Uniform Civil Code

Postcolonial India’s modernist ambition to have a Uniform Civil Code, impressively written
into Article 44 of the Indian Constitution of 1950 as a non-justiciable Directive Principle of
State Policy, concerns not just an Indian problem but a universal predicament for lawyers
and legal systems. What is the relationship between personal status laws and general state-
made laws? To what extent should the formal law allow for, or seek to restrain, the legal
implications of religious and socio-cultural diversity? To what extent does a state, whether
secular or not, actually have power and legitimacy to decree and enforce legal uniformity?
There are many more agendas at play here than simply the central issue of legal authority,
focused on the power of the law, or simply “religion” v. “law”, or “culture” v. “law”, as we
are often still led to believe.
The object of Uniform Civil Code is to enhance national integration by eliminating
contradictions based on ideologies. Article 44 of the Indian Constitution requires the State
to secure for its citizens a Uniform Civil Code throughout the territory of India. The term
‘civil code’ is used to cover the entire body of laws governing rights relating to property and
personal matters such as marriage, divorce, maintenance, adoption and inheritance. It aims
to bring all communities on a common platform on matters which are currently governed by
diverse personal laws. However, even after 60 years of independence, our law makers are
yet to give effect to this provision.
UNIFORM CIVIL CODE IN CONTEXT OF INDIAN CONSTITUTION
Like the concept of secularism, justice , liberty, equality and fraternity all are essential
and inseparable part of Indian Constitution and along with clarity and security are also
considered as essential part of the constitution and as stated earlier prevalence of different
personal laws ruins the clarity of laws and creates apprehensions in the mind of different
religions so the very purpose of the Constitution is not fulfilled and there is a necessity for
the formation of Uniform Civil Code.
Providing justice without equality to the individual will not fulfil the very basic purpose
of the Constitution. It will create such a situation in which a person have the power to go to
courts for infringement of his rights but the basis of this infringement is equality itself
which is not provided to individual.
Along with the above reasons the Fundamental Rights which are considered to be the
basic structure of the Constitution will also not be provided to the individual under the garb
of different personal laws. There will be infringement of Articles like 14, 15, 16, 17 and 18.
As all of them talks about equality like Article 15 prohibits discrimination on the grounds
only of religion, race, caste, sex or any of them. Article 16 talks about equality in matters of
public employment. Thus the very purpose of these Articles will not be fulfilled if the
different personal will keep on prevailing as they provide different treatment to individuals
with in accordance with the religion they follow.
Need for a Uniform Civil Code:
Ours is a country with several different religions and belief systems. The accepted principle
of law is that personal belief systems and laws must be in conformity with the Constitution
and not the other way round. Article 25 of the Constitution guarantees to every person the
freedom of conscience and the right to profess, practice and propagate religion. Article 26 of
the Constitution guarantees to every religious denomination the right to manage its own
affairs in the matters of religion. No set of laws can violate these Articles, which essentially
protect the religious freedom of different person or communities. We are thus presented
with a situation that seems somewhat contradictory; how can there be a uniform set of laws
which protects religious freedom at the same time? The implementation of a uniform set of
laws calls for discarding certain personal laws which go against society’s general outlook as
a whole, and this may amount to violation of the above mentioned Articles of the
Constitution.
With multiple belief systems, come multiple ideological conflicts. To live together in
concurrence with such diversity, we need to have uniformity at some level so as to avoid
such conflicts. What we need is a Uniform Civil Code in the form of a sophisticated,
harmonized system of legal regulation that maintains and skilfully uses the input of personal
laws and yet achieves a measure of legal uniformity. As long as the code does not go against
the essence i.e. the core or fundamental belief of any particular religion, it will not go
against the religious freedom guaranteed by the Constitution.
What are the Pros of the Uniform Civil Code?
To provide equal status to all citizens- In the modern era, a secular democratic republic
should have a common civil and personal laws for its citizens irrespective of their religion,
class, caste, gender etc.
To promote gender parity- It is commonly observed that personal laws of almost all
religions are discriminatory towards women. Men are usually granted upper preferential
status in matters of succession and inheritance. Uniform civil code will bring both men and
women at par.
To accommodate the aspirations of the young population- A contemporary India is a
totally new society with 55% of its population is below 25 years of age. Their social
attitudes and aspirations are shaped by universal and global principles of equality, humanity,
and modernity. Their view of shedding identity on the basis of any religion has to be given a
serious consideration so as to utilize their full potential towards nation building.
To support the national integration- All Indian citizens are already equal before the court
of law as the criminal laws and other civil laws (except personal laws) are same for all. With
the implementation of Uniform Civil Code, all citizen will share the same set of personal
laws. There will be no scope of politicization of issues of the discrimination or concessions
or special privileges enjoyed by a particular community on the basis of their particular
religious personal laws.
To bypass the contentious issue of reform of existing personal laws- Existing personal
laws are mainly based on the upper-class patriarchal notions of the society in all religions.
The demand of UCC is normally made by aggrieved women as a substitute for existing
personal laws as patriarchal orthodox people still deem the reforms in personal laws will
destroy their sanctity and oppose it profusely.

Position of the Legislature:

The question of implementation of a common Civil Code has been raised mainly with
regard to matters where, the personal laws of a religious community have been challenged
in the court of law as being violative of the Constitution or against general public interest.
Our law makers have generally shied away from legislating on such points of personal law
as are considered to be of controversial or sensitive nature, for fear such legislation being
labelled as an intrusion on the above rights thereby resulting in strong backlash. This
became evident from the reaction to the judgment of the Supreme Court in the Shah Bano
case which gave a divorced Muslim woman the right to claim maintenance even after the
period of iddat. If the amount known as mehr, paid to her on divorce was not sufficient for
her livelihood, she could claim maintenance under S.125 of the Criminal Procedure Code
(Cr.P.C). There was great agitation against this decision, led by Mullas and Maulvis and
other fundamentalist sections, as being against the tenets of Islam. Succumbing to the
pressure of vote-bank politics and in order to appease the Muslim fundamentalists, the Rajiv
Gandhi government enacted The Muslim Women (Protection of Rights in Divorce) Act to
undo this decision. This Act exempted Muslims from the general law regulations of the
Cr.P.C, including S.125. It tried to restrict the divorced Muslim woman’s right to
maintenance up to the iddat period only and provided that under section 3(1)(a) a divorced
women is entitled to reasonable and fair provision and maintenance within the iddat period.
Similarly in case of the Adoption of Children Bill 1972, the Muslim community opposed a
uniform law regarding adoption applicable to all communities since Islam does not
recognize adoption. Due to this opposition, the bill was subsequently dropped and
reintroduced in 1980 with an express clause of non-applicability to Muslims. This was again
opposed, this time by the Bombay Zoroastrian Jashan Committee, which formed a special
committee to exempt Parsis from the bill. The Adoption of Children Bill, 1995, was passed
by both Houses of the Maharashtra legislative assembly, but is still awaiting presidential
assent.
What needs to be understood is that ‘the religion of an individual or denomination has
nothing to do in the matter of socio-economic laws of the State.’ The freedom of religion
conferred by the Constitution is not absolute and by no means does it allow religion to
contravene the secular rights of the citizens and the power of the State to regulate the socio-
economic relations. Basically, a Common Civil Code will override only those personal laws
which do not form the essence of any religion. The key word here is ‘essence.’ Personal
laws which form the fundamental basis or the core of any belief system are ideally,
excluded from the purview of the Common Civil Code.

Position of the Supreme Court:

The Supreme Court seems to have a divided opinion on the introduction of a Uniform Civil
Code. On one hand, it has rejected attempts to do so through public interest litigation but on
the other, it has recommended early legislation for its implementation.
In Maharishi Avadhesh v. Union of India, the Supreme Court dismissed a writ petition to
introduce a common Civil Code on the ground that it was a matter for the legislature and in
Ahmedabad Women Action Group v. Union of India, the Supreme Court showed reluctance
to interfere in matters of personal law.
But in Sarla Mudgal v. Union of India, the Supreme Court directed the then Prime
Minister P.V. Narsimha Rao to take a fresh look at Article 44, which the Court held to be
imperative for both protection of the oppressed and promotion of national integrity and
unity. It instructed the Union Government through the Secretary to Ministry of Law and
Justice to file an affidavit, enumerating the steps taken and efforts made by the Government
towards achieving a common civil code for the citizens of India. The Division Bench of
Kuldip Singh and R.M. Sahai said that since 1950 a number of Governments have come and
gone but have failed to make any efforts towards implementing the constitutional mandate
under Article 44. It is based on the concept that there is no necessary connection between
religion and personal law in a civilized society. No religion permits deliberate distortion.
Marriage, succession and the like are matters of a secular nature and therefore can be
regulated by law. Unfortunately, it was later clarified in an appeal that the direction issued
by the Court was only an obiter dicta and not legally binding on the Government.
In Lily Thomas etc. v. Union of India and others the Court held that:- “The desirability of
UCC can hardly be doubted. But it can concretize only when social climate is properly built
up by elite of the society, statement amongst leaders who instead of gaining personal
mileage rise above and awaken the masses to accept the change.”
The court further added while it was desirable to have a UCC, the time was yet not ripe and
the issue should (be) entrusted to the Law Commission which may examine the same in
consultation with minorities Commission. That is why when the court drew up the final
order signed by both the learned judges it said, “the writ petition are allowed in terms of the
answer to the questions posed in the opinion of kuldip Singh, J. These questions we have
extracted earlier and the decision was confined to conclusions reached thereon whereas the
observations on the desirability of enacting the UCC were incidentally made.”
In Danial Latifi v. Union of India, a very controversial question of political significance
(in the background of a secular constitution and the concept of welfare state) was revisited
i.e. whether or not a divorced Muslim woman after divorce post iddat period is entitled to
maintenance by her husband. Here, the Supreme Court adopted a middle path and held that
reasonable and fair provisions include provision for the future of the divorced wife
(including maintenance) and it does not confine itself to the iddat period only. The court
upheld the validity of Sections 3 and 4 of the Muslim Women (Protection of rights on
Divorce) Act, 1986, as not being violative of articles 14, 15 and 21 of the Constitution of
India. Under section 3 of the Muslim Women (Protection of rights on Divorce) Act, 1986, a
Muslim husband is liable to make reasonable and fair provision for future of divorced wife
which includes maintenance also, so she is not entitled to claim maintenance under section
125 of Cr.P.C. Under section 4 of the Act, divorced Muslim woman unable to maintain
herself after iddat period can proceed against her relatives or wakf Board for maintenance.
Rajendra Babu, J., on behalf of a five judges bench consisting of Patnaik,Mohapatra,
Doraiswamy, Patil, JJ.. And he observed that: - “In interpreting the provisions where
matrimonial relationship is involved we have to consider the social conditions prevalent in
our society. It is a small solace to say that such a woman should be compensated in terms of
money towards her livelihood and such a relief which partakes basic human rights to secure
gender and social justice is universally recognized by persons belonging to all religions.”
In John Vallamattom v. Union of India the Supreme Court in a PIL by a Christian priest,
John and other citizens of Christian community, challenging the validity of the Section 118
of the Indian Succession Act, 1925, while striking down the said section as being violative
of article 14 of the Constitution, and also concerned over the contradictions in marriage
laws of various religions, in a historic judgments, emphasized the need for a legislation by
Parliament on common civil code. Stressing that there was no “necessary connection”
between religious and personal laws in a civilized society, a three judge bench held that it
was matter of regret that article 44 of the Constitution, which provided for the state to
“endeavour” to secure a UCC for its citizens throughout India, had not been affected. The
Court further observed that “Parliament is still to step in for framing a UCC in the country.
A UCC will help the cause of the national integration by removing the contradiction based
on ideologies.”
It can be said that after mentioning the apex court view regarding the implementation of
UCC that Art. 44 needs to be interpreted to sustain the plurastic character of the Indian
community. It should be on the gender justice rather than on uniformity. Although the
Supreme Court has not yet interpreted Art. 44. On all his decisions the Court enjoined upon
the parliament to enact a UCC without specifying what a UCC would mean. However, the
word “uniform” should not mean the same law for all but it should mean similar laws for all
and similarly should be regarding equality and gender justice.

Implementation at State-Level:
Even though a nation-wide Civil Code is not yet in place, a positive step in this direction has
already been taken. The state of Goa has enacted a set of ‘Family Laws’, which is applicable
to all communities; Hindus, Christians, Muslims and others. There is no discrimination on
the basis of religion, caste or gender. The Goa civil code is largely based on the Portuguese
civil code of 1867, with some modifications based on the Portuguese Decrees on Marriage
and Divorce of 1910, the Portuguese Decrees on Canonical Marriages of 1946, and the
Portuguese Gentle Hindu Usages Decrees of 1880. It includes laws governing marriage and
divorce, succession, guardianship, property, domicile, possession, etc. Some
fundamentalists opposed its enactment in the early 1980s but their attempts to introduce
Sharia law in Goa were ultimately met with defeat by liberal Muslims who insisted on the
continuance of the unified civil code. Former Chief Justice Y.V. Chandrachud expressed
hope that the Goa Civil Code would one day “awaken the rest of bigoted India and inspire it
to emulate Goa.”
Between the Supreme Court’s mixed response and the legislature’s wariness, the
implementation of a national common Civil Code seems to be a distant dream. It is only
enlightened public opinion that will help fulfil it. Communal divides, vote-bank politics,
staunch fundamentalism are currently barriers to its realization but with time and tolerance
they can be overcome. What must be perceived as a matter of defining an individual’s rights
deteriorates instead, into a “majority versus minority” issue. The welfare of the community
as a whole must be considered instead of a particular class or sect. No doubt, the realization
of a Uniform Civil Code is a tough job, given the vast ideological diversity. But a uniform
civil law is necessary in order to be truly secular. It is our collective duty as a modern
society to rise above cultural and religious differences and give effect to this constitutional
mandate which is 63 years overdue.

It is suggested to go through the class notes also.