Uniform Civil Code: Recent Developments And Its Relevance In The Current Scenario
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India is a nation of great cultural diversity, home to many religions in the world. In a nation with such great diversity where people follow more than five religions and have 22 recognized languages and every religion has its separate customs to follow. Uniform Civil Code aims to succeed various personal laws which govern civil cases of numerable communities which includes the Hindu Personal laws and Muslim Personal laws.
Article 44 of part IV of the Constitution of India directs the State to ensure its citizen a uniform civil code throughout the country. Personal laws are the result of age-old traditions which sometimes follow discriminatory practices towards different sections of the society. From time-to-time courts have directed the government to lay down a uniform civil code for the country. This article talks about the history and recent debates on Uniform Civil Code and what will be its implication.
What Is A Uniform Civil Code: An Introduction
In India, laws are of two types: public and private. Public law deals with matters relating to the rights, duties, and responsibilities between the state and individuals. On the other hand, private law deals with the relationship between individuals in a society. Examples of public law can be the constitution and Indian Penal Code while examples of private laws can be contract act or various personal laws. The Uniform Civil Code forms part of private law since it deals with matters between individuals.
India is home to many religions following different customs. The richness in diversity can be seen by the fact that there are 22 recognized languages and more than 500 recognized tribes each following their own customs. A Uniform civil code means that all citizens irrespective of their religion should be treated equally in matters pertaining to civil laws. Civil law covers areas like marriage, divorce, adoption, inheritance, and succession of property.
Under Part IV of the Constitution of India, article 44 is mentioned in the Directive Principle of State Policy, which says, 'The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.'[1] Nowadays, civil matters in India are governed by various personal laws like Hindu Marriage Act which includes Sikhs, Jains, and Buddhists, and Shariat law which governs Muslim throughout the country.
The main objective behind the Uniform Civil Code is to have a single civil law for the whole country, and people of every religion should also come under this code. There are many contradictory arguments regarding the implementation of the Uniform Civil Code. Some say it will remove the complexity of the law and will bring communal harmony. While others say that it will snatch the fundamental right of freedom of religion which also includes the right to freely practice their religion.
Nevertheless, there have been various Public Interest Litigations (PILs) issued throughout the history of India like Ashwini Kumar Upadhyay V. Union of India[2] seeking the implementation of this directive principle providing a Uniform Civil Code. This article aims to analyze the effects of the implementation of UCC in the current socio-political climate and whether the general population is ready for its application.
Historical Background of Uniform Civil Code
The need for uniform laws was first felt by the British Government during the colonial period. After getting the Diwani rights of Bengal, Bihar, and Orissa from Mughal Emperor Shah Alam II, Britishers felt the need of reforming the existing laws that were prevailing in Indian society. The first law commission was appointed in India in 1834 under the chairmanship of Lord T.B. McAulay consisting of 4 other members.
The commission was given the task namely:
Codification of Penal law
The law applicable to non-Hindus and non-Muslims in respect of their various rights.
Codification of civil and criminal procedural law etc.[3]
The commission was successful in drafting the penal code but with regards to civil matters of the subject, the commission submitted the lex-loci report and decided that the law of England will be applicable to those who have no law of their own, and thus the law of England was applicable to all other except Hindus and Muslims. The second law commission which was formed in 1853 was also of the same viewpoint. It expressed that no steps should be taken to code the personal laws of Hindus and Muslims.
The British were of the opinion that interference in the matter of family law which is mostly connected to the religion and customs of Hindus and Muslims will lead to protests and disaffection against the British. The British became more convinced of this after the Revolt of 1857 as, before the revolt, the Governors-General of East India Company introduced many reformatories laws.
Lord William Bentick in 1829 with combined efforts of Raja Ram Mohan Roy introduced the Sati Regulation which abolished the practice of Sati throughout the company's jurisdiction. Lord Canning passed the Hindu Widow Remarriage Act in 1856. But after the revolt of 1857, in Queen's proclamation of 1859, the Crown adopted the policy of religious non-intervention as they believed that the uprising was triggered by the conservative Hindus and Muslims as a reaction against many new laws which challenged their age-old practices.
The reforms brought by the British were mostly for Hindus and not for Muslims. This was because in Hindus, many new reformists and progressive leaders like Raja Ram Mohan Roy and Ishwar Chand Vidyasagar were there who were continuously requesting the Government to bring a law and abolish many ill practices. While in the Muslim community there was no progressive leader to lead the reform movement in the community.
During the last years of their rule, the British initiated the framing of a uniform code for Hindus. They set up a committee in 1941 under the chairmanship of B. N. Rau, who was a civil servant. The committee toured India, gathering a large number of people belonging to Hindu community who had similar opinions towards the change they proposed. By 1946, they had prepared a draft of a personal law code which was to be applied on all Hindus.[4] A new committee was formed by the Constituent Assembly in 1948 to revise the draft of a new Hindu code, chaired by B.R. Ambedkar. Regardless of its name 'The Hindu Code Bill was to apply to Sikhs, Jains, and Buddhists.
During the drafting of the constitution, Nehru and Ambedkar wanted a uniform civil code throughout India but they faced resistance from religious fundamentalists. However, they were successful in including it in the Directive Principle of State Policy (DPSP), Article 44. When this article was discussed in the Constituent Assembly there was a lot of agitation and discussion in the assembly. Many members argued that India is not ready for a Uniform Civil Code as the partition has changed the demography of the country. The recent horrors of the partition have caused great insecurity among the minority community, who are not ready for it.
While speaking in Constituent Assembly one Muslim member pointed out that Muslim laws for marriage, succession, inheritance, and divorce are completely dependent on their religion. Ambedkar knew that while there were enough strong and influential progressive Hindu leaders like Nehru, the progressive delegation in the Muslim community was missing.
Progress on Uniform Civil Code after independence
After India's independence from the British Raj, there were a lot of protests and rallies held against the Hindu code bill mainly by Rashtriya Swayamsevak Sangh (RSS) and Ram Rajya Parishad. In the provisional Parliament, there was a lot of opposition from the orthodox members.
But when the general elections were held in 1952, Indian National Congress came victorious with a huge margin, and Nehru keeping in mind the protest he faced for the Hindu code bill, passed the bill in several installments: The Hindu Marriage Act, 1955, Hindu Succession, Minority, Guardianship, Adoption, and Maintenance Acts of 1956.
Today, the Supreme Court of India has also expressed, on various occasions, that steps should be initiated to enact the uniform civil code as directed by Article 44 but the Court seems to have an ambiguous opinion in this matter. In Pannalal Bansilal V. State of Andhra Pradesh[5], the court held that "a uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation." While in Maharshi Avadhesh V Union of India[6] the Supreme Court dismissed the petition by the petitioner to introduce a uniform civil code on the ground that matters relating to drafting a new law are matters of the legislature.
The Supreme court seems to have a divided opinion on the ground that in Sarla Mudgal V Union of India[7] the court in its judgment held it invalid, the practice of converting to another religion to have a second marriage without dissolving the second marriage. The court directed the Government of India to file an affidavit regarding the steps taken by the Government toward securing a Uniform Civil Code under Article 44.
In another case of John Vallamattom V Union of India[8], the court held that articles 25 and 26 protect only those practices which are integral parts of a religion. Then Chief Justice V.N. Khare emphasized how the Uniform Civil Code could have avoided this situation. The court in Mohd. Ahmed Khan V Shah Bano Begum[9] observed that 'Article 44 of our Constitution has remained a dead letter.
There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which is entrusted with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A beginning must be made if the Constitution is to have any meaning.'
Recent Developments
The recent debate on Uniform Civil Code began when Bhartiya Janta Party (BJP) in its 2014 General election manifesto promised to bring a Uniform Civil Code in the country, if it is elected to power. Then again in the 2019 General election, the manifesto contained promises, for bringing a Uniform Civil Code. Several Public Interest litigations were also filed in the Supreme Court demanding the Union government to take necessary steps in bringing a civil code for the whole country.
In 2020, BJP leader and advocate Ashwani Kumar Upadhyay filed a PIL in the Supreme court 'seeking gender-neutral and religion-neutral uniform grounds of succession and inheritance for all Indian citizens.' The PIL refers to a judgment of the Supreme Court in Jose Paulo Coutinho V. Maria Luiza Valentina Pereira where the court refers to Goa as a 'shining example' as it has the Uniform Civil Code applicable to all, irrespective of religion. For example, a Muslim man whose marriage is registered in the state cannot practice polygamy.
The history of the Uniform Civil Code in Goa dates back to 1867 when Portugal adopted the Portugal Civil Code and in 1869 it extended it to Goa. After Goa was liberated from Portuguese rule, it continued with the same civil code.
After BJP came into power after the 2014 general election, the Ministry of Law and Justice made a reference to the 21st Law Commission of India to look into matters in relation to the Uniform Civil Code in 2016. The Law Commission submitted its report in 2018 after conducting long research and interacting with different stakeholders. The report says that a 'uniform civil code is neither necessary nor desirable at this stage.'[10]
The most recent case pertaining to the Uniform Civil code is Ashwani Kumar Upadhyay V Union of India. In this case, the Union Government asked the Supreme Court to dismiss all the PILs seeking Uniform Civil Code. The government argued that Courts cannot direct the legislature to enact a bill or law.
Parliament has the sovereign power to enact the laws. However, the government also says that different people following different laws is an "affront to the nation's unity." It further says that when the chairman and members of the 22nd Law Commission will be appointed, then the government will place this matter before the Commission for its consideration.[11]
Recently, a private member bill to implement the Uniform Civil Code was introduced in Rajya Sabha by BJP MP Kirodi Lal Meena. The bill got 63 votes in favor and 23 votes against.[12] It seeks to provide for the constitution of the "National Inspection and Investigation Committee" for the preparation of the Uniform Civil Code and its implementation.
Relevancy and Conclusion
India is a vast country with a rich cultural heritage. It is so culturally diverse that besides major religions, every religion has denominations in itself. Their way of practice and worship are so different that they don't look the same. For instance, in the southern part of India, Consanguineous marriage is common among Dravidian Hindus while it is not practiced among the Hindus of northern India. Therefore, making a common civil law for a country like India is a tough task.
The opinion of Ambedkar towards a uniform civil code was that it is desirable but for the initial moment it should remain voluntary. In fact, till 1937 Muslims apart from North-West Frontier Province, in various parts of India Such as the United Provinces, and Bombay, the Muslims to a large extent were governed by Hindu law in the matter of succession.
Nehru, when he was asked why his government had not brought a common civil code though he was the biggest supporter of the common civil code, he said that the Indian society is not ready for the common civil code. The law commission conducted a survey in 2016 and over 75000 people took part in it. The people suggested the way in which reforms should be executed[13]. This survey is indicative of the view that people now desire the reform of the existing laws. The suggestions of the Law Commission in this regard are very practical.
The commission suggested that the best way at the present scenario is to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict the fundamental rights guaranteed under the constitution. The personal laws relating to matters of the family must first be codified and inequalities that are in the personal laws should be removed.
There's no doubt that if a Uniform Civil Code is established private religious rights of all people are bound to be infringed. Article 25 provides Freedom of conscience and free profession, practice, and propagation of religion. A Uniform Civil Code will violate the right to free profession and practice of religious communities. In a democratic country, the majority view shall prevail in most situations and if a sound reason is provided behind those view, then the popular decision should prevail.
There is plenty of evidence as to why a Uniform Civil Code should not be applied. From infringement of religious rights to violation of article 14 which provides treatment of different or unequal people differently which in our situation are the different religious customs and traditions. Of course, there is more to this picture. Treatment of people under different laws leads to violation of public rights since for a same situation, punishment might be different or no punishment at all. Polygamy is a crime under Hindu law but in Shariat law a man can have multiple wives.
Thus, a same situation will lead to conflicting effects. Indian public might not be ready for enactment of the code but nevertheless its application is necessary in a civil democratic secular country where a nation should not identify with any religion. Thus, a uniform law should be applied on every citizen in every situation, be it a criminal, civil or religious problem.
The framers of our constitution had a modern future in mind for our country. Yes, they wanted to apply this Uniform Civil Code at the time of independence, Alas that couldn't be possible due to the communal tension at that point of time. The situation might not be perfect but is much better now. All that is left is the initiation by the lawmakers of our country. The public lash-out is a thing to be handled later.
End-Notes:
Constitution of India, 1950
Writ Petition(s)(Civil) No(s).699/2016
http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT%20-%204.pdf
Ramchandra Guha, India After Gandhi (10th edition, Picador India, 2017) 225
1996 AIR 1023
1994 SCC Supl. (1) 713
1995 AIR 1531
Writ Petition (Civil) 242 of 1997
AIR 1985 SC 945
Law Commission of India, Consultation Paper on Reform of Family Law, 31 August 2018
https://www.deccanherald.com/national/north-and-central/centre-asks-supreme-court-to-dismiss-pils-on-uniform-civil-code-1154696.html
https://www.livelaw.in/news-updates/private-bill-to-implement-uniform-civil-code-introduced-in-rajya-sabha-216307?infinitescroll=1
Law Commission of India, Consultation Paper on Reform of Family Law, 31 August 2018
Law Article in India
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