India is Socialist, Secular, Democratic, Republic
. Diversity is at the heart
of Indian culture, but diversity in the law is unfair.
Article 14 of the Indian constitution states that when it comes to the law of
the land, everyone is on the same footing, but there has always been a gap
between making laws and enforcing them. The recent ruling on triple talaq is
indicative of the issues that Muslim women have been dealing with since the
beginning of time, and the failure to take the necessary steps to address these
issues on time.
Why are different rules devised for different communities when everyone is
subject to the rule of law? This is an interesting question to consider when
everyone is subject to the rule of law. Although the diversity of 133.92 billion
people is accepted, why can't a single rule is applied to all of these
diversifications in order to bring everyone together in a true sense? The
protection of the law and the establishment of fundamental rights are not only
extended to Indian citizens, but are also extended to anyone who happens to be
present on the country's territory. Any form of discrimination, no matter how
subtle, undermines the protection of our laws and the equality of all people
under the law.
In a country such as India, where religion is being diversified by the citizen,
the Uniform Civil Code is such a controversial subject which raises the question
whether it really will be a benchmark of the Indian personal laws, or a nail to
the coffin of different personal laws. The Uniform Civil Code is an entire set
of laws which mainly govern all the Indian citizens' personal issues without
discriminating or ensuring fundamental rights and constitutional rights of
Indian citizens, irrespective of religion. It simply means that another set of
laws will replace all the current laws of Indian Citizens' different religious
In the Indian territory, the demand for uniform civil code dates back to the
time when some women activists in the early 20th century had put forward it with
the main motivation of women's equal rights and protection as well as equality
and secularism. Until independence, a number of legislative reforms were adopted
taking into account the idea of improving the condition and the wrongdoings for
women, particularly against the Hindu widows.
Although former Prime Minister
Jawaharlal Nehru and his supporter and the female activists had requested a
Uniform Civil Code for 1956, the disadvantage remains that the Muslim opposition
member had to accept the Hindu Codes Bill and also the uniform civil code in the
Indian Directive Principles of State Policy.
During the colonial period of Indian rule, Indian rule was held by the British
East India Company when Lord William (the then Governor General of India) wanted
to save women from the cruel Sati system and passed the Regulatory Statute
against it, when the UCC was formed. To grasp the concept of the Uniform Civil
Code, it is helpful to refer to Article 44 of the Indian Constitution (UCC).
appropriate law can be drafted by taking into consideration the changing social
environment and tailoring it to meet the needs of a newly forming society. What
should be implemented in the country is a source of debate and contention.
Should it be implemented in the country or not? As well as whether or not it can
be made uniformly applicable to a diverse population of people. What are the
obstacles that are preventing it from being implemented effectively will be
dealt in detail in this article.
During the constitutional debates, Dr. B. R. Ambedkar expressed his desire to
introduce a Uniform Civil Code in India, drawing inspiration from the western
world, where such a Uniform Civil Code was already in place, with the goal of
bringing uniformity and unity to society.
In spite of this, due to the vast
diversity of India's culture and religion, the idea of a Uniform Civil Code was
strongly opposed by the other members of the Constituent Assembly, who debated
whether the implementation of a Uniform Civil Code would infringe on the rights
of freedom of religion and the right to manage religious affairs, which are
guaranteed under articles 25 and 26 of the Indian Constitution, respectively.
Consequently, the Uniform Civil Code was left to be implemented by the
government in the future and was included in Part IV of the Constitution as one
of the Directive Principles of State Policy, which is found under the heading Directive Principles of State Policy.
The origins of the Uniform Civil Code in India can be traced back to the British
governance of India during the nineteenth century. They gradually consolidated
power over the entire country of India. It was previously the case that
different monarchs ruled distinct areas of the Indian Territory. Despite gaining
authority over a vast portion of India, the Mughals were never able to establish
unified rules that could be applied throughout the country.
When the British
ruled over India, one of the most difficult challenges they faced was governing
a country with a diverse population with a distinct set of religious beliefs.
The other issue they had to deal with was that the law and moral views were
jumbled together, and the law was not separated from the moral ideas. The
codification of laws was undertaken in order to address this issue.
Does India Have A Civil Code?
In most civil matters, Indian law follows a uniform code, which includes the
Indian Contract Act, the Civil Procedure Code, the Sale of Goods Act, the
Transfer of Property Act, the Partnership Act, and the Evidence Act, among other
things. States, on the other hand, have enacted hundreds of amendments,
resulting in a great deal of variation even within these secular civil laws in
If the framers of the Constitution had intended for there to be a Uniform Civil
Code, they would have included this subject in the Union List, which they did
not do, and thus given exclusive jurisdiction to Parliament over personal laws,
which is what they did not do. The term personal laws
, on the other hand, is
included in the Concurrent List. According to the Law Commission, a Uniform
Civil Code is neither feasible nor desirable, as it concluded in its report
published last year.
The Poll Results
There was disagreement in the Constituent Assembly over whether or not the
Uniform Civil Code should be included in the chapter on fundamental rights. The
issue was finally resolved through a vote. It was decided by a 5:4 majority that
the provision fell outside the scope of fundamental rights and that the Uniform
Civil Code should be considered less important than religious freedom by the
fundamental rights sub-committee headed by Sardar Vallabhbhai Patel, who was
appointed by the President.
Article 25 vs. Article 44
Article 25 of the Indian Constitution is the primary issue in implementing the
Uniform Civil Code. The country's minorities are opposed to the implementation
of the Uniform Civil Code by defending Article 25.
Article 25 guarantees for freedom of religion, which in the Constitution is a
fundamental right. According to this Article, a person is free to practise and
spread his religious choices. In many communities, religious practices that were
previously incorporated into their personal laws are still practiced today.
These communities argue that Article 25's right to religious freedom empowers
them to handle personal laws according to the laws of their community.
challenged to introduce the Uniform Civil Code as a breach of basic rights
according to Article 25. Article 44 is a State Directive Principle only that
cannot be enforced in courts but Article 25 is an enforceable fundamental right
However, secular activities are specifically excluded from the scope of Article
25. The State and not religion must deal with secular activities. This exclusion
is believed by the Uniform Civil Code advocates to cover personal laws. It is
important to stress out that matters such as divorce, adoption, and inheritance
are legal and not religious matters. In order to improve the application of
constitutional requirements, these questions can be split by faith. It is best
to separate law and religion. This is a long debate. This is a long discussion.
However, it cannot be argued that a Uniform Civil Code is necessary.
The Secularism Index Of India
The secularism and religious freedom guaranteed by the Indian Constitution have
served as the central tenets of the debate surrounding the UCC controversy. As
stated in the preamble of the Indian Constitution, India is a secular democratic
republic with religious freedom. This means that there is no official religion
in the country.
A secular state has no right to discriminate against anyone on
the basis of their religious beliefs. A state is only concerned with the
relationship that exists between people. It is not concerned with the nature of
man's relationship with God. It does not imply that all religions should be
permitted to be practiced. It implies that religion should not be allowed to
interfere with a person's everyday activities.
India adheres to a positive secularism philosophy that differs from the doctrine
of secularism accepted by the United States and some European countries, which
holds that there should be a wall of separation between religion and the state.
In India, positive secularism distinguishes between spiritualism and individual
In reality, not all Hindus in the country are subject to the same set of laws.
Hindu marriages between close relatives are prohibited by the Hindu Marriage Act
of 1955, but they are considered auspicious in the southern states of India. The
Hindu Code Bill takes into account the traditions of various Hindu communities.
In fact, it wasn't until 2005 that the Hindu Succession Act, 1955, could be used
to make the daughter a coparcener. The wife is still not the coparcener, as
previously stated. The property of a deceased person passes first to class-I
heirs, and if there are none, then to class-II heirs. This is true even today.
While the heirs of sons are promoted to class-I, the heirs of daughters are not
promoted to the same level.
In addition, there is no uniform application of personal laws among Muslims and
Christians. The local customs of Nagaland, Meghalaya, and Mizoram are protected
under the Constitution. Many states' land laws are discriminatory as well, with
daughters not inheriting landed properties when their fathers die in the
presence of their sons. According to a 2006 amendment in the state of Uttar
Pradesh, only an unmarried daughter is entitled to a share in agricultural
property. The distinction between daughters who are married and those who are
not married is arbitrary. They have been exempted from judicial review by being
included in the Ninth Schedule of the United States Code.
UCC! Why not?
Due to India's diversity, it's difficult to devise a standard and uniform set of
rules, but our government is attempting to formulate consistent principles.
Numerous people groups, the majority of which are minority networks, view the
Uniform Civil Code as an infringement on their rights to equal opportunity.
Concerning issues close to home, obstructing the state, as the constitution
prioritises one's preferred privilege over religious liberty. However, the
codification of uniform guidelines and its impetus may limit the scope of
religious opportunity. Bringing UCC is a difficult and extreme assignment, but
one that is not feasible.
Why is it impractical in India?
- Practical difficulties:
India is a country of great religious,
ethnic, and caste diversity. As a result of this cultural diversity, it is
practically impossible to develop uniform rules for personal issues such as
marriage. Additionally, convincing each community to abandon centuries-old
traditions in favour of a new law is difficult.
- Religious freedom violation:
Religious minorities view the UCC as an
infringement on their right to religious freedom. They fear that their
traditional religious practices will be supplanted by the majority religious
communities' rules and diktats.
- The state should abstain from interfering in personal matters:
constitution guarantees the right to practise any religion. UCC would constitute
a violation of that right.
- Sensitive and difficult task:
In order to create the UCC in its true
spirit, it must borrow from various personal laws, gradually amend them, issue
judicial pronouncements, ensure gender equality, and adopt expansive
interpretations of marriage, maintenance, adoption, and succession. These are
formidable tasks in terms of human resources. Additionally, the government
should be sensitive and objective throughout its interactions with the majority
and minority communities. Otherwise, communal violence may result.
- The time is not yet right:
there are already controversies
surrounding the beef ban, the saffronization of school and college curricula,
and love jihad, to name a few. At the moment, the introduction of UCC would
exacerbate the problem by increasing Muslims' insecurity and vulnerability to
fundamentalist and extremist ideologies.
The Contemporary Example: Goa
Following Independence, the State of Goa adopted the Portuguese Civil Code,
which applied a UCC to each of its residents. The married couple holds joint
ownership under this code in all advantages claimed and obtained by each
partner. Indeed, even parents can't completely exclude their children from the
property at all times. Muslims who have married in Goa are not allowed to
Every person in Goa is bound by the same laws concerning
marriage, succession and divorce. The communities are not subject to their own
laws. The Goa Civil Code does not have the same ability to apply to all citizens
of India, nor does it have the same application to all citizens of Goa. Article
44 is intended to have a greater impact by adopting an uniform civil code for
all citizens of India without regard to religious or ethnic affiliation.
The question of the uniform application of the Goa Civil Code can be answered
with the following facts:
- According to Gentile Hindus of Goa, Daman and Diu Codes of Customs and
Use, Hindu men are entitled to polygamy under particular conditions
- According to Gentile Hindus Codes of Uses and Customs, divorce in Hindus
is allowed only on the condition of the woman's adultery.
- Bigamy is also permitted on the grounds of the first woman's failure to
deliver any kid until she is 25 and the first wife's failure to deliver a
man's child until she is 30.
- Muslim males cannot perform polygamy if they are married in accordance
with the Code.
- Unfair adoption and rights of unlawful children
- After receiving approval from the office of civil registrar, Catholic
Christians can solemnise their marriage in the Church. However, Non-Catholics
can register their marriage only in the civil registrar's office.
- The preceding facts about the Code clarify that there are many such
deviations to it that it does not actually constitute a uniform code.
Exceptions to the practise of monogamy are only permitted for Hindus and other communities.
In comparison to legitimate offspring, the rights of illegitimate children are
likewise unequal. It is also important to note that Catholic and non-Catholic
marriages are treated differently.
This shows that it is not applied to all its residents uniformly. In this Code,
there are various loopholes.
The primary impediment to the implementation of the Uniform Civil Code is the
existence of insecurities among India's minority population. The majority, that
is, Hindus, already have personal laws that are codified and distinct from
religion. The minority is fearful of being subjected to majoritarian personal
laws. UCC believes in imposing majority rule on minorities. Minorities'
insecurity is evident in numerous instances. Discussing the possibility of
criminalising triple talaq sparked outrage among the Muslim community.
The Uniform Civil Code's intent and purpose are diametrically opposed to this
minority view. It is not imposing majority rule on the minority, but rather
imposing a uniform and secular code of civil law on all citizens of India,
regardless of religion.
- A collaborative approach will be required by the government and society
in order to build trust, but more importantly, they will need to find common
cause with social reformers rather than religious conservatives.
- Instead of taking an all-at-once approach, the government could
introduce separate aspects such as marriage, adoption, succession, and
maintenance into a uniform civil code in stages, rather than in one big
- Taking a Gender-Sensitive Approach: In addition to completing the
long-overdue transition to a uniform civil code, the government would be
wise to conduct a comprehensive review of several other laws that are
relevant to gender justice.
- Implementing a Pan-India Approach: The process of integrating Jammu and
Kashmir into the country's mainstream of family law is one that should be
replicated for Goa, Daman and Diu, Pondicherry, Nagaland, and Mizoram, among
other states and union territories across India.
Now, I'd like to conclude by saying that the secular laws should be made
gender-neutral first and only then should the country consider reforming its
religious laws. The only way forward is through piecemeal reform rather than the
enactment of the UCC in one fell swoop. In fact, a just code is preferable to a
uniform code in terms of effectiveness.
The fundamental rights of citizens to equality before the law and equal
protection under the law, as guaranteed by the Constitution, call for a similar
course of action to be taken in respect of these territories as well. As does
the provision of Article 44, which obligates the state to make reasonable
efforts to ensure that citizens have access to a uniform civil code throughout
the country's territory.
The fundamental rights of citizens to equality before
the law and equal protection under the law, as guaranteed by the Constitution,
call for a similar course of action to be taken in respect of these territories
as well. As does the provision of Article 44, which obligates the state to make
reasonable efforts to ensure that citizens have access to a uniform civil code
throughout the country's territory.
As the Common Civil Code would establish a plethora of laws to regulate the
private lives of all residents regardless of religion, it may be a critical
need. To be honest, it is the bedrock of genuine secularism. This dynamic shift
would not only assist in eradicating gender-based oppression, but would also
strengthen the nation's mainstream fabric and advance solidarity. There is a
need to alter our social framework, which is rife with inequalities, divisions,
and other factors that conflict with our Fundamental Rights.
The concept that underpins the implementation of the Uniform Civil Code is
extremely complex and must be fully grasped before proceeding. Law is dynamic
and changes in response to the demands of the time. UCC is also a concept for
dealing with discriminatory personal laws and adapting to the changing social
environment, among other things. The Code of Personal Laws is a secular code,
which is essential in a country like India, where the concept of secularism
a fundamental part of the Constitution's structure.
It is not implemented
consistently throughout India. The Goa Civil Code is the only uniform code in
the world that is not uniform in its application. It is only applicable to
citizens of Goa, and it also provides for some exceptions, which makes it
non-uniform in application. Additionally, the codification of Hindu personal
laws does not herald an end to the development of a uniform civil code. This is
a major issue that needs to be addressed to simplify in all possible ways.
Award Winning Article Is Written By: Ms.Priya Saw
Authentication No: SP35650420655-02-0921