THE UNIFORM CIVIL CODE.. India’s Tryst With The Elusive Code That It Needs To Remain United (Aug'23)

The Constituent Assembly of India was elected in 1946 to write the Constitution of a newly independent nation. The motley crowd of 389 erudite members with impeccable records gave us our Constitution that has been revered by all of us, ever since. Though this Assembly gave us the Constitution that we now behold, it also failed in the process to give us a constitutional framework on a number of issues. Eventually such intractable governance practices were included in a statement called the Directive Principles of State Policy (DPSP). This was primarily meant to establish a social and economic democracy and a welfare state in India. DPSP also included (it still does) a Uniform Civil Code (UCC) aimed to establish a uniform legal framework for all citizens, regardless of their religion. Article 44 in the DPSP, found in Part IV of the Constitution, states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. A statement that is easier said than done. The Assembly had to balance the inclusion of Fundamental Rights, which protect individual liberties, with the Directive Principles of State Policy, which outlines the government's responsibilities in securing social and economic justice. The debate revolved around how to prioritse these principles and whether certain rights should be justiciable. In one sense, the framers of the Constitution thus left to the coming generations to find solutions themselves to some of the thorny issues that they themselves could not resolve. UCC was one such.

The UCC refers to the idea of having a common set of laws governing personal matters such as marriage, divorce, inheritance and adoption for all citizens, irrespective of their religious affiliations. Currently, in India, personal laws related to these matters are based on religious customs and are different for each religious community (such as Hindu, Muslim, Christian and Sikh). Implementing the UCC has been a topic of intense debates and controversy in the country ever since Independence. Proponents of a UCC argue that it would promote gender equality, social justice, and in the process national integration. They believe that having a common set of laws for all citizens, irrespective of their religious beliefs, would ensure equal rights and opportunities for women and eliminate discriminatory practices embedded in the personal laws. Opponents, on the other hand, argue that personal laws are a matter of religious freedom and should be preserved to maintain the diversity and plurality of the Indian society. They contend that imposing a UCC would infringe upon the religious rights of minority communities and thereby undermine their cultural identity.

The implementation of the Code has been patchy because India is such a diverse country with various religious communities following their own personal laws. For example, the laws of succession for most religions are skewed towards the male children of a person who dies ‘intestate.’ Similarly, while some religious and customary personal laws permit polygamy and polyandry, others do not. The same is the case with grounds for divorce and alimony. Many BJP ruled states have expressed their intent to implement the UCC though their implementation would depend on the initiative taken by the Central government. However, in Goa people of all religions are subject to the same laws on marriage, divorce and succession, for the State follows the Portuguese Civil Code. The clamour for a UCC came up strongly subsequent to the Supreme Court ruling in the Shah Bano case. The Supreme Court had ruled that a Muslim woman who is divorced by her husband be given financial support by law. This led to a huge backlash from the minority community as this was against Muslim personal laws. Rajiv Gandhi, the then Prime Minister lost his nerves, and reversed this decision for fear of losing Muslim votes. Above all, the supporters of UCC believe that UCC would ensure equality of genders and religions and more importantly prevent discriminatory practices especially against women. The UCC, if implemented, would reinforce the principles of secularism in India. UCC will make legislation of rules of succession and divorce relatively more uniform and fairer thereby freeing them from religious personal laws. Those opposed to UCC has one seminal argument in that they believe in a diverse country like India where various cultures coexist such laws should not be implemented without the wholehearted support of minority communities.

The Indian government has periodically examined the possibility of implementing UCC but has not taken any decisive steps towards its enactment. The issue remains a subject of contentious debate and is often influenced by political and religious considerations. The practicability of implementing a UCC in India is a complex and multi-faceted issue. It involves considerations of legal, political, social, and religious factors. The feasibility and challenges associated with implementing a UCC can vary based on various perspectives. Here are some key points to consider:

1.      Legal Complexity: India is a diverse country with multiple religious communities, each with their own distinct personal laws. Harmonising these diverse laws into a single Code would require extensive legal reforms and careful consideration of our core constitutional principles. It would involve reconciling conflicting provisions, addressing specific customs and practices, and ensuring that the Code is consistent with the fundamental rights as enshrined in the Constitution.

2.      Religious and Cultural Sensitivities: Implementing a UCC raises concerns about religious freedom, cultural identity, and the rights of minority communities. Opponents argue that personal laws are integral to religious practices and should continue to be protected. Implementing a UCC would require addressing these concerns while ensuring that the rights and beliefs of all citizens are not only respected but also protected.

3.      Social Acceptance and Consensus: Introducing a UCC would require broad social acceptance and consensus among various religious and cultural groups. Achieving consensus on a common set of laws that satisfies all communities can be daunting due to deeply held beliefs, traditions, and diverse interpretations of myriads religious texts.

4.      Political Will and Administrative Capacity: Implementing a UCC would require unwavering political will and a comprehensive approach from the government. It would involve enacting legislation, addressing potential legal challenges, and ensuring effective enforcement. The government would also need to build administrative capacity to manage the transition and educate citizens about the new legal paradigms.

5.      Gender Equality and Social Justice: Proponents argue that UCC would promote gender equality by eliminating discriminatory provisions in personal laws. They believe it would contribute to social justice and equal rights for women. However, there are concerns about the potential impact on vulnerable groups and ensuring that the new Code safeguards the rights of all citizens.

Given these complexities and reservations, the practicability of implementing a UCC in India had always remained a subject of endless debates. With so many States in India ruled by so many Parties with diverse religious ideologies, UCC requires serious and elaborate deliberations still. It would involve a thorough reassessment of legal, social, and religious implications, as well as extensive consultations with various stakeholders to build consensus and ensure the protection of individual rights and cultural diversity. The choice before the government is clear. It can either continue with the status quo by kicking the can down the road or bite the silver bullet through an acceptable solution to all political parties and religious groups.

On 27th June 2023 Mr. Narendra Modi sounded the poll bugle in an election rally in Madhya Pradesh making it clear what is going to be the central theme in the coming general elections in 2024. It was a call to vote for a Uniform Civil Code thereby polarising the votes on expected lines. The issue of UCC is an article of faith for the BJP and its Hindutva allies. Moreover, in a country with a majority of Hindus, UCC is a highly emotive issue to rally citizens. Meanwhile, the Law Commission had already called for opinions from the public on the subject of UCC. UCC is conceptualised as a set of laws that govern personal matters, including marriage, divorce, adoption, inheritance, and succession, for all citizens regardless of their religion. It aims to replace the existing diverse personal laws that vary based on religious affiliations. Secularism is a core principle in the Indian Constitution aiming to maintain a separation between religion and the state. It advocates equal treatment of all religions and emphasises the neutrality of the state in matters of faith. A discussion on UCC has progressively become a dangerous political pastime in India for obvious reasons. Let me see if I could tread this minefield while remaining apolitical at the same time. For a law to succeed, the letter and spirit of the law should carry conviction with the constituents. This tenet as laid down by the United States Supreme Court in 1886 (Yick Wo vs Hopkins) expounds thus: “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by a public authority with an “evil eye and unequal hand”, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” Well said Your Honour!

According to Farrah Ahmed, the author of the book “Religious Freedom under the Personal Law System,” the need for reforms of personal laws is clear: the present rules are unjust, harmful, discriminatory against women, and contrary to constitutional guarantees of gender equality. Once the assumptions that have become entrenched in the UCC debates are questioned, the merits of the proposed model of family law reform become evident. Before ushering the UCC what is required is a proposal that seeks to address the stalemate that has arisen in Indian family law from the tension between a constitutional directive to enact a UCC and the deep concerns about the UCC as well as how it is being debated. In any reform process the women are inevitably the primary sufferers. Ahmed clamours for the implementation of a UCC in India preceded by a well-regulated state-recognised regime of religious ADR – Alternate Dispute Resolution mechanisms. Harish Salve, the noted lawyer says presciently “religions have disempowered women and the UCC will empower them.” He further goes on to say, “the Uniform Civil Code prevents the Indian citizen from being forced to follow his own religion and that UCC is not against diversity but is against compelled diversity.”

In a commentary on UCC in the “Frontline” in 2013 the magazine states thus: “Fragmentation of religious authority, greater debate and dissent within communities, and increasing literacy and awareness among women have transformed the landscape of personal laws and made the old debate over a uniform civil code largely irrelevant”. In the same issue of the magazine Rohit De, legal historian and a Mellon Research Fellow at the Centre for History and Economics, University of Cambridge and at Trinity Hall opines thus: “The UCC debate can no longer be played out by placing minority rights and women’s rights in opposition to each other or on the fault lines of Hindutva and secularism. As the legal scholar S.P. Sathe had presciently written, uniform does not imply common, and the experiences of the last decade have shown that it is possible to secure reasonable uniform rights and duties through different regimes of law. This has been possible because of the fragmentation of religious authority, greater debate and dissent within communities, and growing literacy and awareness of women rather than a process of centralised codification.” This is what Hameed Chennamangaloor, an author and social critic from Kerala had to say on the subject of UCC. “The objective of the UCC is not to bring uniformity in religious faith but to codify family laws for all communities. Many Muslim organisations are spreading misinformation that the community will have to do away with religious beliefs and rituals. The practices associated with marriage and burial of any religious community have not been discontinued when child marriage was banned. Any cultural practice that discriminates against women and asserts male dominance should definitely go. For example, polygamy is legal according to the Muslim Personal Law (Shariat Application Act), 1937, but it is against women. However, the Muslim Personal Law is not applicable to Muslims who marry under the Special Marriage Act.”

Permit me to quote an excerpt from the same magazine: “In 1950, the Constitution of India under Article 44 laid down that the state should endeavour to establish a UCC for its citizens. There were two sources of support for a UCC, liberal nationalists such as Minoo Masani who argued that community-based personal laws were a danger to national consolidation and women leaders such as Hansa Mehta and Amrit Kaur who saw personal laws as greatly disadvantaging women. However, demands for a UCC were opposed not just by the minorities but by a considerable number of conservative Hindus, who viewed this as excessive interference by the state. Debates over the Hindu law reform, rather than intervention in Muslim law, were the focus of political battles, and it was only the electoral victory of 1952 that gave Jawaharlal Nehru the legitimacy to enact the Codes. It is often forgotten that before the Hindu Code, Hindu law was much behind Muslim personal law in terms of rights given to women: Muslim women could hold and inherit property, their consent was required for marriage, they could act as guardians of minor children and, after the reforms of 1938, also initiate divorce”.

Legally and logically and also based on equity, the case for UCC stands eminently justified. The ruling Party appears to be hell bent on implementing UCC if and when they come back to power. When the proposal was broached by the PM, the objections were muted at best. Some of the Opposition Parties even extended conditional support to the proposal. It looked as if they were searching for credible arguments against the UCC after evaluating their electoral benefits. By now it is clear that the objections were primarily based on political convenience rather than ideological convictions. For the political parties in India the time has come to take a stand. Apart from these political differences there are intractable administrative and legal issues to surmount. The BJP is busy now trying to repair the damages suffered by their inept handling of the Manipur crisis. In UCC you need measures to be taken against some religions and some tribal practices rooted in customs especially the Northeast. In the present political climate post Manipur, the situation has become that much more difficult to get the support of the Triabal leaders to join ranks with the government. Consequently, there is every likelihood of the Code getting implemented in phases starting with the religious practices to begin with.  The second phase that may follow could include tribal practices.

In the end, it is for the present generation to decide what is good for the country. In fact, it is incumbent on them to pursue the path keeping their personal preferences and political affiliations. It is a moot point that Indians have consciously avoided taking a decision on UCC for seventy-five long years. It is fine if the decision is not to take a decision based on  certain principles. It is not kosher not to take a decision on this just because it is convenient. The notion that it violates religious freedom lacks logic and reasoning. Implementing UCC will promote equality and justice for all genders across different communities. India definitely requires a Uniform Civil Code that is fair and unbiased. It should be a secular code that does not favour any particular religious group. The Code should be founded on the Directive Principles of State Policy as outlined in the Constitution. Implementing a Uniform Civil Code will promote equality and justice for all genders across different communities. It is legal, logical and equitable. Above all, it is a solemn promise that we have made to ourselves.

While writing this piece I am guided by a quote that goes something like this: “India lives in the comfortable consciousness of diversity and not in the cognitive recognition of differences.” I do not know who wrote this sagacious statement.

Author’s Note: It is perhaps easy for the author of this article to take the above views on the subject of UCC by virtue of him being a Hindu. This note is to reiterate the fact that he has been extremely conscious of this fact to ensure that this piece is written with utmost rectitude to remain neutral towards all stakeholders. It is unfortunate that the atmosphere in the country has increasingly become so fissiparous, necessitating a disclaimer of this kind.

Thank you.

Venkat R Venkitachalam