‘Equality’ and ‘secularism’ are considered the two cornerstones of the state of India and its constitution. Both the concepts become even more critical for a country like India that is home to people of different faiths, beliefs and backgrounds. Principles outlined in the constitution uphold all faiths by separating the sphere of religion from the sphere of the state or, in other words, the Articles 25-28 of the Indian Constitution provide every citizen a fundamental right to a free conscience and to practice and propagate their religion. The Uniform Civil Code (UCC) in this regard intends to replace the fragmented personal laws with a single law, applicable to all citizens of India. This proposed bill however has met with both applaud and criticism. This essay outlines both sides of the argument to understand the scope of UCC.
The idea of UCC stems from Article 44 of the Indian Constitution, in which one of the Directive Principles provides that “State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India”. The Directive Principles however are enforceable only by states in India, if they see fit. This means that UCC is one of the goals that India must strive to attain in the future but it isn’t a fundamental right or a guarantee. Therefore, the current Government of India seeks to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen.
These personal laws cover within their ambit subjects like marriage, divorce, inheritance, etc. that come under the Concurrent list. The need for UCC primarily arises due to the fact that while on one hand, Hindu personal laws have largely been codified and secularised by the Parliament in 1956, on the other hand, personal laws governing those in many other religious communities are still largely unmodified and remain traditional. These laws predominantly are discriminative against women of these communities, and in many cases deprive them from their right to equality. Furthermore, to protect distinct regional identities, the Constitution makes certain exceptions for the states of Assam, Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law.
Personal laws are a remnant of the British colonial rule in India. Fearing opposition, the British in India followed a policy that allowed every religion in India to follows its own rules for issues related to marriage, inheritance, divorce, and other domestic problems. Following independence in 1947, a series of Bills were passed to codify Hindu laws in the form of Hindu Marriage Act 1955, The Hindu Succession Act 1956, The Hindu Minority and Guardianship Act 1956 and the Hindu Adoption and Maintenance Act 1956 - collectively known as Hindu Code Bill which allows right to divorce and inheritance to women, has made caste irrelevant to marriage and abolished bigamy and polygamy.
Many cases since then have infact pointed to the need for a UCC. For instance, in 1985 when Shah Bano moved to Supreme Court seeking for herself a regular maintenance after her husband divorced her, 40 years after their marriage. The Supreme Court in its landmark judgement upheld Bano’s demand and further ruled for an urgent need of universal codes governing such issues. The judgement was met with severe criticism from the Muslim groups that felt that their identity was at stake and their personal laws under an attack.
The debate around this issue has more or less been focused around the Muslim personal laws which are based on the sharia and permit unilateral divorce and polygamy. Even though UCC reinforces equality, it however is seen as a clash with Article 25 that guarantees the right to freedom of religion. Minority communities argue that separate personal laws are one of the ways in which they have exercised their right to practise their own religion, and any challenge to that will erode this right.
However, it is important to note that UCC, in theory, aims to provide and retain the equal status of all citizens of India. This is especially true when it comes to laws related to natural guardianship of a child, right to property for women, rights of a widow, right to maintenance after divorce, end to polygamy, etc. All of these will ensure that gender-equality and consistency is established. Moreover, there is a Criminal Code that is applicable to all people irrespective of religion, caste, tribe and domicile in the country but there is no similar code related to divorce and succession which are governed by Personal laws.
Establishing UCC was a part of the BJP manifesto in 2019. After the abolition of triple talaq and the abrogation of Article 370, many believe that UCC is the next reform in line. The GOI has however maintained that it is committed to honour the Constitutional mandate and would introduce UCC only after wide scale consultations. There have been a number of petitions regarding the urgent need for the UCC in order to promote national integration as well as gender justice, equality & dignity of women.
The need of the hour is to understand that the politicisation of an important cause such as the UCC serves no good to anyone. Instead, it is important that all concerned parties and opinions come together to formulate a constructive plan to promote and devise UCC. Changing times and notions of what ‘personal’ really means has further made UCC a relevant subject. Its adoption will be a step towards progressive legislation.
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