The Debate on Uniform Civil Code – Explained, pointwise

For 7PM Editorial Archives click HERE
Introduction

Uniform Civil Code (UCC) is the proposal to replace the personal laws with a common law for property, marriage, divorce, inheritance and succession for all religions. Article 44 of the Constitution of India mentions that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Both the Union and State Governments have the power to enact laws on issues related to marriage, divorce, inheritance and adoption etc. under the Item 5 of the Concurrent List (Seventh Schedule). The Governments of several States are contemplating on the enactment of UCC in their respective States.

What is Uniform Civil Code?

At present, several aspects of personal lives like marriage, divorce, inheritance, adoption and maintenance are governed by the personal laws. The personal laws are based on scriptures and customs of the religions and are separate for different religious communities.

Uniform Civil Code (UCC) will replace these personal laws and will bring in a uniform civil law. The uniform law will be applicable to all the citizens irrespective of the religion.

The demand for a Uniform Civil Code was first put forward by women activists in the beginning of the twentieth century, with the objective of women’s rights, equality and secularism. The Constituent Assembly had put the UCC under the Directive Principles of State Policy (DPSP) having considered the UCC as desirable but voluntary.

ForumIAS is now in Hyderabad. Click here to know more
What is the status of UCC in India?

In furtherance of the constitutional goal, Parliament enacted the Special Marriage Act, 1954; a civil marriage law. It didn’t replace any community-specific law. It was made available to all citizens as a secular alternative. Any man and woman, whether professing the same or different religions, could opt for a civil marriage. Existing religious marriages could also be voluntarily converted into civil marriages by registration under the Act. Section 21 of the Act laid down that all couples married under its provisions and their descendants will, in regard to their properties, be governed by the religion-neutral chapter on inheritance in the Indian Succession Act of 1925The Special Marriage Act and the Indian Succession Act together constitute a UCC of an optional nature for all Indians alike.

When Goa, Daman and Diu were liberated from Portuguese rule in the early 1960s, a Parliamentary law had provided for continued application of the Portuguese Civil Code of 1867 in those territories. Similarly, in Puducherry, a sizable section of citizens called Renoncants (Indians whose ancestors had during the French rule abandoned personal law) are still governed by the 218-year old French Civil Code of 1804. 

However, most aspects continue to be governed by personal laws e.g., presently, there is a Hindu Marriage Act (1955), a Muslim Personal Law (Shariat) Application Act (1937), a Christian Marriage Act (1872) and a Parsee Marriage and Divorce Act (1937). Hindu Marriage Act applies to any person who is a Hindu, Buddhist, Jain or Sikh by religion.

What are the advantages of implementing the UCC?

Equality: India is a secular democracy. A common civil and personal law in India would ensure equality among all its citizens, irrespective of their religion, class, caste, gender etc..

Reduce gender discrimination: Personal laws of almost all religions are discriminatory towards women. Men are usually granted upper status in personal laws. Uniform civil code will bring both men and women at par and would reduce discrimination against women. It will promote gender equality and welfare of women.

Societal reforms: Existing personal laws are mainly based on the patriarchal notions of the society in all religions. UCC will remove such patriarchal notions by destroying their sanctity.

Simplify legal matters: UCC will simplify the cumbersome legal matters governed by personal laws. It will also help in speedy disposal of cases and reduce burden on the judiciary.

National integration: A Uniform Civil Code will eliminate the scope of politicisation of issues of perceived discrimination or concessions/special privileges enjoyed by communities on the basis of their religious personal laws.

What are the challenges in implementing the UCC?

Diverse personal laws and customary practices: There is huge diversity in the customary practices among communities across India. This makes uniformity very difficult to achieve. Further, a vast portion of personal laws lacks codification. Enforcing uniformity will interfere with these practices. For example, Special Marriage Act, 1954 (A Secular Law) prohibits marriage between first cousins. This a common practice in some communities in India. Similarly, marriage between second cousins is more acceptable and prevalent among communities in Southern India compared to the North.

False perceptions: There are still false perceptions about the UCC among the communities. This makes a rational debate on its implementation quite difficult.

Violation of Fundamental Rights: There is an apprehension that the uniform civil code may be in conflict with the fundamental rights of freedom of conscience of free profession, practice and propagation of religions (Article 25), and the freedom to manage religious affairs (Article 26).

Political willpower: The Judiciary has asked the Government multiple times to enact a UCC. The government lacks the will to face the consequences of abolishing the personal laws of the religions and to convince the people about the benefits of UCC.

What is the Judicial view on UCC?

Mohd. Ahmed Khan v. Shah Bano Begum and Ors (1985): The Supreme Court directed the Government to enact a UCC. The SC observed that UCC will help the cause of national integration.

Sarla Mudgal v. Union of India (1995): The Supreme Court directed the Government to reflect the steps taken towards securing a UCC for the citizens of India.

Pannalal Bansilal Patil v. State of Andhra Pradesh (1996): The Supreme Court observed that while a uniform law is desirable, its enactment in one go might be counter-productive to the unity and integrity of the nation. Gradual progressive change should be brought about.

John Vallamattom and Ors. v. Union of India (2003): The Supreme Court of India held that there is no necessary connection between religious and personal law in a civilized society. Matters of secular character like marriage cannot be brought within the guarantee enshrined under Article 25 and 26.

What should be the approach going ahead?

First, major awareness efforts are needed to reform current personal laws. This should be initiated and undertaken by the communities themselves. Legal intervention should be undertaken only if a practice violates fundamental rights of citizens (especially women).

Second, the social transformation from diverse civil code to uniformity should be gradual. Therefore, the government must adopt a piecemeal approach and restrain implementing all aspects in single legislation. Matters related to marriage, divorce, inheritance, etc. can be dealt separately taking up one issue/matter at a time

Third, there should be an in-depth study and wider consultation involving all stakeholders including academia, constitutional experts, religious and political leadership. This will ensure better formulation and greater acceptability. 

Fourth, the Law Commission’s recommendations should be adopted.

Recommendations of Law Commission on Uniform Civil Code UCC UPSC

Conclusion

UCC in its true spirit, must be brought about by making gradual changes. As recommended by the Law Commission, the focus should be on ending discriminatory practices against women, rather than enforcing uniformity. However, until that is done, the better course would be to bring about small reforms, correcting some inherent irrationality in some of the personal laws, and make them suitable for modern times. This will lay the foundation of implementing a UCC at a later date.

Source: Indian Express, Indian Express, The Hindu, The Leaflet

Print Friendly and PDF