UNIFORM CIVIL CODE – The Core IAS

UNIFORM CIVIL CODE

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WHY THIS DEBATE

  • Prime Minister Narendra Modi has said the implementation of a Uniform Civil Code (UCC) was imperative for India, citing the impracticality of maintaining a dual legal system that caters to distinct communities.
  • In addition, the 22nd Law Commission released a new notification on June 14, with the aim of gathering perspectives from diverse stakeholders, such as public and religious organisations, regarding the UCC. The UCC elicits diverse perspectives and discussions, primarily owing to its inherent implications for women’s rights.

WHAT IS UNIFORM CIVIL CODE (UCC)?

  • A Uniform Civil Code would provide for one law for the entire country, applicable to all religious communities, in their personal matters such as marriage, divorce, inheritance, adoption, etc. The framers of the Constitution recognised the need for uniform personal laws, but placed it in the Directive Principles of State Policy. Article 44 of the Constitution says that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
  • Article 44 is among the Directive Principles of State Policy. Directive Principles are not enforceable by court, but are supposed to inform and guide governance. Currently, Indian personal law is fairly complex, with each religion adhering to its own specific laws. Separate laws govern Hindus including Sikhs, Jains and Buddhist, Muslims, Christians, and followers of other religions.

ARGUMENTS FOR UNIFORM CIVIL CODE

  • “The implementation of a Uniform Civil Code (UCC) will promote the integration of India by establishing a shared platform for diverse communities”.
  • During his address to booth-level workers in the state of Madhya Pradesh, Prime Minister Narendra Modi called for the implementation of the Uniform Civil Code (UCC), saying individuals are attempting to incite others by invoking the concept of a Uniform Civil Code. Expressing his support for the UCC, the PM said the smooth functioning of a family household may be compromised if differential laws or rules are applied to different family members within the same household. “How can a nation effectively operate with such dualistic systems?.” It is imperative to bear in mind that the Indian Constitution also explicitly addresses the notion of equal rights for all citizens.
  • The Union Government holds the belief that personal laws rooted in religion are a challenge to the unity of the nation. However, it asserts that the implementation of a Uniform Civil Code (UCC) will promote the integration of India by establishing a shared platform for diverse communities.
  • The Supreme Court, which is in charge of protecting the Constitution, has expressed unhappiness with the fact that there isn’t a single set of personal laws for everyone in the country. This has happened several times while dealing with cases about personal laws. In different rulings, like the famous Shah Bano case from 1985, the Supreme Court has asked for the UCC to be in place. In both the Sarla Mudgal case (1995) and the Paulo Coutinho vs. Maria Luiza Valentina Pereira case (2019), it said the same thing.
  • One of the remarkable judgments was of Mohammad Ahmed Khan v. Shah Bano Begum, a contentious maintenance case, the Supreme Court issued a judgment favouring the maintenance of an aggrieved non-Muslim divorced woman. The Court while delivering the judgment emphasised the need for UCC. The court said that a universal civil code would support the cause of national integration by doing away with different loyalties to legislation that have contradictory philosophies. It is the State that is responsible for the responsibility of the people of the country to obtain a uniform civil code and, undeniably, has the legislative competence to do so. In the Shah Bano case (1985), Justice Y. V. Chandrachud lamented that Article 44 “has remained a dead letter” because there was “no evidence of any official activity for framing a common civil code for the country”. He wanted a beginning to be made in that direction “if the Constitution is to have any meaning”.
  • In the Kesavananda Bharati case (1973) Chief Justice SM Sikri, even after conceding that “no Court can compel the Government to lay down a uniform civil code”, stated that a UCC “is essentially desirable in the interest of the integrity, and unity of the country”. In January 2023, the Supreme Court upheld the constitutional jurisdiction of states to establish committees to examine the implementation of the Uniform Civil Code. The Uttarakhand government’s move to set up such a committee was deemed permissible by the court. In March 2023, the Supreme Court stated that Parliament should decide issues related to the Uniform Civil Code, emphasising that courts should not direct the legislature to enact laws.
  • According to Kerala Governor Arif Mohammed Khan, the implementation of a Uniform Civil Code (UCC) is a constitutional objective aimed at ensuring equitable justice for all communities. He further asserts that there is a misrepresentation of the UCC, leading to the construction of an inaccurate narrative surrounding its implementation. The objective of implementing a uniform civil code is to ensure equitable dispensation of justice to women from diverse religious backgrounds, encompassing matters such as marital conflicts and property inheritance disputes. According to a statement attributed to the Kerala Governor, he expressed the view that women in our nation have experienced inequity as a result of varying interpretations of personal laws embraced by different communities. Consequently, he emphasised the necessity of enacting a uniform law that encompasses identical provisions for all communities.
  • In her article titled “A Code for Gender Justice,” Zakia Soman argues that it would be ideal for India to establish a codified Muslim family law that aligns with progressive interpretations of religious texts and upholds constitutional principles of justice and equality. However, envisioning such a scenario proves challenging due to the prevailing influence of patriarchal rigidity within the mindset of clerics. The Indian Muslim community is governed by the Shariat Application Act of 1937, which lacks provisions regarding important aspects such as consent, the right to meher, the age of marriage, divorce, guardianship and custody of children, women’s inheritance rights, and polygamy. Despite the presence of affirmative provisions in the Quran, these circumstances persist. The Indian Muslim population is purportedly subject to the governance of the Shariat. However, the written version of this information is not readily available. The Shariat as interpreted by Islamic feminist scholars diverges from the conventional understanding and application of the Shariat in India. Several Muslim countries, including Morocco, Tunisia, and Indonesia, have implemented laws that promote gender equality. In itself, a UCC is a good thing.
  • Zakia Soman, co-founder of the Bharatiya Muslim Mahila Andolan and an advocate for women’s rights, expresses the view that the Shariat Application Act of 1937 is in need of immediate reform. The author additionally asserts that this legislation lacks provisions pertaining to significant elements including the minimum age for marriage, consent, meher (dowry), divorce proceedings, polygamy, child custody and guardianship, as well as women’s entitlement to property. As a result, the practice of child marriages continues to endure. These practises are deemed justified based on the principles of Shari’a law, which stipulates that a girl becomes eligible for marriage upon reaching the age of puberty. The prevalence of polygamy may not be significantly widespread. However, the notion of a husband’s legal right to have four wives is inherently problematic and requires attention in order to maintain the dignity of the wife. Given the current political situation surrounding the UCC, it is imperative to prioritise the pursuit of justice and equality for all Indian citizens, irrespective of their gender and religious affiliations. Undoubtedly, 75 years post-Independence, women and girls in India continue to endure injustice and violence both within the confines of their households and in the wider society. Although the law can serve as a mechanism to tackle specific obstacles, achieving gender justice and equality necessitates a comprehensive social and cultural transformation.
  • Tahir Mahmood, Professor of Law & Ex-Member, Law Commission of India, writes in one of his article “How to make a Uniform Civil Code“, that there is nothing wrong in placing the whole nation under a single law of family rights and succession. This must be done in compliance with the constitutional guarantees for equality before the law and equal protection of laws. The provision of the Special Marriage Act relating to prohibited degrees in marriage should be suitably amended, and its 1976 amendment restricting the applicability of the Indian Succession Act must be set aside. The Act, so amended, should be extended to every part of the country. The day this is done, the constitutional promise of a “uniform civil code for the citizens throughout the territory of India” will stand duly fulfilled.

ARGUMENTS AGAINST UNIFORM CIVIL CODE

  • “The Uniform Civil Code may potentially enforce a code that is influenced by Hindu practices in all communities”
  • According to constitutional experts, a primary contention against the implementation of the Uniform Civil Code is its perceived infringement upon the constitutional right to freely exercise one’s chosen religion. This right enables religious communities to adhere to their respective personal laws. An illustration of this can be found in Article 25, which grants each religious collective the entitlement to autonomously administer its internal matters, while Article 29 safeguards their prerogative to preserve their unique cultural heritage. Furthermore, a contention is made regarding the inconsistency of applying the principle of ‘one nation, one law’ to personal laws of communities, given that codified civil laws and criminal laws, such as the Code of Criminal Procedure (CrPC) and the Indian Penal Code (IPC, do not adhere to this principle. The variation in the law of anticipatory bail is evident across different states.
  • According to experts, there is a contention that the Uniform Civil Code may potentially enforce a code that is influenced by Hindu practices in all communities. An instance of a Uniform Civil Code could encompass clauses pertaining to familial conflicts regarding the inheritance of property, which may align with Hindu traditions and impose legal obligations on other communities to adhere to these provisions.
  • According to the 21st Law Commission, led by former Supreme Court judge Balbir Singh Chauhan, the evaluation of the “Reform of Family Law” suggests that the development of a Uniform Civil Code is presently deemed unnecessary and not recommended. The Commission expressed the viewpoint that the presence of disparities does not necessarily indicate discriminatory practices, but rather serves as an indication of a strong and vibrant democratic system. It has been observed that a growing number of nations are shifting their focus towards acknowledging and accommodating differences instead of relying on legal frameworks that promote uniformity among culturally diverse populations. This shift is driven by the recognition that such uniform provisions tend to be unjust towards marginalised and vulnerable groups.
  • The 21st Law Commission emphasised the importance of reforming family laws across various religions to ensure gender equity, rather than solely focusing on the enactment of a Uniform Civil Code (UCC). The discussion focused on the consistency of rights rather than legislation. The consultation paper released by the Commission placed significant emphasis on the importance of ensuring that the celebration of diversity does not lead to any form of disadvantage for particular groups. It specifically highlighted the necessity of guaranteeing women the freedom to practise their faith without compromising their right to equality. The paper subsequently proposed a set of reforms concerning the personal laws of various religions, as well as the secular laws that result in the marginalisation of women and children. Therefore, the recommendations pertaining to the economic rights of women were deemed the most consequential among those put forth by the 21st Law Commission. The Law Commission expressed its support for achieving “equality within communities” between men and women, as opposed to pursuing “equality between” communities, in its ‘Consultation Paper on Family Law Reforms’.
  • According to Faizan Mustafa, an expert in the fields of constitutional law, criminal law, human rights, and personal laws in India, it would be incorrect to make the assumption that India possesses distinct personal laws solely due to its religious diversity. Indeed, it is evident that legal regulations exhibit variations across different states. According to the Constitution, the authority to enact legislation pertaining to personal laws is vested in both the Parliament and state Assemblies. The inclusion of personal law in the Concurrent List (entry No. 5) appears to be motivated by the desire to maintain legal diversity. If the primary concern had been the establishment of uniformity in laws, personal laws would have been incorporated into the Union List, granting exclusive jurisdiction to Parliament for enacting laws pertaining to these matters.
  • Faizan Mustafa emphasised the importance of considering the 21st Law Commission’s recommendation in light of India’s diverse and multicultural society. He argued that the proposed Uniform Civil Code (UCC) should reflect India’s “mosaic model” of multiculturalism. The inherent reasoning is consistently evident that the process of assimilating diverse identities should not be misconstrued as an illusion, as it has consistently been a distinctive characteristic of the American approach to multiculturalism. Ultimately, the significance of unity surpasses that of uniformity. The British colonial administration sought to promote homogeneity among Hindus and Muslims by significantly diminishing the existing heterogeneity within these religious communities.
  • In the year 2016, the Rashtriya Adivasi Ekta Parishad, an organisation purporting to advocate the interests of the Adivasi community and representing a population of approximately 110 million tribal individuals, initiated legal proceedings in the Supreme Court with the objective of safeguarding their cultural traditions and religious practises. This included the preservation of their rights to engage in polygamy and polyandry, matters that would potentially fall under the purview of a Uniform Civil Code. According to the Parishad, the Adivasis possess distinct personal laws and are not classified as Hindus due to their practice of nature worship instead of idol worship and their observance of burial rituals for the deceased. It has been argued that the marriage and death rituals observed by tribal communities differ from Hindu customs, and there is concern that these practices may also face prohibition.

UNIFORM CIVIL CODE- IT SHOULD REMAIN VOLUNTARY

  • “It is imperative to ensure that certain groups or marginalised segments of society are not subjected to disadvantageous treatment during this endeavour”
  • During the formulation of the Constitution, Dr B R Ambedkar expressed the view that a Uniform Civil Code was a desirable objective. However, he recommended that, at that time, its implementation should be voluntary. Consequently, Article 35 was incorporated as part of the Directive Principles of State Policy in Part IV of the Indian Constitution, specifically as Article 44. The inclusion of the Uniform Civil Code (UCC) in the Constitution was predicated upon the condition that it would be implemented at a time when the nation was deemed prepared to embrace it, and when there was sufficient social acceptance for its adoption. During his address to the Constituent Assembly, Ambedkar expressed that there was no need for concern regarding the potential misuse of state power. He emphasised that the state would not hastily employ its authority in a manner that could be deemed objectionable by various religious communities, including Muslims, Christians, or any other community. In my opinion, the implementation of such a policy by the government would be highly irrational.
  • In her column titled “Common code conversations,” Bina Agarwal, a professor of Development Economics at the University of Manchester, raises the question of how a Code would be defined. For instance, what is the specific aspect of uniformity being referred to? The current legal framework encompasses various aspects of personal matters, such as marriage, inheritance, adoption, and guardianship, which are subject to variation based on religious and regional factors. Will the consolidation of these dimensions into a single Code be pursued, or will each dimension continue to be addressed separately, as is the case with existing laws? In both scenarios, which principles will govern the attainment of uniformity? Will the process entail selectively selecting characteristics from disparate personal laws, opting for a singular set of pre-existing personal laws, or establishing an entirely novel set of laws? A crucial consideration is whether the UCC will exhibit a secular nature and ensure gender equality in all aspects.
  • Prominent scholars in the field of multiculturalism, such as Rochana Bajpai, argue that the Indian Constitution presents two primary approaches in relation to the incorporation of diversity: integrationist and restricted multiculturalism. The affirmative action policies predominantly align with the perspective of the first approach. However, Bajpai views state assistance to minority cultures as an illegitimate concession, often referred to as “appeasement of minorities.”
  • The 21st Law Commission exhibited a strong inclination towards prioritising gender equality within communities, as opposed to pursuing equality between communities. In accordance with paragraph 1.15 of its comprehensive 182-page report titled “Consultation Paper on Reform of Family Law,” the commission acknowledged that although the diversity of Indian culture is worthy of appreciation, it is imperative to ensure that certain groups or marginalised segments of society are not subjected to disadvantageous treatment during this endeavour. The resolution of this conflict does not entail the complete elimination of all differences. The Commission has thus addressed legislation that exhibits discriminatory characteristics, rather than advocating for the implementation of a uniform civil code, which is deemed unnecessary and undesirable at this particular juncture. Many nations are currently transitioning towards acknowledging and accepting diversity. It is important to note that the mere presence of diversity does not necessarily indicate discrimination, but rather signifies a thriving democratic society.