A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. The need for such a code takes in to account the constitutional mandate of securing justice and equality for all citizens. A uniform criminal code is applicable to all citizens irrespective of religion, caste, gender and domicile in our country. But a similar code pertaining to marriage, divorce, succession and other family matters has not been brought in to effect. The personal laws vary widely in their sources, philosophy and application. Therefore, there is an inherent difficulty and resistance in bringing people together and unifying them when different religions and personal laws govern them.
The debate on the Uniform Civil Code has always been in the air, since the drafting of the constitution, but it has recently gained momentum post triple talaq ordinance in 2018.
Constitution and Uniform Civil Code
During the post-colonial period, the framers of the Indian Constitution envisaged a uniform civil code governing the personal laws in the country and thereby incorporated Article 44 in Part IV of the Indian Constitution in furtherance of the Directive Principles of State Policy. Thereby, making it incumbent on the state to secure for the citizens a Uniform Civil Code thought-out the territory of India. The directive principle embodied under Article 44 of the Constitution is aimed at gradually achieving, rather than at once, far reaching equality for all citizens.
The Preamble to the Constitution resolves to constitute a ‘Secular Democratic Republic.’ Which in effect means that there shall be no state religion and the state shall not discriminate on the basis of religion. The personal laws of each religion, which is comprised of separate ingredients and founded on distinct ideologies, the uniform civil code must strike a balance between the protection of fundamental rights and religious principles of different communities. Marriage, divorce, succession etc. can be matters of a secular nature, which the law can regulate. Therefore, a uniform codified law, which will subsume all religions in relation to the personal laws governing different communities, should be necessitated.
Constitutional Provisions: While, Article 15 of the Constitution guarantee to every citizen that consists of ‘no discrimination on any ground only of religion, race, caste, sex, place of birth or any of these’, Article 15 (3) ensures that women and children can have special provisions made by the State. But at the same time Article 44 promotes Uniform Civil Code whereas Article 14-19 guarantees equal rights. Constitution of India incorporates certain policies also which are to be followed by the state. [1] In India, Uniform Criminal code exists and so Article 44 expects from the State to secure Uniform Civil Code for all citizens of India like the Criminal Law is equally applicable to all citizens irrespective of their religious beliefs as there is no uniformity in matters relating to marriage, divorce, maintenance, guardianship, etc., among Hindus, Muslims, Christians, etc.
Supreme Court of India on Uniform Civil Code: The Supreme court ruled in her favour in 1985 under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. It further recommended that a uniform civil code be set up.
In October 2015, Supreme Court of India asserted the need of a Uniform Civil Code and said that, “This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court”.[2] On 30 November 2016, British Indian intellectual Tufail Ahmad unveiled a 12-point document draft of it, citing no effort by the government since 1950.The Law Commission of India on 31st August, 2018, said a Uniform Civil Code (UCC) is “neither necessary nor desirable at this stage”. In a 185-page consultation paper, the commission said secularism cannot contradict plurality prevalent in the country.[3] [4]
Need for Uniform Civil Code: The proponents of a Uniform Civil Code have been campaigning for it even before the Independence of India. India, a country depicting unity in diversity, a real rainbow with all the colours of humanity blending in beautifully. The original politicians, as one may say, were foresighted and knew Uniform Civil Code will be the backbone of holding the country’s threads of diversity.
Arguments in favour of Uniform Civil Code: Here are a few points as to why the Uniform Civil Code is not only a must but also the need of the hour:
- It will promote India in becoming a true secular state: India, was devised as to be a secular state. There is no ruling religion for India and therefore it would be a must to follow the secular laws of the land above the religious laws. What we have right now in India is selective secularism, we are secular for some bits and we aren’t for most.
- It will bring equality: For instance, we can see that the Muslims enjoy celebrating their temptation in the form of polygamy but the people of other religions will be prosecuted for the same. Is this the definition of equality? I guess no, and therefore, Uniform Civil Code is necessary.
- Gender equality: Our society is a patriarchal society with an out of proportion misogyny. Thus, the women are subjected to inhumane treatment and Uniform Civil Code is the key to open the vast doors of opportunities and exposure and respect for women in India.
- Personal laws are a mockery of the Indian Constitution: Personal laws are basically loop holes for those in power to exploit the common people and continue to stay in power without spending a single minute for the welfare of the nation.
- It will reduce vote bank politics: With all the communities and castes and religions falling under the same laws, it will be tough for the politicians to play the dirty game of vote bank and it will leave the politicians with nothing but to offer their people development in order to be able to nag votes.
Who are against it? To understand the hurdles against the implementation of Uniform Civil Code, we need to understand the mindset of those who are being the hurdle. It can be divided into two categories: political and religious. Coming to wider category, the religious category, we can see that the only religion against the UCC is Islam. On the contrary we can also see that some of the laws that were passed to bring about religious stability and gender equality were all for the Hindu Community, for example, The Indian Marriage Act, 1864, Hindu Widow Remarriage Act, 1856, Hindu Inheritance (Removal of disabilities) Act, 1928, etc.
The Muslim Community: About the questionnaire taken out by the law commission, there has been clear and evident rejection by the Muslim community as the All India Muslim Personal Law Board completely disregarded the Law Commission’s questionnaire on the UCC and decided to boycott it.
All India Muslim Personal Law Board’s General Secretary Mr. Maulana Wali Rehmani said that, “Uniform Civil Code is divisive and will lead to social unrest, and that It is against the spirit of the Constitution, which safeguards the right of citizens to practice their culture and religion,”.
The minorities view reflects the viewpoint that if need comes the Union Government can take out a public referendum on the issue of triple talaq and not just hold what the majority views are on the issue. The view is that it’s a part of Muslim personal law and thus only Muslims shall be allowed to decide on the issue and not persons of every religion and community.
It can be concluded that this dissent is because there are certain Islamic practices which will have to be abandoned by the Muslims if the UCC is implemented.
- ‘Talaq-e-bidat’ – In this kind of divorce a muslim man can easily divorce his wife by saying the word ‘talaq’ more than one time in a single ‘tuhr’(a time period between two menstrual cycles) or in a period of tuhr after consummation.
- Triple Talaq
- ‘Nikah halala’ is an example of another religious practice ostensibly based on the Quran. Shah Bano’s plea in the landmark judgment of Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844) describes it as: “Further, once a woman has been divorced, her husband is not permitted take her back as his wife even if he had pronounced talaq under influence of any intoxicant, unless the woman undergoes nikah halala which involves her marriage with another man who subsequently divorces her so that her previous husband can re-marry her.”
Arguments against Uniform Civil Code:
- A move against Secularism: In India, a country with diverse languages and traditions, expecting people of diverse culture and traditions to act on the same laws, based on a uniform system is somewhat preposterous.
The argument is based on the fact that India takes pride in its integrity within diversity. For maintaining diversity, we need to respect every minority communities’ personal choices and laws. That is what has led this nation to live in peace for such a long duration of time. The question that we need to ask ourselves is that whether the violation of personal laws is acceptable or not. We should also be practical while going about this issue. The impracticality of this issue lies in the fact that there are 14.2% Muslims in India and any move towards implementing UCC has received heavy opposition and criticism from their side. So, it is an injustice to them by imposing majority Hindu views on them. A secular India is what the founding fathers promised when they formulated the Constitution and that is what the minority is demanding for. The government must respect the emotions of the minority population and thus decide on whether to infringe upon the personal law or not.
In the landmark judgment of S. R. Bommai v Union of India the honourable Supreme Court explained the concept of Secularism as, “The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of the Indian political system.”
- Infringement of personal religious laws: The Muslim community vehemently opposes the move by the government and they all say that UCC would violate their personal laws gravely and would thus result in irreversible damage to their religion and the laws therein. A strong argument which goes against the implementation of the Uniform Civil Code is, the very idea of assimilating all the personal laws into a uniform code will infringe the constituents of personal laws of most of the minority religion.
Shah Bano Judgement and Uniform Civil Code: The Shah Bano case of 1985 was a test for the entire nation whether it adheres to the principles it stands for or it will succumb to the political correctness and minority appeasement propaganda. In this case, Shah Bano, wife of Mohammad Ahmad Khan filed a petition in the local court of Indore against her husband under section 125 of CrPC, asking him for a maintenance amount for herself and her children. The husband had given her an irrevocable divorce to her which was his prerogative under Islamic Law and hence took up the defence that since Shah Bano has ceased to be her wife, he was under no obligation to provide maintenance except prescribed under the Islamic Law which amounted to ₹5400. This issue was finally taken to the Supreme Court which decided in the favour of Shah Bano and ordered the usage of the secular CrPC above the religion.
The Shah Bano case was a major landmark case because it brought into light many untouched layers of the Islamic Law and gender inequality. Above all of the major topics it involved the important one, in this context, is that it was a solid step towards the implementation of the UCC. However, in 1986 the then government of Rajiv Gandhi passed an act titled The Muslim Women (Protection of Rights on Divorce) Act that nullified the Supreme Court’s Judgement and allowed the maintenance of the divorced woman only during the period of iddat or till 90 days after divorce, in conformation with the Islamic Law. In other words, the government not only mocked the Law of the Land but also issued a completely hypocritical ordinance with a name favouring the women of the community but with words which are totally demeaning and reducing women back to their substantial value. It showed that political populism dominates the rational principles of equality, human rights and social justice. It showed that minority appeasement is so much deeply engraved in the blood of the politicians that they do not have the guts to enforce it. They would prefer for the women to live with inhumane social status rather than standing for the foundation of the country simply because it would be political suicide for any political party or political leader to do so. The Act passed by the Rajiv Gandhi government left a bitter legacy which prevents further reforms on UCC because of the fear of political backlash and may be, a civil war.
The case brought into focus the issues of conflict between secularism, Uniform Civil Code and freedom of religion. Secularism was used as a tool to mobilise support against the judgement. However, all the examples cited proved otherwise but lack of knowledge and education among the Muslim community resulted in the backlash. When the Preamble of Indian Constitution declares India a ‘secular’ state it means that state is only concerned with the relation of man with fellow man and the state, not of man with God. A man is free to choose his God and practice the principles of his religion. And since, marriage, divorce, etc falls in the category of relation between a man and a fellow man and on a larger scale for the welfare of the State, it should be governed by the Law of the Land and not Personal Laws.
The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said, “Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fiber. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity.”
Uniform Civil Code prior to the Partition: The head of the Drafting Committee of the Constitution, Dr. B. R. Ambedkar was a man of enormous foresightedness and it is evident by the fact that he advocated Uniform Civil Code for as long as he was alive and also resigned from the cabinet when parliament stalled his draft of the Hindu Code Bill, which sought to enshrine gender equality in the laws of inheritance and marriages. Till the 19th century, religion had pretty much ruled the life of Indians. Following demands from Hindu social reformers, though, the British had gradually outlawed certain practices and, in 1946, readied a draft for reform of Hindu laws. Yet the majority of faith-based practices were left untouched, and in the case of Muslim personal law, the colonial power, always eager to divide and rule, had not intervened at all.
There were two opinions on this sensitive subject among Indian leaders at the time. One was that personal laws had to go at once in order to create a casteless, classless and united society on the basis of equality, direct elections and universal suffrage. The other was the view of Nehru and some other Congress leaders and, therefore, highly influential. Nehru and others felt that the Muslims who were facing the brunt of communal violence in the Hindu majority areas had genuine fears and the Constitution would have to allay these and provide the minority community a sense of security, which, in other words, meant not touching their personal laws.
As the Congress wanted to project itself as a secular outfit representative of all Indians, Jinnah’s allegations from 1939 onwards that Congress governments in the provinces had “interfered with their (Muslims) religious and social life, and trampled upon their economic and political rights, established a Hindu Raj and emboldened Hindus to ill-treat Muslims” must have worked on the minds of Nehru and other leaders too. And the same must have the Communist Party of India’s 1943 resolution accepting ‘the essence of the demand of the Pakistan’ which praised Jinnah and sought to paint Congress as a party with a religious bias. Here was a non-Muslim and an avowedly antithetical-to religion party too backing the League and its religion-based demand and branding Congress that had led the freedom movement.
Under these abrupt conditions, implementation of Uniform Civil Code didn’t stand a chance.
Reformations as such amongst the different religions: Dating back into the history of reformations made in India to remove suppression of women and make them at par with the men as per the societal parameters, we can see a hefty amount of reformations in the Hindu religion whereas just one in the Muslim religion that too with a lot of protests. As per the 2011 Census, the population of Muslim women in India is about 8.3cr out of which only 4.3cr are literate. Further, there are almost 55% of women who are married before they are 18 which is again, illegal and inhumane like most of the Shariat. BMMA conducted a Study[5] [6] [7] of Muslim women’s views on reforms in Muslim personal law— ‘Seeking Justice Within the Family’ across 10 states that revealed that an overwhelming 82% [8] of the over 4,000 women who were surveyed had no property in their name and that 78% were home makers with no income of their own. 81% of these women do not have higher education. On the topic of triple talaq, 92% women want it to be illegal whereas 93% of them want to go through mediation via a third party or a legal institution before finally ending the marriage because, of course, maximum cases of triple talaq are a result of a drunk husband who is angry over a petty issue, let’s say, because he wanted dal and there was none or because his kids were shouting and he was annoyed that his wife cannot handle them and therefore ends the ‘contract’.
There have been plenty of reformations such as Dowry Act, Widow Remarriage Act and others which have been quite helpful in removing the absurdity surrounding the lives of Hindu Women. Codification of the Hindu Law removed polygamy but it wasn’t able to resolve the questions in participation of women in guardianship and coparcenary and hence, we can say that it wasn’t successful in eradicating gender inequality altogether. Although it doesn’t stop there and it has a long way to go, especially when it is quite evident that there have been no reforms or even efforts to bring reforms since the 1950s or the post codification era.
Coming to the Muslim Personal Law which turns out to be the worst when talking about gender equality and the status of women in their society there have been no significant changes made. There is polygamy allowed, there was a judgement in the famous Shah Bano case against triple talaq which was later backed up by the then Government of Rajiv Gandhi by an act for appeasing the muslim minority in name of Secularism. Muslim personal law can be defined as ‘a mockery’ of the Indian constitution and the Rule of Law. There’s not a single thing in the Muslim Law which runs parallel with the nation.
Uniform Civil Code and the Judiciary: The Indian Judiciary always had an open ear to the cries of the women against the social injustice and always worked towards making it better. However, the government for the sake of vote bank politics has always turned a blind eye to the Muslim women and that was very evident by the ordinance passed by the Rajiv Gandhi Government overruling the judgement of the Supreme Court proving that the government is above the law and the judiciary which was an extreme political behaviour but which also made the minority the backbone of politics. Everything done in politics is for their sake of course.
The Judiciary has always, through its judgements, indicated that there is a need to maintain uniformity in personal matters of all citizens. In the Shah Bano case, it held that section 125 of CrPC imposes such obligation on ALL the husbands of India to maintain his divorced wife beyond iddat period who isn’t able to maintain herself, and is secular in character and applicable to all religions. In Ms. Jordan Deigndeh v. S.S.Chopra, D. Chinappa Reddy, J. speaking for the court and citing the Shah Bano case, observed as under: “The present case is yet another event which focuses on the immediate and compulsive need for a Uniform Civil Code. The total unsatisfactory state of affairs consequent on the lack of Uniform Civil Code is exposed by the facts of the present case.” In Sarala Mudgal v. Union of India, a division bench of the supreme Court consisting of Kuldip Singh and R.M. Sahai, JJ, stoutly advocated the introduction of a Uniform Civil Code in India. In this case, the Supreme Court held that conversion of Hindu male to Islam only for the purpose of contracting bigamous circumvents S.494 of IPC. Such marriages have been declared bigamous and void by the court. The court after referring to various precedents on the point categorically held that till Uniform Civil Code is achieved for all the Indian citizens, there can be a temptation for a Hindu husband who wishes to enter in to second marriage while the s=first marriage is subsisting to covert as a Muslim. Here, the court was pointing out to the injustice done to the first wife, legally wedded.[9] In a recent judgement, Lily Thomas v. Union of India, while dealing with the validity of second marriage contracted by a Hindu husband after conversion to Islam, the Supreme Court clarified that the court had not issued any directions for the codification of a common civil code and that the judges constituting the different benches had only expressed their views. It appears that the Apex Court in India which showed great judicial activism initially with regard to the Uniform Civil Code, took a step back with this clarification.
In 2003, when the Supreme Court declared S.118 of the Indian succession Act unconstitutional on the ground that it imposed an unreasonable restriction only on Christians in the matter f religious or charitable bequests, Justice Khare observed: “it is a matter of great regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a Uniform Civil Code in the Country.” At the same time, it must be noted that when a writ petition was filed calling for a direction to mandate the government to introduce a Uniform Civil Code in the country, the same was dismissed on the ground that this was a matter of the legislature and not that of the judiciary.[10] Court is cautious in bringing Uniform Civil Code which is evident from its observations that although a Uniform Civil Code is highly desirable, it ought not to be enacted in one go, as that would be counter productive to the unity and integrity of the nation.
The Uniform Civil Code in Goa: The state of Goa has shown a positive step in this direction by enacting a set of ‘Family Laws’ which apply to all communities in the state. Based on the Portuguese Civil Code of 1867, it governs personal matters like marriage, divorce, succession, guardianship, etc., and embraces the concept of gender equality. There is no discrimination in this code between any religion or community. Every birth, death and marriage is compulsorily registered and an equal division of property between husband and wife (irrespective of gender) and between the children can be seen. It enacts monogamy and has no worries about participating in the recent debate against triple talaq because it had no place in the code, ever. The distribution of property at the time of divorce is also designed properly in consonance with gender equality. Each spouse is entitled, in case of divorce, to a half share in the property. As far as succession is concerned, in case of the death of a spouse, it is provided that the ownership of half the property is retained by the surviving spouse, the other half to be equally divided amongst all the children, irrespective of their gender or marital status.
Conclusion: Article 44 was made to promote unity and integrity which is the cherished goal enshrined in the preamble to our constitution. Hindu laws of marriage, succession, etc have been drastically changed in the first decade of the commencement of the constitution but there has been resistance from Muslim community in this respect and for avoiding any resentment on their part, political parties in power remained reluctant to enforce a Uniform Civil Code. Justice Kuldeep Singh in his leading judgement in Sarala Mudgal v. Union of India rightly observed that Article 44 is based on the concept that there is no necessary connection between religion and personal laws. The court, therefore, requested the Government of India to secure Uniform Civil Code for all Indian citizens. No gender justice could be rendered in its comprehensive sense, unless a Uniform Civil Code containing the best provision taken from all the religions with the sole aim of doing gender justice.
Sandwiched between the Supreme Court’s mixed response and the legislature’s wariness, Uniform Civil Code in India stands as distant as a dream for a long time to come. Since the implementation of UCC will certainly bring radical changes in existing personal laws, the move for reform would be better if there is sufficient pressure from within the various communities in India.
– Tanushree Gahlot
[1] A.39 (a) (d) and € which mandates the state to ensure that men and women citizens shall enjoy right to an adequate means of livelihood. There shall be equal pay for equal work for both men and women and that the health and strength of workers (men or women) shall not be abused.
[2] Anand, Utkarsh (13 October 2015), Uniform Civil Code: There’s total confusion, why can’t it be done, SC asks govt. New Delhi: The Indian Express.
[3] Muslim Intellectual Proposes a revolutionary Uniform Civil Code. The Statesmen. Retrieved 30 November 2016.
[4] Ahmad, Tufail. “My blueprint for the Uniform Civil Code” Retrieved 30 November 2016
[5] Dhar, Aarti. “Muslim Women Want Reforms in Personal Laws, Study Reveals” The Wire. Archived from The Original on 2016-02-03. Retrieved 2016-01-27.
[6] “Muslim Women’s Views on Muslim Personal Law” Economic and Political Weekly. Retrieved 2016-01-27.
[7] “Muslim Women to Mullahs: We are here, reform personal law or else…- Firstpost”. Firstpost. Retrieved 2016-01-27.
[8] “89% Muslim women want government hand in codification of law: Study | Latest News & Updates at Daily News & Analysis” DNA retrieved 2016-01-27.
[9] http://www.lex-warrier.in/2017/12/need-uniform-civil-code/#_ftn7 Uniform Civil Code: prospects and challenges, December 17, 2017.
[10] Maharishi Avadhesh v. Union of India, AIR 2003 SC 2902