a land of 1.38 billion people, 1652 languages, 1208 castes, 29
States, 7 Union Territories and 6 major identifiable religions, stands out as
one of the (if not the most) diverse nations that the world is blessed with.
Although it is this diversity that every Indian celebrates and is proud to be
associated with, oftentimes it is this inherent characteristic of the Indian
society that acts as the immovable yet very visible impediment upon the road to realisation
of Unity in Diversity
To this very context applies today's most
heated discourse, the practicability, and challenges of applying the Uniform
Civil Code in India, a discourse to which we shall try to add some logic and
reasoning in a bid to understand the rationality of the same.
As is evident from the statistics above, the Indian Union is home to a very
large multi-linguistic populace who profess and practice from a pool of
religions, the number of which is by far the largest in the world. Since Part 3
of the Constitution guarantees to each and every individual, the right to follow
the religion of his/her choice, the people of India are free to choose a
religion which they want to associate themselves with. It is this fundamental
right which is the reason we have the world's largest functioning secular
democracy in the world.
However, with the freedom of religion come a lot of challenges.
allows people to practice the religion of their choice, it invariably allows
them to be governed in their personal matters by their own religious laws. This
means that a Hindu and a Muslim would be governed by their own personal laws
when it comes to marriage and divorce. This essentially sparks the debate
between people who call this an act of inequality vs the supporters of the
theory of "separate but equal" (propounded in the infamous case of Plessey vs
Ferguson, USA 1896). This is the precise reason why discussion on UCC is the
need of the hour.
Uniform Civil Code-the History
The concept of Uniform Civil Code isn't something that has dropped into today's
context all of a sudden. Way before the tri-colour was even hoisted on the Red
Fort, our previous master's aka the Britishers had introduced a system which was
somewhat similar to what a proposed UCC would look like. They, for the first
time had brought the entire Indian population under one set of uniform laws in
matters of crime, evidence and contract, based on the Lex Loci report of 1840,
the framework of which is followed till today.
The difference however was that
at that time, the Britishers felt it essential to keep personal laws of the
Indians outside the purview of the common justice system on the assumption that
any hindrance to these set of religious practices could become an obstacle in
their raj over the Indian Empire.
For this specific reason only, when after the
revolt of 1857 (popularly known as the First War of Independence), the Indian
Empire was transferred from the erstwhile East India Company to the British
Crown, the Queen categorically, in her proclamation mentioned that her raj would
not interfere with the personal laws of the Indians. This was done to keep the
Indians in her confidence.
So, in simple words, the Uniform Civil Code refers to a set of laws and
regulations which if brought into force would replace the current system of
personal laws in India and would govern all Indians regarding marriage,
succession, adoption etc. It would do away with the present system where
different people are subjected to different laws based on their religion and
would incorporate a system where there lies no difference in justice served to a
Hindu or a Muslim.
Problems with the personal laws in India
One of the primary questions that remains is why all of a sudden, the need for
UCC is felt when for a considerable amount of time we have been subjected to our
own personal laws. It is to answer this problem that one must take a look at the
prevailing problems in the personal law system of India.
Gender Bias: For long this has been the primary drawback of personal laws in India, the
fact that they are grossly discriminating against the feminine population.
The female population of the country has been subjected to discrimination
irrespective of the personal law to which they subscribe to whether it be
the imposing of purdah system, allowing polygamy and unilateral
divorce in the Islamic law to the deprivation of heirship as a part of the
Mitakshara school of Hindu law.
This is perhaps the biggest reason why the
progressive Indian for long has been asking for a much reformed and
gender-neutral personal laws. It is not that none of that has been answered.
After the landmark judgement of Lata Mittal case [i], a case which was fought for
over 20 years, that Hindu daughters got equal rights in ancestral property via
the passing of the 2005 Amendment to the Hindu Succession Act. Also, the
landmark judgement of Shayara Bano vs Union of India [ii] has seen the
Triple Talaq pronounced by Muslim men to be deemed unconstitutional.
Court's reluctance to interfere in personal lawsAs time has passed,
the courts have taken a more progressive view on when it comes to passing judgements
on matters pertaining to personal laws. However, that has not always been the
case. Over the years we have seen instances when the courts have been very
reluctant to enter into personal religious laws and strike them down as being
void on the touchstone of the fundamental rights like in the case of Krishna
Singh vs Mathura Ahir [iii] and more famously in the case of Ahmedabad Women
Action Group vs Union of India [iv]. There have however also been instances where
the court has struck down parts of personal laws as being violative of the
fundamental rights like in the famous case of Gita Hariharan vs Reserve Bank of
India [v] where it was admitted by the court that the mother can become the
natural guardian even if the father is alive.
UCC in India - The hurdles
The very fact that the proposal of a Uniform Civil Code has been laid down in
the Directive Principles of State Policy goes on to show that the Constitution
makers had the idea of a uniform personal law in their mind but taking into
account the fragile nature of the Indian Union at that point where the country
had just gone through a partition based on religion, they chose to put that
provision in a non-enforceable part of the Constitution and allow the people of
India to be governed by their own personal laws. More than 70 years later, there
lie a lot of challenges in implementing a common civil code across the length
and breadth of the country.
Vast Personal Laws: As discussed earlier, India is home to several
religions each governed by their own set of personal laws. The Hindus are
specifically governed by the Hindu Marriage Act of 1955 when it comes to
marriage, the Hindu Succession Act of 1956 for matters related to succession and
property, The Hindu Minority and Guardianship Act of 1956 when it comes to
matters relating to parent's rights and guardianship of children alongside the
Hindu Adoption and Maintenance Act (1956).
These provide laws which would apply
only to Hindu's the definition of whom is also given in this Act itself. Just
like Hindu's, the Muslim's in India are governed by their own set of laws given
under the Muslim Personal Law (Shariat) Application Act of 1937. Unlike the
Hindu's who have various acts to govern each matter relating to them, the
Muslims have all their nuances written down under this one act itself. Just like
the Hindu's and the Muslim's the Parsi's and Christians also have their own set
The presence of so many different laws make it difficult for them to be
incorporated into one single code with it being a herculean task to provide
justice to each provision of the said acts under the umbrella of one law. The
varying and conflicting provisions of the various personal laws make it a point
of conflict as to what to take and what to omit.
The Constitutional Barrier: While the progressive Indian would view UCC
as a welcome way forward, some legal minds are of the opinion that the
implementation of the same would be a violation of the fundamental rights of an
individual who has the right to practice and profess any religion which he/she
wants. The Courts might interpret the UCC as a direct attack on this fundamental
fabric of the constitution and strike it down as being violative of the basic
tenets of the supreme law of the land.
Although the presence of Article 44 of
the Directive Principles of State Policy which states that the Government must
ensure the application of a uniform civil code, that might be the grounds on
which it can be defended in court. However, the non-enforceability of the
Directive Principles of State Policy would make it a very weak argument indeed,
but it would be very interesting to see, if in the future the UCC is
implemented, what stands both sides take in the court of law. One thing is for
sure, the UCC will be challenged as being violative of the fundamental freedom
of the individual to practice and profess any religion.
The Absence of Education: India has a plethora of problems that it is
currently dealing with, the primary of them being the absence of quality
education amongst the masses. The rural Indian is unaware of science and the
development and hence finds his/her solace in resorting to religious practices.
It is through this attachment with religion that people think of attaining
salvation (the concept of Moksha according to Hindu scriptures) and hence the
implementation of UCC, which in some ways would be an attack on this attachment
is a risky affair for law makers because of the repercussions it would have on
the Indian society, especially on that part of the society which sees religion
over and above everything else.
Self-motivated religious groups: Irrespective of any religion, one thing
that we all come to an agreement on is the fact that the Indian Society is full
of self-centred religious groups and organizations who pretend to be working for
the upliftment of their faith, their belief, but in real life are only working
for themselves and care little about the common man. These institutions, headed
by self-proclaimed leaders care little about the backwardness of the religion
and finding the solution to them. Instead, they care about creating ruckus
amongst the masses for anything progressive. This adds to the problem that a
large majority of the Indian mass is uneducated and hence they end up believing
whatever the religious guru's offer.
A government will never be politically neutral: The crux of the matter
remains that governments may change, the right wing, the lift wing or the
centrists may be in power, but what doesn't is the fact that they are all
politically motivated in some way or the other. The very fact that a Uniform
Civil Code would have tremendous impact on the common masses make them hesitant
to implement the same.
They fear that in the process of shifting from personal
laws to a uniform law, they might end up hurting a large part of the Indian
population and end up losing the next election. For this very reason,
governments over the years have mentioned UCC in their election manifestos but
when in power have remained silent on the same. They realise people here are way
too connected to their religion and any hindrance to the free practice of the
same (even if detrimental to themselves) would be treated by the people as a
personal attack. This lies as one of the biggest hurdles to the implementation
The Covid 19 Pandemic: What might not look like a direct hindrance in the
path of UCC, the Covid 19 pandemic is a big obstacle in getting a uniform civil
code up and running anytime soon. The fact that the resources of the country are
stretched thin to meet all the present requirements, makes it next to impossible
to think of the procurement of the requisite machinery required to implement the
Uniform Civil Code. However, this is one of those temporary obstacles that will
move aside in the coming years.
The Goan model - is it uniform?:
Goa is one of those states where there
is a "uniform" civil code in operation. However, much has been debated upon
whether it is uniform or does it endorse the uniformity in discrimination
concept. Even in Goa, the procedure for registration of the marriage is
different for the Catholics and the non-Catholics. Moreover, although the law
there talks about husband and wife having equal right in matrimonial property (a
unique concept which is not present in any personal laws), the control button
is effectively still in the hands of the husband because the right of
administration of the property, except the property exclusively belonging to the
wife, is still in the hands of the husband. Considering these, among many other
factors, one can't help but wonder if the Goa model of the Civil Code is the
predecessor to which we should be looking forward to in the coming days.
From the above we see that it is tough to think about a nationwide law which
would govern all the citizens of the country because of the various impediments
it would face. However, at the same time we do see the presence of the UCC given
right under the Constitution which shows that our founding fathers, although not
in the position of implementing it back then, had seen the dream of an India
where everyone would be governed by a common personal law.
Apart from that we
have seen the Supreme Court being critical of the government in the recent past
for not being able to implement the Uniform Civil Code even though there have
been exhortations from them in the Shah Bano
[vi] and the Sarala Mudgal case
It is this dream that we, all the progressive thinking Indians are waiting for
and if we follow a few simple steps like being more aware, more rationale, more
open-minded and more accepting then that day is not far when everyone in India
would be treated the same, irrespective of their religion.
"I personally do not understand why religion should be given this vast,
expansive jurisdiction, so as to cover the whole of life and to prevent the
legislature from encroaching up on that field"- Dr B.R. Ambedkar
(Constitution Assembly Debates)
Written By: Mr. Saikat Mukherjee
- Writ Petition (C) No. 118 of 2016.
- AIR 1980 SC 707
- 1997 3 SCC 573
- 1999 2 SCC 228
- AIR 1985 SC 945
- AIR 1995 SC 1531
, A 3rd year BA LLB student at Symbiosis Law
Email - [email protected]