An attempt at understanding Uniform Civil Code

Abstract

India, with its diverse cultures, religions, and ethnicities, reflects a rich tapestry. Despite the presence of a Uniform Civil Code (UCC) in the Constitution of India, over 75 years have passed without its implementation. The UCC proposal seeks legal consistency, driven by principles of equality, justice, and national unity. This paper is merely an attempt at exploring the historical context, challenges, and implications of the UCC, with a focus on gender equality and national integration.

Introduction

India, with its vast and vibrant tapestry of cultures, religions, and ethnicities, stands as a testament to diversity. This diversity is not only visible in the colorful celebrations, languages, and traditions but also deeply ingrained in its legal system. It has been mentioned in the Art. 44 of the Constitution of India: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India [1].” Even after more than 75 years have passed, such a code has not been implemented or even drafted. Although Directive Principles, where the concept of uniform civil code (hereinafter UCC) is mentioned, are unenforceable by any court according to Article 37[2], but they may affect the fundamental and essential religious rights; a very enforceable part of the constitution. The constitution simultaneously establishes that these principles are fundamental in governing the nation, and it is the obligation of the State to incorporate these principles when enacting laws.

The proposal for a Uniform Civil Code seeks to establish a standardized set of laws that would be applicable uniformly to all citizens in India, irrespective of their religious affiliations. This initiative is driven by the principles of equality, justice, and national unity. The existing diverse personal laws, which currently govern aspects like marriage, divorce, and inheritance based on religious practices, have been a subject of ongoing debate and contention. “The purpose concealed in the UCC is to eliminate the contradictions based on religious ideologies and promote the concept of national integration.[3]” The Proponents of UCC argue that it will create a legal landscape where all citizens, regardless of gender or religious affiliation, enjoy equal rights and protection under the law.

The principle objective of the Uniform Civil Code is to substitute personal laws rooted in the sacred texts and customs of various religious communities in India. It aims to achieve legal consistency by instituting a uniform set of laws governing personal matters, with the overarching goal of fostering national solidarity and social harmony. The supporters of UCC are of the view that all the citizens of the nation should be governed under a single law i.e. One Nation- One Law.

The UCC, if implemented, could serve as a catalyst for transformative change, addressing longstanding issues related to gender inequality, individual rights, and national unity. However, the path toward implementing a Uniform Civil Code is riddled with complexities, necessitating meticulous consideration of religious sensitivities, cultural nuances, and the delicate equilibrium between individual liberties and societal interests.

Background

The October 1840 Lex Loci Report underscored the significance and requirement for uniformity in codifying Indian law concerning crimes, evidence, and contracts. However, it proposed excluding the personal laws of Hindus and Muslims from such codification[4]. The Hindu laws gained prominence due to their relatively straightforward implementation. Both British and Indian judges favored this Brahminical system, possibly influenced by concerns about potential resistance from high-caste Hindus.”

The Muslim Personal Law, partially influenced by Sharia law, was implemented across various regions in India. However, its application lacked uniformity in lower courts due to the diverse local cultures among Muslims in different parts of the country. Even after certain communities embraced Islam, their practice of the religion was still heavily influenced by the prevailing local indigenous culture, leading to non-uniform application of Muslim law nationwide. Consequently, customary laws, often more discriminatory against women, took precedence. In northern and western India, women frequently faced restrictions on property inheritance and dowry settlements, that were provide under the Sharia provisions. Under the influence of the Muslim elite, the Sharia law of 1937 was introduced, stipulating that all Indian Muslims would be subject to Islamic laws pertaining to marriage, divorce, maintenance, adoption, succession, and inheritance. As a result, Hindus are bound by the Hindu Code Bill, whereas Muslims and adherents of other religions are granted the freedom to adhere to their own distinct laws. In the case of Muslims, the All India Muslim Personal Law Board, functioning as a private entity, formulates and oversees the application of these laws.

The All-India Women's Conference (AIWC) conveyed its dissatisfaction with the predominantly male-dominated legislature, as articulated by Lakshmi Menon during a 1933 AIWC conference, "If we are to seek divorce in court, we are to state that we are not Hindus, and are not guided by Hindu law. The members in the Legislative assembly who are men will not help us in bringing any drastic changes which will be of benefit to us.[5]"

The proposal for a Uniform Civil Code was presented in the Constituent Assembly with the following language(then article 39): “The State shall endeavor to secure for the citizens Uniform Civil Code.” Although its introduction was intended solely as a Directive Principle of State Policy, it encountered strong opposition based on two grounds[6]:It would infringe upon the freedom of religion guaranteed in Article 25 of the Indian Constitution and result in the oppression of minority groups. Furthermore, there was a suggestion to include the following exception.: “Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law[7].” The initial objection was countered by citing Article 25(2) of the Constitution of India, which articulates that, “Nothing in this article shall affect the operation of any existing law or preclude the State from making any law (a) regulating or restricting”—I am omitting the unnecessary words— “or other secular activity which may be associated with religious practices; (b) for social welfare and reforms [8].” In response to concerns about the Uniform Civil Code being perceived as oppressive to minorities, several counterarguments were put forth. Firstly, it was asserted that in advanced Muslim-majority nations, the personal laws of minorities were not regarded as so inviolable as to hinder the implementation of a Civil Code. Secondly, until 1937, with the exception of the North-West Frontier Province, in various regions across India, including the Central Provinces, the United Provinces, and Bombay, Muslims were largely governed by Hindu Law in matters of succession. To align them with other Muslims who adhered to the Shariat Law, the Legislature had to step in during 1937 and enact a law to apply the Shariat Law to the rest of India. This move faced opposition from various segments of the Muslim community.[9].

Dr. Ambedkar concluded the debate by following remarks: “[W]e have in this country a uniform code of laws covering almost every aspect of human relationship. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far, and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change” [10]. Towards the end of the debate, the motion advocating for Article 35 (now Article 44) was approved. Subsequently, in 1954, when presenting the Hindu Code Bill instead of the Uniform Civil Code in Parliament, Pandit Jawaharlal Nehru made the following statement, “I do not think that the present moment the time is ripe in India for me to try to push it through [11].” Uniform Civil Code has ever since, been patiently waiting for the right time [12].

The debate would re-emerge in 1985 during the Shah Bano case, where the Supreme Court affirmed a Muslim woman's entitlement to seek maintenance from her husband post-divorce. Faced with pressure from conservative factions, the Congress party government under Rajiv Gandhi passed legislation in parliament to override the Supreme Court's decision. This action reignited accusations from the Hindu right, suggesting that the Indian state prioritized women's rights only when it entailed modifying Hindu practices.

Implications Of The Uniform Civil Code In India

The Uniform Civil Code (UCC) has been a subject of considerable debate in India, with proponents advocating for legal uniformity to promote national integration and gender justice, while opponents argue that it could infringe upon religious freedom and cultural diversity.

One of the primary arguments in favor of the UCC is its potential to advance gender equality. Article 44 of the Directive Principles of State Policy is based on the idea that there is no real difference between men and women in personal matters. A uniform set of laws could eliminate gender-based discrimination present in many personal laws, promoting equality in domains such as marriage, divorce, and inheritance.

Women's organizations like the All-India Women's Conference (AIWC) stressed the need for a UCC primarily due to the belief that a standardized set of laws would foster unity in a nation divided along religious community lines[13]. In the 1960s, the AIWC (All India Women's Conference) and various women's organizations actively advocated for a Uniform Civil Code (UCC) to establish gender-just laws applicable to women across all communities. However, this demand became notably more intricate, especially after the Shah Bano issue in the mid-1980s, which introduced additional layers of complexity to the discourse surrounding the implementation of a UCC.

Historically, India has always been a Patriarchal society and it can be seen in the discriminatory personal laws that govern the various societies within it. The UCC could benefit women is in matters of inheritance and property rights. The existing personal laws often discriminate against women in terms of inheritance. Implementing a uniform code could establish clear and consistent consistent framework, ensuring that women have equal rights as men to inherit property, fostering financial independence and economic empowerment. Under Hindu succession laws, in the case of a Hindu woman as the owner, assets are inherited by her husband and children in equal shares. In the absence of these immediate family members, the property is directed to the heirs of her husband. Failing that, the property then passes to her parents. The Indian Succession Act of 1925 provides no entitlement for Christian mothers in the property of their deceased children, all such property is designated to be inherited solely by the father.

UCC could serve as a protective shield for women against regressive practices such as child marriage. “A uniform code would unequivocally declare such practices as illegal, providing a legal deterrent and a pathway for justice for women who are disproportionately affected by these practices." Matrimonial laws in India often vary across religious communities. This creates confusion particularly in matters of marriage, divorce, and maintenance. A UCC could streamline these laws, providing a consistent and clear legal framework that treats men and women equally in marriage-related matters.

Minority communities argue that the Uniform Civil Code jeopardizes the sacredness of their religious laws and, consequently, poses a threat to their religious identity. More recently, the resistance stems from the concern that a UCC might essentially be a manifestation of Hindu law, which would then be uniformly imposed on all. Therefore, they will be stripped of their identity while being forced to accept an identity and customs alien to them. They see it as a threat to their rights and strengthening the Hindu hegemony. The loudest supporters of the implementation of UCC are the Right-wing Hindu Males and the Women’s Rights groups, both with contradicting intentions. After the enactment of the Muslim Women's Act of 1986, Hindu political parties have intensified their promotion of a Uniform Civil Code, primarily aiming to eliminate the perceived "privileges" of minority men.[14]. They are of the view that if the court can intervene in the personal laws of the Hindus then this interference should be allowed in the personal laws of Muslims as well. This peculiar view of the Hindu Right wing groups have also damaged the credibility of the Women’s Rights groups.

Critics argue that the UCC, while aiming for gender equality, may not be a panacea. The matter of gender justice is intricately linked to the social context, and the imposition of a uniform code might not necessarily tackle entrenched cultural and societal biases. The challenge lies in addressing the root causes of gender inequality embedded in social norms, irrespective of legal uniformity. Proponents assert that a UCC can contribute to national integration by fostering a sense of unity among citizens. A uniform legal framework is seen as a means to bridge religious and cultural divides, promoting a cohesive national identity.

Many European Nations and US have laws that is equally applicable to all its citizens, regardless of their religious beliefs, but India is no Europe or America. India has always been a land of diverse cultures, languages, races, ethnicities and religions. It is said that after a few kilometers, the local dialect changes along with the culture and cuisine. India has always accepted people of varying degrees with its whole heart. Therefore, critics contend that imposing uniformity might overlook the rich tapestry of India's cultural diversity. India is a land of diverse cultures, and any attempt to impose a uniform code might undermine the principles of cultural pluralism. The challenge is to strike a balance between national integration and respecting the distinct identities within the nation.

There is also the question of removal of certain exceptions enjoyed by citizens belonging from other than north india, the removal of these rights due to the enactment of the UCC can create an anti-government sentiment instead of fostering a national identity. The realization of a Uniform Civil Code (UCC) in India hinges significantly on political will, defined by the commitment of political leaders to enact substantial legal reforms for the collective good. A harmonized legal framework, applicable across religious communities, necessitates a united and determined effort from policymakers. Achieving political consensus is crucial for implementing legal reforms. The realization of a Uniform Civil Code (UCC) demands a dedication from political leaders to transcend party affiliations and prioritize the broader national interest.

A major advantage of political will is its potential to foster consensus across party lines. A committed political leadership could rise above partisan differences, recognizing the UCC as a collective endeavor to promote national integration and uphold individual rights. Political will plays a crucial role in driving social reforms through legislative action. Championing the cause of a UCC requires political leaders to confront inherent challenges, including potential backlash from conservative factions. However, political will faces formidable challenges, often entangled in the dynamics of electoral politics and the sensitive nature of religious issues. The UCC, being a politically charged topic, is susceptible to exploitation for short-term gains. Critics argue that political motivations often overshadow the genuine pursuit of legal reform. The UCC debate is often used as a political tool rather than a sincere effort to address complex legal and social issues. The lack of genuine consensus impedes meaningful progress.

Suggestions

The complexities surrounding the implementation of a Uniform Civil Code (UCC) in India require a thorough examination, considering factors like religious sensitivities, cultural nuances, and individual liberties. Crafting effective suggestions for policymakers involves navigating these complexities to establish a harmonized legal framework. Key recommendations include acknowledging and respecting the diverse religious and cultural landscape by engaging in open dialogues with religious leaders. Policymakers need to demonstrate genuine political will, transcending party affiliations for the collective national interest. Achieving consensus on minority rights is crucial, involving active engagement with representatives of minority communities. Balancing national integration and cultural diversity is imperative, recognizing India's rich cultural tapestry while fostering unity. Addressing root causes of gender inequality requires a nuanced approach, extending beyond legal uniformity to include educational initiatives and awareness campaigns. Policymakers should be aware of societal biases and incorporate measures in the UCC to actively challenge and mitigate these biases, promoting a more inclusive and equitable society.

Conclusion

In conclusion, the appeal for a Uniform Civil Code in India resonates within the intricate tapestry of its diverse society, embodying both a desire for legal consistency and apprehensions about safeguarding cultural pluralism. With the roots of this debate embedded in the Constitution, the notion of a UCC has faced persistent challenges, primarily due to its potential impact on religious freedoms and cultural identities. The quest for a UCC is propelled by noble ideals of equality, justice, and national unity. Advocates of the UCC argue that such a code would not only eliminate gender-based discrimination present in personal laws but also serve as a catalyst for transformative change in addressing issues of gender inequality, individual rights, and national unity. The UCC, if realized, could offer a consistent legal framework, harmonizing diverse personal laws and fostering a sense of unity among citizens.

However, the journey towards a UCC is fraught with complexities. The sensitive balance between individual liberties, cultural nuances, and the preservation of religious identities poses significant challenges. The debate encompasses varied perspectives, with proponents emphasizing the potential for gender justice and national integration, while critics express concerns about the erosion of cultural diversity and the potential infringement on minority rights. The historical backdrop reveals the persistent struggle to address personal laws, with Hindu and Muslim laws evolving under different influences, contributing to the existing diversity. The Shah Bano case in 1985 and subsequent political maneuvers underscore the intricate interplay between legal reforms and political considerations, further complicating the path to a UCC. The implications of a UCC on women's rights, inheritance, and societal norms are significant, promising potential benefits but also requiring careful consideration. The clash of opinions among various groups, including right-wing Hindu males, women's rights advocates, and Conservative Muslim Voices further underscores the complexities surrounding the implementation of a UCC.

Ultimately, the realization of a UCC in India hinges on political will. Political leaders must navigate the delicate balance between addressing societal issues and the inherent challenges posed by electoral politics and religious sensitivities. Genuine consensus and a united effort are essential to overcome the hurdles and bring about substantive legal reforms that align with the principles of justice, equality, and national unity. The journey towards a UCC remains a dynamic process, reflecting the ongoing evolution of India's socio-legal landscape.

[1] INDIA CONST. art. 44.

[2] INDIA CONST. art.37.

[3] Siddharth Anand Panda & Samyak Mohanty, Uniform Civil Code: Unified Laws and Divergent Ways, Vol-4, JLPP.215, 215 (2017).

[4] Anil Chandra Banerjee, English Law in India 134 (Abhinav Publications 1984)

[5] Nandini Chawan and Qutub Jehan Kidwai, Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code 84. (Hope India Publications 2006)

[6] D. C. Manooja, Uniform Civil Code: A suggestion, 42 Journal of Indian Law Institute,448,452(2000).

[7] Mr. Mohammad Ismail Sahib, in Constitutional Debates.Constituent Assembly Debates: Official Report, Volume VII 540. Link . (Last Visited Nov. 13, 2023)

[8] KM Munshi in Constitutional Debates. Constituent Assembly Debates: Official Report, Volume VII 547. Link . (Last Visited Nov. 13 2023)

[9] Dr. B. R. Ambedkar in Constitutional Debates.Constituent Assembly Debates: Official Report, Volume VII 550. Link . (Last Visited Nov. 13 2023)

[10] Preethika Pilinja, Uniform Civil Code, Constitution of India and Constitutionalism, Vol-4, JLPP.113, 115 (2017).

[11] N.R. Madhava Menon (Ed.), National Convention on Uniform Civil Code for All Indians,7(1986).

[12] Id.

[13] Archana Parasher, Women and Family Law Reform in India: Uniform Civil Code and Gender Equality 241. (SAGE Publications 1992).

[14] Rajeswari Sunder Rajan, Women between Community and State: Some Implications of the Uniform Civil Code Debates in India, vol. 18 no. 4 Social Text 55-82, Project MUSE Link . (Last Visited Nov. 13, 2023)