 "Uniform Civil Code: What is it and what are the arguments against it?")
The 22nd Law Commission of India on Wednesday sought fresh suggestions from various stakeholders, including public and religious organisations on the Uniform Civil Code (UCC). The commission sought suggestions as the consultation paper issued by the previous law commission on the subject was more than three years old.
UCC calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, maintenance, and adoption.
The term ‘Uniform Civil Code’ is mentioned in Part IV, Article 44 of the Indian Constitution. Article 44 states that "the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India".
Part IV of the Constitution outlines the Directive Principles of State Policy, which, while not enforceable or justiciable in a court of law, are fundamental to the country’s governance.
The objective of Article 44 was to address discrimination against vulnerable groups and harmonise diverse cultural groups across the country. Dr B R Ambedkar, while formulating the Constitution, had said that a UCC is desirable but, for the moment, it should remain voluntary, and thus Article 35 of the draft Constitution was added as a part of the Directive Principles of the State Policy in Part IV of the Constitution of India as Article 44.
It was incorporated in the Constitution as an aspect that would be fulfilled when the nation would be ready to accept it and the social acceptance to the UCC could be made.
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In his speech in the Constituent Assembly, Ambedkar had said, "No one need be apprehensive that if the State has the power, the State will immediately proceed to execute... that power, in a manner, may be found to be objectionable by the Muslims or by the Christians or by any other community. I think it would be a mad government if it did so."
Origin of the Uniform Civil Code
The debate for a uniform civil code dates back to the colonial period in India. In 1835, the British government tried to reform local social and religious customs and stressed upon the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.
Under the East India Company, the Muslim Personal Law (Shariat) Application Act was passed in 1937 to formulate an Islamic law code for Indian Muslims. It had no uniformity in its application at lower courts due to the diversity of the local cultures of Muslims in different parts of India.
The increase in legislation by British rule forced the government to form the B N Rau Committee to codify the Hindu law in 1941. The task of the Hindu Law Committee was to examine the question of the necessity of common Hindu laws. The committee recommended a codified Hindu law, which would give equal rights to women. The 1937 Act was reviewed and the committee recommended a civil code of marriage and succession for Hindus.
Mohd Ahmed Khan vs Shah Bano Begum case (1985)
Shah Bano (73) was divorced by her husband through triple talaq, and she was denied maintenance. She approached the court demanding maintenance for herself and her five children after her divorce from her husband. The Supreme Court ruled in her favour 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.
Further, it recommended that a uniform civil code be set up. Following this, Bano's husband appealed in the Supreme Court, stating that he had fulfilled all his obligations under the Islamic law.
After the court's judgement, nationwide meetings and agitations were held. Under pressure, the then government passed the Muslim Women’s (Right to protection on divorce ) Act (MWA) in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.
Why are people opposing the UCC?
The main argument against the UCC is that it violates the constitutional freedom to practice the religion of choice, which allows religious communities to follow their respective personal laws. For example, Article 25 gives every religious group the right to manage its own affairs, and Article 29 gives them the right to conserve their distinct culture.
Secondly, it is argued that if codified civil laws and criminal laws such as the Code of Criminal Procedure (CrPC) and the Indian Penal Code (IPC) don't follow ‘one nation, one law’, then how can this diktat be applied to personal laws of communities? For example, the law of anticipatory bail differs from one state to another.
Experts argue that the UCC will impose a 'Hinduised' code for all communities. For example, a UCC could include provisions for family disputes on property inheritance, which may be in line with Hindu customs and will legally force other communities to follow the same.
The UCC is likely to bring multiple changes to the Muslim Personal Law, including the abolition of polygamy practices.
All India Majlis-E-Ittehadul Muslimeen (AIMIM) Chief Asaduddin Owaisi had said, "It (Uniform Civil Code) is not required in this country. As per Goa civil code, Hindu men have the right to second marriage if the wife fails to deliver a male child by the age of 30. The Law Commission has opined that a UCC is not required."
However, some experts feel that a uniform civil code will help in integrating India more than it has ever been since independence. It will help in bringing Indians, regardless of their caste, religion or tribe, under one national civil code of conduct. They also feel that a UCC will help in improving the condition of women in India.
Has any state implemented the UCC?
UCC is in force only in the state of Goa. The Goa Civil Code was given by the Portuguese in 1867.
However, Uttarakhand is set to be the first state in post-Independent to implement UCC. The Bharatiya Janata Party (BJP) has vowed to implement UCC in Assam and Gujarat as well.
What has the Law Commission said?
In 2016, the Modi government had requested the Law Commission of India to determine how to form a code in the presence of “thousands of personal laws” in the country.
In 2018, the Law Commission submitted a 185-page consultation paper on the reform of family law. The paper stated that a unified nation did not necessarily need “uniformity”, adding that secularism could not contradict the plurality prevalent in the country. The Commission noted that the term “secularism” had meaning only if it assured the expression of any form of difference.
While saying that a UCC "is neither necessary nor desirable at this stage", the Law Commission recommended that discriminatory practices, prejudices, and stereotypes within a particular religion and its personal laws should be studied and amended. Some of these amendments include fixing the marriageable age for boys and girls at 18 years so that they are married as equals, making adultery a ground for divorce for men and women and simplifying the divorce procedure.
Last year, the then law minister Kiren Rijiju had said in the Rajya Sabha that states are empowered to enact personal laws that decide issues such as succession, marriage and divorce, in their endeavour to secure a uniform civil code (UCC).
However, he said, the government had no plans to set up a panel to implement the UCC and requested the 22nd Law Commission to undertake an examination of various issues relating to the same.