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Uniform Civil Code in India: Balancing Uniformity and Diversity in Personal Laws

In India, all the laws are applied in the same manner.

For example: if any person has committed murder, irrespective of his religion, the punishment given will be the same.

This is known as UNIFORMITY.

There are already a lot of uniform laws existing in India, the biggest instance of which is 'The Constitution of India'.

Besides this, there are many laws which are applied uniformly. Likewise:
  1. The Indian Contract Act,1872
  2. The Code of Civil Procedure, 1908
  3. The Code of Criminal Procedure, 1973
  4. Indian Penal Code,1860 etc.

But there is a single exception to this uniformity which is PERSONAL LAWS which varies from religion to religion. Currently, in India, there are different personal laws for Hindus, Muslims, Sikhs, Parsis, and Christians which causes a lot of problems.

Uniform Civil Code (UCC)
A uniform civil code would provide a single body of legislation for the entire nation, which would apply to all religions with respect to personal laws, including marriage, divorce, quality, adoption, maintenance, succession etc.

According to Article 44 of directive principles of state policies, the government must make efforts to provide a Uniform civil code for its residents across the entire country. But in a country like ours where the population of Hindus is 110 crores, Muslims are around 20 crores, 4 crore Christians, 3 crore Sikhs. In such a case, would it be easy to bring uniform personal laws?

Apparently, this statement is not entirely true. Because even at the time of independence, Hindus were in the majority. Therefore, in the 1950s when we got freedom, the Hindu personal code was passed, the meaning of which is that uniform codification of Hindu personal law was done.

History Of Personal Laws In India
Prior to British rule, Hindus were governed by Shastra the interpretation of which was done by Brahmins, and at the same time it was executed by the kings. No matter which type of case it was, the answer of the same was mentioned in the Shastra.

Similarly, Muslims had sharia law, the interpretation of which was done by Kazi and was executed by nawabs.

When the East India Company came into play, they enforced English common law on their English subjects, for the purpose of which even the courts were established. But when it came to solving the disputes relating to Indian subjects, a question arose about which law would be followed.

Till 1862, High Courts were established in different parts of India and many different religious laws were also made likewise:
  • Hindu Widows' Remarriage Act, 1856
  • Hindu Women's Right to Property Act, 1937
  • The Hindu Law of Inheritance (Amendment) Act, 1929

Laws for Muslims:

  • The Muslim Personal Law (Shariat) Application Act, 1937
  • The Dissolution of Muslim Marriages Act, 1939

Article 44 & Drafting Committee
The drafting committee of the Indian constitution was set up in 1946.

The answer to the question about how Article 44 came into the Indian constitution is that when the drafting committee was set up, a plan was made to bring the UNIFORM CIVIL CODE which was subjected to a lot of discussion and debate.

Article 35 of the then draft mentioned, the Uniform Civil Code. During the discussion, Mohammed Ismail asked to add a proviso in Article 35, which stated that "Any group section or community of people shall not be obliged to give up its own personal laws."

The clause on UCC generated substantial debate in the Constituent Assembly about whether it should be included as a fundamental right or a directive principle.

The matter had to be settled by vote; with a majority of 5:4, wherein the sub-committee on fundamental rights headed by Sardar Vallabhbhai Patel decided that securing a UCC was not within the scope of fundamental rights.

And finally, with a majority.

Therefore, it was decided that UCC should be added under DPSP. And when the Constitution was enacted, UCC Was covered under Article 44 of the Indian Constitution.

In What Areas Uniformity Is Needed?
Sec 494 of IPC - according to which 'while having a living spouse, if someone does a second marriage, then it is a crime.' There is only one exception to this uniform law, that if a man is Muslim, then he can do up to 4 marriages. Since the progressive world is monogamous, therefore, uniformity should also come in that line.
In Hindu law, an irretrievable breakdown of marriage is not a valid ground for divorce.

As per Hindu law, women inherit an equal share of property. On the other hand, Muslim women, when compared to Muslim men, can only inherit less than half of the share.

Muslim women cannot claim maintenance for a long time like other Indian women.

Indian law prescribes a uniform age for marriage for all religions, which is 18 years for females and 21 years for males. If marriage is done under this prescribed limit, then it is child marriage and therefore is prohibited. But Muslims are an exception to the same or allowed.

Is UCC A Hindu-Muslim Debate
This whole issue is to remove such laws from society which are discriminatory and derogatory, which, without any law or logic, are clearly wrong.

Important Case Laws Of Indian Personal Laws
State Of Bombay Vs Narasu Appa (1952)
In this case, a Hindu man was convicted of bigamy. Convict in his defence said that this punishment and The Bombay Prevention of Bigamous Hindu Marriage Act,1946 is against his religion.

Because he didn't have a son from his first wife and according to his religion, if his son doesn't do his last rites, he won't get salvation.

NOTE: The Hindu religion at that time used to say that if a person is not getting a son from his first wife, then a second marriage is permissible.

Judgement: The court rejected all the arguments and declared that The Bombay Prevention of Bigamous Hindu Marriage Act,1946 is valid, and punished the person for Bigamy.

Mohd. Ahmed Khan Vs Shah Bano Begum (1985)
Facts: In this case, Shah Bano was divorced after 40 years of marriage and five children.

In Indian law, SEC 125 of CrPC provides maintenance protection to Indian women.

After the divorce, Shah Banu also claimed maintenance under Sec 125 of CrPC. But her husband filed an appeal against this maintenance.

Judgement: 5 Judge bench of the Supreme Court clearly stated that even Muslim women are entitled to protection under 'Section 125 of CrPC' along with this it was also stated that according to article 44 - 'If a Uniform Civil Code comes, then it will work for national integration and will provide better solutions in the times of conflicting ideologies.'

Note: Such a progressive judgement was overturned by the then government by passing Muslim Women (Protection on Divorce),1986.

According to this act, Muslim women cannot claim protection under Section 125 of CrPC.

Shayara Bano Vs Uoi 2017 (Triple Talaq Case)
Facts: in this case, Shayara Bano's husband, pronounced, triple talaq and divorced her. Against which Shayara Bano filed a writ petition in the Supreme Court and challenged three practices of Muslim law:
  • Nikah halala
  • Polygamy
  • Talaq-e-biddat (Triple talaq)

Arguing that these three practices are derogatory and discriminatory.

Against which All Indian Muslim Personal Law Board said that Muslim law is not qualified and therefore it should get protection under ARTICLE 25 of the Indian constitution.

The meaning of this is that judicial review of Muslim law cannot be done. In other words, Muslim personal law cannot be challenged constitutionally.

In this case, the Supreme Court with a majority of 3:2 declared Triple talaq or Talaq-e-biddat as unconstitutional because it was not an essential religious practice.

Along with this, it was also stated that if nikah halala and Polygamy also have to be declared unconstitutional then the authority lies in the hands of Parliament.

Different Views on the Implementation of UCC:
In March 2023, when a PIL was filed in the Supreme Court to get UCC passed. Supreme Court closed the petition on UCC and left the issue for Parliament to consider.
  1. Along with this India's 22nd Law Commission had asked for views and ideas on UCC from public and religious organizations.
  2. But the previous law commission, which is the 21st law commission stated that UCC was neither necessary nor desirable at that stage and also highlighted many practical difficulties:
    • Under Hindu law, Marriage is considered a holy sacrament.
    • Under Christian Law, Divorce is stigmatized.
    • Under Muslim law, Marriage is a Contract.
    • Under Parsi Law, Registration of Marriage is a vital ritual.

It is important to respect all these attitudes and one religion cannot be imposed on another. If no consensus comes in UCC then the only way to move forward is to make changes in personal laws so that diversity is preserved and at the same time, it is ensured that personal laws do not contradict with fundamental rights.

Advantages Of UCC:
The advantages of implementing a Uniform Civil Code (UCC) in India, are as follows:
  1. Equality: A UCC would promote equality among all citizens, irrespective of their religion, by ensuring that the same laws apply to everyone. This eliminates discrimination and ensures that every individual is treated equally under the law.
  2. Women's Rights: The UCC would uplift the status of women by eliminating discriminatory personal laws that often disadvantage them, such as those related to divorce, inheritance, and property rights. This would empower women and enhance gender equality.
  3. National Integration: A Uniform civil code can contribute to national integration by reducing divisive loyalties to laws rooted in conflicting ideologies. It can help in unifying the diverse population of India under one legal framework.
  4. Modernization: Personal laws in India, often based on ancient traditions, can be archaic and not suited for modern times. A UCC would modernize these laws, making them more relevant to contemporary society.
  5. Legal Clarity: A UCC would bring legal clarity and consistency, reducing confusion and disputes related to multiple personal laws. It would simplify legal proceedings and make the legal system more accessible.
  6. Uniformity: A UCC would bring uniformity in laws applicable to different communities and faiths. This would ensure that all citizens are subject to the same legal principles, promoting a sense of national unity.
  7. Social Reform: The UCC is seen as a means to reform the Indian social system by addressing inequities and discriminations present in personal laws, which may conflict with fundamental rights.
  8. International Comparisons: As we know many other countries and Western democracies have adopted a common civil code, which suggests that India could benefit from aligning its legal system with these international norms.

Disadvantages of UCC:
The disadvantages or concerns associated with the implementation of a Uniform Civil Code (UCC) in India, are as follows:
  1. Threat to Secularism: Critics argue that implementing a UCC may be perceived as a threat to India's secularism, as it could be seen as imposing majority Hindu views over minority religious communities. This could potentially undermine the country's secular principles.
  2. Misuse by Religious Forces: Opponents of the UCC claim that it might be misused by religious forces to further their agenda or suppress the rights of minority communities. It could potentially be used as a tool for majoritarianism.
  3. Political Opposition: Political and religious groups have resisted the UCC, viewing it as a conspiracy to impose majority views. This opposition can create challenges in its implementation and result in ongoing political debates.
  4. Tribal Communities: The tribal communities in the northeast of India have their own personal laws based on customs and practices. Implementing a UCC could be seen as erasing their distinct cultural practices.
  5. Complexity and Diversity: India is known for its diverse cultural, religious, and regional diversity. Unifying such a complex and diverse nation under one law is considered a challenging task due to the wide variety of customs and practices.
  6. Lack of Consensus: The UCC has faced opposition and lack of consensus among various communities and religious groups. Building consensus for such a sweeping legal change is difficult.
  7. Potential for Social Unrest: Opponents have warned of potential social unrest if a UCC were to be implemented, particularly from Islamic fundamentalists and orthodox Hindus who fear a loss of authority and religious freedom.
  8. Controversy and Misinterpretation: The UCC debate has been marred by controversy and political wrangling. The UCC has been misinterpreted and misunderstood by various groups, making it difficult to achieve consensus.

The idea of implementing a Uniform Civil Code (UCC) in India is a complex and contentious issue that has been a topic of debate for decades. The advantages of a UCC are clear: it can promote equality, empower women, enhance national integration, modernize laws, provide legal clarity, and bring about uniformity in personal laws across different communities. It is seen as a means to address discriminatory and archaic practices that may conflict with fundamental rights and promote social reform.

However, there are significant disadvantages and concerns associated with the UCC as well. Critics argue that it may threaten India's secularism, be misused by religious forces, face political opposition, and erode the distinct cultural practices of tribal communities. The diverse nature of India's population and the lack of consensus among various communities make the implementation of a UCC a challenging task. There is also the potential for social unrest and controversy, which has hindered progress on this front.

Ultimately, the path towards a UCC in India remains a complex and multifaceted issue. While the principle of equality and a unified legal framework is appealing, it must be pursued with sensitivity to the religious and cultural diversity of the country. Any attempts to implement a UCC should involve thorough deliberation, consultation with all stakeholders, and careful consideration of the potential consequences. Achieving consensus and addressing the concerns of all communities is essential to moving forward on this important issue.

  • State of Bombay v. Narasu Appa Mali (AIR 1952 BOM 84)
  • Mohd. Ahmed Khan v. Shah Bano Begum and Ors. (AIR 1985 SC 945)
  • Shayara Bano v. UOI [AIR 2017 9 SCC 1(SC)]
  • Finology Legal
  • The World is One News (WION)
Written By: Jahanvi Verma and Kashish Karwani, 4th year Law students from Udaipur.

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