulfil the equality principle as inscribed in our Constitution and various other international instruments as ratified by India. The Uniform Civil Code is the need of the hour not only for the uplifting the status of women also for the promotion of national unity and integrity. The author focuses on the study of civil code in UK, USA and India with special reference to the rights of women in the area of marriage, divorce and maintenance.

Constitutional Quest to Uniform Civil Code- Mirage or Compulsion

Lt.Col. Plavelil George Eapen (Retd)

The author argues for establishing the national integration council to resolves the issues relating to UCC. Our country which gained political freedom in 1947 was fortunate to be given a Constitution by the founding fathers. With the political call for one nation there was an effort to include a Common Civil Code as a fundamental principle. However there were dissenting voices in the backdrop of communal riots and religious discord. Uniform civil code was included therefore as Article 44 of directive principle of the State Constitution without a time frame. Over the last seven decades there has been economic growth and development based upon government financial plans. However, social harmony and freedom in society has often been elusive. There have been numerous riots based upon religious animosities. This has affected a harmonious social growth of society. To achieve the enactment of a Uniform Civil Code the government should have made a road map as to the measures to be implemented to create a socially harmonious environment, conducive to legislation. However over the years there has been religious violence often instigated by political compulsions while the directive on UCC remained in limbo. Thus any sudden legal enactment to enforce social justice will be resisted by a wide spectrum of interests.  A clear case is divorce by triple Talaq and polygamy in the Muslim community. On the one hand a simplistic approach would be its abolition like that of Sati among the Hindus. But as Talaq is a practice with wide connotations due to the Islamic scholarly interpretations and justification, there will be great discord. The author provides a multi-pronged solution for the enactment of UCC.

Uniform Civil Code, Constitution of India and Constitutionalism

Preethika Pilinja

The author looks at whether the Constitution of India has worked towards the goals of the UCC. While we all continue to witness to heated debates on the question of desirability or otherwise of Uniform Civil Code from various perspectives, the author in this paper analyses Uniform Civil Code from the standpoint of Indian Constitution and Constitutionalism. Essentially the UCC has entangled itself with Indian Constitution and in the whirlpool of Indian politics. The author in this paper begins with an analysis of the background in which Uniform Civil Code found a place in the Indian Constitution. It has been duly pointed out that the Constitution did not define the nature and scope of the UCC; neither did it state the extent of State interference into personal laws. It does add to some confusion whether or not UCC must be attempted by the State. The author examines the intermingling of freedom of religion and Uniform Civil Code, in the backdrop of constitutional promises, including, but not limited to Right to Freedom of Religion. In the light of the Constitution, Constitutionalism and a catena of judicial decisions, the author argues that, while getting rid of practices, like triple talaq which run contrary to the principles of equality and fair treatment, are a constitutional compulsion, Uniform Civil Code in the rigid sense that, destroys the diverse fabric of this country can be catastrophic.

Public Domain of Personal Laws: An Inquiry from the Perspectives of Conflict of Interests and Identities

Eklavya Anand & Shailesh Kumar

The authors state the reasoning and objectives necessary for the codification of the UCC especially for the protection of rights. The authors venture through the domain of personal laws and unpack how the Masculine DNA has shaped and reshaped personal laws to keep the unjust gender equilibrium in the society intact. It further evokes history to unearth the historical deficit in the arguments of majoritarian community when it comes to there form of personal laws. The majoritarian community, which claims to be progressive in the current debate pushing for a Uniform Civil Code, forgets the past when it showed extreme rigidity with regard to reforms in the domain of personal laws as colonial interventions. The authors highlight the constitutional debates and state-sponsored selectivity, which perpetuates a spiral cycle of status quo. In this process, it is safe to say that the judiciary seems more progressive than the legislature in performing its constitutional duties, though the judiciary also seemed to be in an escapist mode in the past. This legal vacuum as well as an egalitarian desire for equal integration in the unequal social structure of the society has given birth to many movements of socio-political nature. It further emphasizes the political economy of some of the prominent socio-cultural movements to fill this legal vacuum as complex and driven by extra-legal considerations.  The aspiration of bringing uniformity in the personal laws is rooted in the nationalistic perspective and is deeply problematic. It contends that the shift towards uniformity to attain national integration should be embedded in the sustenance of the religious diversity rather than forcing religious homogeneity. Putting forth the feminist perspective, it attempts to assure that the abolishment of evil practices from all personal laws would be more successful if the debate on personal laws is shifted from ‘religion’ and transplanted in ‘gender’. The authors conclude by saying that any improvement in the personal laws should be initiated from the points of view of the troika of gender, individual rights and progressive democracy.

Examining the Fundamental Dichotomies of Personal Laws and Human Rights with Reference to a Growing Consensus for a Uniform Civil Code

Bharath Gururagavendran

The author in his article examines the dichotomies between personal law and human rights. The guarantee of human rights is perhaps the most essential component in the manifest constitutional machinery of modern democratic establishments. In India, this proposition is evidenced by the ostensible primacy of fundamental rights, which are constitutionally recognised, and judicially enforceable. The quiddity of human rights is conceivably, its universality, and as such, the universal implementation of human rights is the primary prerogative of a human rights system. In India, that prerogative is threatened by personal laws that are deeply patriarchal, and are principally abrogative of a woman’s right to equality. Whilst a perfunctory analysis would render a conclusion favouring the exclusion of personal laws from India, a deeper inspection demonstrates the intrinsic dichotomy that manifests in a paradigm of human rights and personal laws; “culturally relativistic personal laws as opposed to universally multicultural human rights”. Personal laws are, at a theoretical abstraction, symptomatic of a call for cultural relativism in legal systems. Contrastingly, the Uniform Civil Code, which is postulated as a necessary solution to the problem of discrimination of women, is at its crux, a call for a multicultural society that can operate based on a single set of laws. The manifest coalescence of religious freedoms in this dichotomy provides illusory justifications to personal laws, as the constitutional mandate for the right to freedom of religion stipulates the “right to manage its own affairs in matters of religion”. To that effect, the primacy of individual rights(which constitutes a significant interest of human rights) is challenged by the religious freedoms of organised religion. Thus, a subliminal dichotomy of the right to religious freedom and individual rights (the right to equality; a human right of significant import) manifests, subsumed into the overarching dichotomy of cultural relativism and multiculturalism. The author in this paper seeks to provide a legitimate justification for the posited dichotomies by advancing a conclusion favouring the implementation of a Uniform Civil Code.

Uniform Civil Code and the Conflict of Personal Laws

Kiran Suryanarayana

The author looks into the UCC versus personal law issues and conflicts. It is an accepted interpretation that whence the phrase, ‘conflict of personal laws’ is considered, (in predominantly an Indian context) one is under compulsion to consider the underlying causes that explain the origination of the statement, the undeniable religious tension that has been extant in the country since medieval times. The anthropologically interesting march to the independence of India in 1947 and the events of the partition that preceded and post – dated the same, seek to validate the surprising amount of autonomy granted under Article 25 of the Constitution of India, 1950 at the individual level and at the organizational by means of personal laws. It is the belief that is held by a great many citizens of the country that the positing of a Uniform Civil Code, could potentially hold the key to resolving the problems resultant from the presence of conflicting personal laws and judicial hesitation in intervening into the matter, further exacerbated by a contrast that the conventionally active nature assumed by the higher judiciary in India has allowed. While the Law commission has definitely expressed that information aplenty must be rigorously collected and analysed before undertaking the task of framing such a code, it is dismaying to observe the general assumption in the populace including the framers of policy that the possible solution to the situation at hand, is through the route of the passing of a Uniform Civil Code. When a problem that requires the use of human reasoning is approached with a confirmation bias, then the results are tainted by the same. To postulate, the UCC does not resolve the conflict, as it does not remove the underlying religious tension and possibly will allow for the fomentation of social circumstances that favour greater religious conflict in the absence of secondary institutional autonomy.

One Code, One Nation: Reality or a Speculation

Kriti Rathi & Aman Tolwani

The authors in their article analyze the reality of achieving one code one Nation. An analysis on the diversity of India along with various legislations is made. The authors contemplates the question whether it is possible to govern each of them equally for there exists different cultures, traditions, thereby forming different classes of persons considering that India is a country with vast heritage known to cohabitate multi-lingual and diverse citizenry, multi-religions co-existing,. Different people are governed by their separate personal laws as different treatment needs to be meted out to different classes based on their respective needs and traditions. As these sects of society are ruled by their customs and traditions hence arose a need for separate personal laws governing these religious sects of the society. Accruing to this need for personal laws, different special laws were enacted such as the Christian Marriage Act, Hindu Succession Act, Hindu Adoption and Maintenance Act and various branches of law developed under Family Law – Muslim Law, Hindu Law, Christian Law and Parsi Law. The authors provides a background on the development of UCC in India and makes analysis supporting their argument that India practically has a Civil Code, uniform in its content and applicable to the whole of India.

Cruelty: Interpretation of Indian Personal Laws

Samhitha Sharath Reddy

 The author analyse the issues on ‘Cruelty’ in personal law. ‘Cruelty’ is a term with an ever evolving meaning. It is a matrimonial relief in India which can by claimed for divorce and judicial separation by both men and women. India being a religiously and culturally diverse country has numerous interpretations of the term ‘Cruelty’ which vary from religion to religion. What maybe cruelty today may not have been cruelty in the past and what is cruelty in one religion, may not be interpreted as cruelty in its other Indian counterparts. The author attempts to analyze the interpretation of the term ‘Cruelty’ in the different personal laws of the country as well as trace the evolution of the same in each personal law. The similarities and differences of the term in the different laws are analysed extensively.

Uniform Civil Code: Unified Laws and Divergent Ways

Siddharth Anand Panda & Samyak Mohanty

The authors have contributed on the Constitutional challenges to unify religion based personal laws. The Uniform Civil Code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen under Article 44 of the DPSPs which makes the implementation of the same as the state duty. The relationship between religion and constitution has become a most contested issue, especially in the context of Fundamental religious rights and Secularism. There is a raging debate between proponents of a UCC and the defenders of distinct legal traditions over the precise meaning of this principle. In this paper, the authors try to contemplate the need of a UCC by doing a status quo analysis on the issue of religion and constitutionalism. The authors ask two important questions: Should plural societies adopt uniform civil laws in deference to the equality of all citizens before law or should the integration of the diverse religious groups be addressed through a pluralist model of law in deference to the concept that a democracy must respect religious freedom? The authors try to bring conceptual precision to the discourse, first by identifying empirically the contexts in which constitutionalism is employed and secondly, through a normative inquiry regarding the role constitutionalism could perform in the making of a ‘UCC’. In addition to that attempts have been made to re-define secularism and articulate that secularism is polysemous. The major question here is whether a unified personal law system answer to the problems of religious fundamentalism such as Hindutva, Triple Talaq, Nikah halal etc. Can State mediate between the acceptance of religious laws and universal human rights and explore possible solutions with regards to drafting and implementation of a unified civil code satisfying the challenges of unifying individual and religious rights and retaining the essence of the Constitution.

The Future of Muslim Personal Law in India: Codification or a Uniform Civil Code?

Zaid Deva & Swagat Baurah

The authors have in their article, raised the challenges that may arise from the codification of Muslim personal law. The Supreme Court has consistently taken up the task of defining secularism and has tried giving it a wide ambit of reasoning and interpretation, but this has also, in a fortuitous misfortune, created the great confusion that exists today. Article 44 of the Constitution mandated the state to ‘endeavour’ so as ‘to secure for the citizens a uniform civil code.’ While most of the Civil law has been made uniform, it is the personal law of various communities, particularly Muslims which has been the major obstacle for the governments in initiating reform. Further, the very personal law of Muslims has become vague and indeterminate, owing to the growing number of sects in Islam. The existence of the controversial practices in Shariah like Triple Talaaq, Polygamy, Halala beg the question, “Should social reform be stalled, because of the supposed divine characteristics of the personal laws which the secular state shies away from infringing?” Another question that arises here is whether or not, the State as much as endeavoured towards implementing a uniform code since 1950.  With the advent of a majority right wing government in India, the debate of ‘majoritarianism under the garb of social reform’ has been fuelled, because a Codified Muslim Personal law would serve the purpose equally well. The benefits of a codified Muslim personal law, and how that could be an antecedent in enacting a Uniform Civil Code, which is supposed to bring all the communities on a similar platform on matters which do not form the essence of any religion, leading to a national consolidation, which has been so long desired has been described. The authors also discuss whether secularism, in general and Indian Secularism in particular, is compatible with the Islamic principles, which encompass almost the entire private and public aspect of an individual’s life. The authors briefly look into the history of the Shariah vis-a-vis polygamy, triple talaaq and halala, and argue that these practices have lost their purpose, and the manner these are practiced today are in direct contravention of the basic tenets of the Constitution, hence should be discontinued with, because the essential principle behind a Uniform Civil Code or a Codified Personal law is that constitutional law shall supersede religious laws in a secular & democratic republic, where the rule of law prevails.

Uniform Civil Code: An Ornamental Legislation

Debajyoti Saha & Sunayna Bhat

The authors argue that UCC though inevitable, has many hurdles to crossover. Every religion has its own laws and regulations. In the preamble of our constitution we, the people of India, are stating that India is a secular country. We cannot differentiate between the religions on the grounds of their personal laws. The Constituent Assembly of India was already aware of the situation during the drafting of our constitution. That’s why they put a duty on the State to make “Uniform Civil Code”. Uniform Civil Code is one of the directive principles of state policy contained in the Constitution of India. It directs the state “to endeavour to secure for the citizens a uniform civil code throughout the territory of India”. It has created controversy since its inception. The multiplicity of diverse religions caused alarming situations. Religious freedom under Article 25 is not confined to freedom of conscience but its ambit covers right to practice, profess and propagate the religion by its own citizens. The religion is a wide and pervasive concept. It is confined to ‘faith’ only because ‘practice’ and ‘propagate’ are the part and parcel of the religion. The apex court from time to time has reacted sharply, favouring its enforcement even at the cost of its ‘judicial discipline.’ The latest pronouncements in the cases of John Vallamottom v. Union of India and Sarla Mudgal v. Union of India & others have set example for the ‘judicial activism’. The making of “Uniform Civil Code” will not happen in one day. It has to be done in step by step process. We can take example of the state of Goa which is the only Indian state having “Uniform Civil Code”. Appropriate time will never come if we sit idle. We have to take the risk and face the consequences as it is high time for us to realize the importance of “Uniform Civil Code”.

Uniform Civil Code and Its Constitutional Apparatus

Nithya C & Sera Rose George

The authors contribute on the Constitutional challenges under Art 25 with that of achieving the objectives under Art 44. A functioning democracy adheres to the theory and practice of the fundamental principles of equity, justice and inclusion for all. And the aforementioned “all” consists of women, men, young, old, able-bodied and disabled alike, irrespective of race, class, religion and sexual orientation. This is the defining feature of a democracy. And in such a democracy, why not create a common civil code that brings out the best in every religion and society? Why not introduce a common procedure for marriage, divorce, inheritance and right to property; something that does not interfere with an individual’s way of worship, yet have a unification of personal laws? Under Article 44, the State shall endeavour to enact a Uniform Civil Code for citizens throughout the country. Further, Article 25 of our Constitution says “nothing in this article shall prevent the state from making any law” associated with religious practice, so the argument that UCC is a violation of Article 25 will not hold. By empowering the State to regulate or restrict any laws, as per Article 25, a clear distinction is made between sacred and secular. Thus practices such as witchcraft, sati, and prohibitions against widow remarriage, caste discrimination, Maitri Karar, Natha Pratha, talaq-e-bidat, and polygamy may be and have been banned or regulated. However, whether and where a boundary is to be drawn is debatable. The feasibility and desirability of a UCC has always been mooted for decades by women’s rights activists, and the question that keeps recurring is – what is the value of uniformity? Who exactly is the beneficiary? Which sections of people will benefit from this? Is there any suffering due to the absence of a Uniform Civil Code? There is no personal law that is complete in itself. We have succeeded in bringing transitions through secular laws instead of forced legislations in certain instances. Gradual changes made through legislations or judicial pronouncements that assure gender equality and a broader outlook towards marriage, maintenance, adoption and succession by acknowledging the benefit that one community secures from the other will be a good way forward.

MAINTENANCE UNDER MUSLIM PERSONAL LAW IN LIGHT OF DANIAL LATIFI VERSUS UNION OF INDIA– THE NEED FOR A UNIFORM CIVIL CODE

Varnika  Chawla

The author has contributed a case comment on Danial Latifi case. The Supreme Court in the case of Danial Latifi  v. Union of India upheld the constitutionality of the Muslim Women [Protection of Rights on Divorce] Act,1986 and interpreted it in a way that ensured general welfare and provided social justice. This became a landmark judgement of the Court, as this democratic interpretation was used in all further Muslim divorce cases. It protected the rights of the divorced Muslim woman, and ensured her Right to Life with personal dignity. The author analyses this landmark decision of the Supreme Court in light of the constitutional principles of equality and secularism. Further, the different interpretations of the Act before this judgement have been discussed. The impact of this decision on the social status and maintenance policy of divorced Muslim women in subsequent cases has also been evaluated and described.

UNIFORM CIVIL CODE AND ADOPTION LAWS: A CASE COMMENT ON SHABNAM HASHMI VERSUS UNION OF INDIA

Sregurupriya Ayappan

The author discusses the Shabnam Hashmi v. UOI case. This comment begins with the legal background and factual matrix of the case, and goes onto analyse the judgment and then conclude. In the process, the various models of a uniform civil code are also explored. The right way forward is to harmonise conflict between personal and statutory law, the Court was wrong in viewing the opt-in-opt-out approach as an interim measure towards the end of achieving a Uniform Civil Code. It also seeks to show that the court was incorrect and self-contradictory in citing personal law to deny the right to adoption the status of a fundamental right.

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Implementation Of Uniform Civil Code In India

• To find out if implementation of a Uniform Civil Code be beneficial for India
• To know about the problems and challenges in implementation of Uniform Civil Code
• To find the relationship between universal civil code and secularism
• To understand Indian model of secularism and western model of secularism
• Uniform civil code and the controversies.
• Idea of achieving gender justice through uniform civil code
• Uniform Civil Code and the Indian Constitution
• Uniform Civil Code in Goa
• Merits and demerits of having a Uniform Civil Code
• The State Of Bombay vs Narasu Appa Mali AIR 1952 Bom 84
• Lily Thomas, Etc. Etc. vs Union Of India & Ors. 2000 (2) ALD Cri 686
• S. R. Bommai v. Union of India 1994 SCC (3)
• Sarla Mudgal v. Union of India 1995 AIR 1531
• Mohd Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945
• Ahmedabad Women Action Group... vs Union Of India AIR 1997, 3 SCC 573

Uniform Civil Code And The Controversies

Idea of achieving gender justice through uniform civil code, uniform civil code and the indian constitution, uniform civil code and goa, merits and demerits of having a uniform civil code.

• Agnes, Flavia. The Supreme Court, the Media, and the Uniform Civil Code Debate in India. The Crisis of Secularism in India, 2006, pp. 294-315.
• Dhagamwar, Vasudha, and Indian Law Institute. Towards the Uniform Civil Code. 1989
• Parashar, Archana. Women and Family Law Reform in India: Uniform Civil Code and Gender Equality. 1992.
• Shetreet, Shimon, and Hiram E. Chodosh. Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse. Oxford University Press, 2015.
• Hazarika, Raya. Should India Have a Uniform Civil Code? SSRN Electronic Journal, 2010.
• Sharma, Sharda Girijesh. Uniform Civil Code and Adoption Laws in India. SSRN

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Uniform Civil Code: Advantages and Disadvantages

Table of Contents

Our Constitution and Uniform Civil code

The Indian constitution has a provision for Uniform Civil Code in Article 44 as a Directive Principle of State Policy which states that the state shall endeavor to all citizens a uniform civil code throughout the territory of India.

Advantages of  Uniform Civil code

Gender equality.

The implementation of a uniform civil code across the nation will enable the abolishment of gender discrimination in the nation. For example, according to various religions, inheritance, marriages, etc are male-dominated. After seven decades of independence also women are battling for equality

A boost to National Integrity

The formation of UCC will boost national integrity. Even though our country has diverse cultural values, a unified personal law irrespective of gender, caste, creed, etc will boost national unity.

Cornerstone of secularism

The preamble of our constitution clearly states that India is a sovereign, socialist, secular state. But it is high time to think that whether the citizens of India will enjoy real secularism without the implementation of UCC. Even after decades of independence also different personal laws are in existence for different religions.

Social reforms

Once the UCC is formulated across the nation, India will undergo another social reform in this century. For instance, in the Indian context, Muslim women are denied personal laws in relation to marriage, divorce, etc. On the contrary, in various Muslim nations like Pakistan, Bangladesh, Turkey, Morocco, etc women enjoy codified personal laws. So after the implementation of UCC Indian women [especially Muslims, Christians etc] will also enjoy a codified personal law. Therefore, a stepping stone towards another social reform across the country.

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Disadvantages of the Uniform Civil Code

A threat to communal harmony.

Potential misunderstandings regarding the Uniform Civil Code created fear among various religions, especially minorities. It is often viewed by many religions that UCC is aimed against their religious customs and values. Before the implementation of UCC, authorities should win the trust of minorities. Otherwise, it will destroy the communal harmony of the nation.

Also read: One Rank One Pension (OROP) Scheme explained.

Government’s interference in Personal freedom

It is often viewed by many that it is the crooked game of the government to interfere in personal freedom of individuals. But Uniform Civil Code is aiming only to protect and safeguard the rights of all citizens.

Not yet the correct time for implementation

The Muslim community is opposing the implementation of the Uniform Civil Code and states that it is not the correct time. Also, they are arguing that the subject should take into consideration along with other recent issues the silence of authorities in relation to the saffronization of schools, beef issues, etc are triggering them and further stating as the overruling of majorities over minorities.

Difficulties due to India’s diversity

The implementation of the Uniform Civil Code is a cumbersome task due to the wide diversity of our nation. Cultural differences from state to state and community to the community are yet another hindrance to a unified personal law.

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Is Uniform Civil Code needs to be implemented?

The implementation of the Uniform Civil Code can be considered the need of the hour. Even after years of achieving independence, citizens are not enjoying real freedom yet. The unified personal law cannot be viewed with religious emotion but as the need for the country.

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