What is Uniform Civil Code?
The Uniform Civil Code (UCC) calls for the formulation of a single law in India, which would be applicable to all religious communities in matters such as marriage, inheritance, divorce, adoption, etc.
It is intended to replace the system of fragmented personal laws, which currently govern interpersonal relationships and related matters within different religious communities.
Article 44 of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
Article 44 is one of the Directive Principles of State Policy. The Directive Principles are defined in Article 37, which proclaims:
“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”
Which effectively means that the vision of a Uniform Civil Code is enshrined in the Indian Constitution as a goal towards which the nation should strive, but it isn’t a fundamental right or a Constitutional guarantee. One can’t approach the court to demand a UCC.
But that doesn’t mean courts can’t opine on the matter.
In fact, the demand for a UCC came to the fore in the judgment pronounced in the Shah Bano case in 1985, more than three decades after the Constitution was drafted.
Shah Bano moved Supreme Court seeking maintenance after her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance. The SC bench, in a verdict in favour of Bano, observed:
“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.”
In the 1995 Sarla Mudgal Case, Justice Kuldip Singh reiterated the need for Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing ideological contradictions.
The same suggestion reflects in the verdicts of other landmark cases such as Jordan Diengdeh vs SS Chopra and John Vallamattom vs Union of India.
The Two Sides
A Uniform Civil Code would, in theory, provide equal status to all citizens irrespective of their communities.
Personal laws of different religions are widely divergent and there is no consistency in how issues like marriage, succession and adoption are treated for people belonging to different communities, which clashes with Article 14 of the Constitution, which guarantees equality before the law.
Reforms to personal laws have also been inconsistent. For example, multiple amendments have been brought to Hindu personal laws, while Muslim law has seen fewer changes.
Personal laws, because they derive from tradition and custom, also tend to give undue advantage to men. As the Law Commission observes in its 2018 consultation paper, “Various aspects of prevailing personal laws disprivilege women.”
This becomes evident in examples such as Muslim men being allowed to marry multiple wives but women being forbidden from having multiple husbands.
In another example, even after the 2005 amendment to the Hindu Succession Act, women are still considered part of their husband’s family after marriage. So, in case a Hindu widow dies without any heirs or will, her property will automatically go to her husband’s family.
Men (fathers) are also treated as ‘natural guardians’ and are given preference under the Hindu Minority and Guardianship Act.
A UCC could lead to consistency and gender equality when it comes to personal laws and usher in some much-needed reforms.
Even though it reinforces equality before law, the idea of a UCC clashes with the right to freedom of religion (Article 25 of the Constitution).
Separate personal laws are one of the ways in which people have exercised their right to practise their own religion, which has been particularly important for minorities. The UCC could become a tool to erode this right, suppress minorities and homogenise culture.
Attempts at a UCC will undoubtedly be met with widespread protest.
The Law Commission’s report on reform of family law (2018) comments that a uniform civil code “is neither necessary nor desirable at this stage.”
According to the Commission, the best way forward may be to preserve the diversity of personal laws but at the same time ensure that they do not contradict fundamental rights.
“It is urged that the legislature should first consider guaranteeing equality within communities between men and women, rather than equality between communities. This way, some of the differences within personal laws which are meaningful can be preserved and inequality can be weeded out to the greatest extent possible without absolute uniformity,” it notes.
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