Understanding Uniform Civil Code (UCC) with landmark judgments

Sourav Shekhar is a final-year BA LLB student at RNB Global University. Read More

Abstract

The Uniform Civil Code, or UCC in its abbreviation, is one of the most important and controversial aspects of Indian politics, law, and society. It is based on the very principle of replacing diverse personal laws with a single, uniform legal framework in governing marriages, divorces, inheritance, and other personal matters, irrespective of religion. In essence, while the UCC draws immensely from Article 44 of the Directive Principles of State Policy, its constitutional ideal of equality and justice is balanced by the right to religious freedom under Articles 25 and 26.

The paper discusses the constitutional backing of the UCC, the historical context within which the demand cropped up, the legal framework relating to it, some of the important pronouncements by the judiciary, and the arguments both for and against its implementation. It contends precisely how UCC applies to constitutional values of secularism, equality, and gender justice in the face of challenges due to religious diversity, political sensitivities, and minority rights. It deliberates upon possible ways of achieving UCC in India through comparison of experiences with other countries and by putting forward pragmatic ways such as gradual reform and codification of personal laws. It concludes by emphasizing the consensus that has to be reached and also the need for a balanced approach which pays respect to both legal uniformity and cultural diversity.

Introduction

UCC is one of the most controversial and hottest topics of debates in Indian politics, law, and society. The concept simply denotes the idea of bringing into force a single uniform set of personal laws for all citizens of India irrespective of their religion, caste, or tribe. The UCC would govern matters related to marriage, divorce, inheritance, adoption, and succession, which are at present governed by a set of different personal laws for different religious communities. Hence, Article 44 of the Indian Constitution has contemplated a uniform civil code under the mask of DPSP in express terms:

“The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.”

But although it has been in discussion since Independence, it is yet to be brought into practice.

Constitutional Basis of UCC

The UCC thus finds its genesis in Article 44 of the DPSP, which, though not enforceable before the courts of law, ensures that the guiding tenets of the state would always be inalienable from the ideals of the polity. The expression of a UCC in the DPSP suggests the intent of the framers of the constitution to bring the personal laws in conformity with the principles of equality and justice, without eroding the bottom line of secularism.

However, the right to freedom of religion as guaranteed under Article 25 and 26 of the Constitution provides for the right to manage the religious affairs of a body. This has given way to an implicit constitutional tussle between the right of religious freedom on one hand and the directive for a UCC on the other. The judiciary has stood at the hot core of the debate, interpreting the Constitution in a manner that balances individual rights against religious autonomy.

Historical Context

Pre-Independence Developments

The roots of India’s pluralistic legal system, giving a license for different religious communities to follow their personal laws, lie in the colonial era. The British established separate legal frameworks for different religious communities. For instance, the British applied Hindu laws to Hindus and Sharia law to Muslims, among other personal laws to Christians and Parsis. This was not to provoke a backlash from religious groups in their colonies, the colonial government did not impose a uniform legal framework.

The British enforced a common criminal code through the Indian Penal Code, whereas the civil matters remained with personal laws. Therefore, it laid the ground for a debate in post-independence times on the need for a UCC to attain legal uniformity and social equality.

Debates during Constitution Making

The issue of Uniform Civil Code is one of the contentious debates during the making of the Indian constitution in the Constituent Assembly. Whereas Dr. B.R. Ambedkar, who headed the Drafting Committee, was keen on UCC to ensure equality and gender justice, on the other hand, religious heads with some of the members of the Assembly opposed the idea as that would amount to intrusion into the private domain of religion. To avoid any contentious situation, the Assembly deleted the UCC from the Constitution’s legally enforceable parts and made it a part of the Directive Principles, which reduced its status to that of a future ideal rather than an imminent requirement.

Developments after Independence

In the decades following independence, the UCC debate did not completely perish, but the political leadership did nothing to vigorously pursue the issue. Instead of a UCC, the state began reforming the personal laws in bits and pieces. For example, the Hindu personal law was reformed in the 1950s by a set of legislative enactments like the Hindu Marriage Act, 1955, and the Hindu Succession Act, 1956. This was not extended to the Muslim, Christian, or Parsi personal law. Many see this unequal approach as leading to legal inequality and gender injustice.

Present Legal Scenario

The legal system of India, pertaining to personal matters, is fragmented, and various communities have various sets of personal laws in which:

—: Hindu Personal Law: The Hindu personal laws apply to Hindus, Buddhists, Jains, and Sikhs. The corpus of Hindu personal law basically consists of the Hindu Marriage Act of 1955, Hindu Succession Act of 1956, Hindu Adoption and Maintenance Act of 1956, and Hindu Minority and Guardianship Act of 1956. These legislations have proved regulatory mechanism with respect to marriage, divorce, adoption, inheritance, and guardianship.

—: Muslim Personal Law: Most of the matters relating to the Muslims in India are mainly governed by Sharia, which is a code based on Islamic religious texts. The matters relating to marriage, divorce, inheritance, and maintenance are governed by the Muslim Personal Law (Shariat) Application Act of 1937. The Dissolution of Muslim Marriages Act of 1939 provides for divorce. In matters such as divorce and inheritance, Muslim personal law has been the focal point of controversy and reformist efforts.

—: Personal Laws of Christians: The various laws that predominantly govern the Christian citizens include the Indian Christian Marriage Act, 1872, the Indian Divorce Act, 1869, and also the Succession Act, 1925. The Christian personal law has come under much criticism in recent times due to its obsoleteness and discrimination in divorce and succession cases.

—: Parsi Personal Law: The Parsis do have their personal laws in the form of Parsi Marriage and Divorce Act, 1936, and Succession Act, 1925. Although the Parsis are a small community, yet their personal law does provide a definite legal structure in marriage, divorce, and succession to property.

Besides these religious personal laws, some other laws, such as the Special Marriage Act of 1954, do allow for interfaith marriages and thereby provide a secular alternative to religious personal laws. Yet, the application of those secular laws is limited, and religious personal laws keep dominating the legal landscape.

Landmark Judicial Pronouncements

The Indian judiciary has played a very important role in shaping the debate over UCC with successive calls for the enactment of a UCC in the cause of equality and justice. Some of the landmark cases are here:

Shah Bano Case (1985)[1] : Involved a Muslim woman, Shah Bano, who approached the judiciary to seek maintenance from her husband under section 125 of the Code of Criminal Procedure after being divorced through the practice of triple talaq.

The Supreme Court gave a decree in her favor and awarded her maintenance. The decree based itself on the secular criminal law rather than the Muslim personal law. Still. There was strong condemnation by the Muslim clerics, and so the government passed the Muslim Women Protection of Rights on Divorce Act, 1986, which was far more diluted the ordinance of the Supreme Court, and thus the controversy regarding the UCC was again ignited.

Sarla Mudgal Case (1995)[2]: This case was an outcome of conversions by Hindu husbands to Islam just to keep more than one wife, which is prohibited in the former under Hindu law but is allowed under Muslim law. The Supreme Court ruled that such conversions were not bonafide and a uniform civil code was necessary to be enacted, till which the provisions in various religious laws would be misused in this manner. In explicit terms, the court demanded that a UCC be enacted to prevent such misuse and bring about uniformity in the law.

Triple Talaq Case (2017)[3]: (Shayara Bano v. Union of India)– The Supreme Court had held that the practice of instant triple talaq/talaq-e-bidat was unconstitutional. It explained that the practice was not an essential religious practice and that it was violative of the basic rights of Muslim women. This eventually resulted in the passing of the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalizing the practice. The judgment was regarded as a significant victory for gender justice, and it reignited the demand for UCC.

Goa’s Civil Code: Goa has conventionally been hailed as a success story as far as the UCC goes in India. It adheres to the Portuguese Civil Code, which applies equally to all its citizens regardless of their religions. Marriage, divorce, and inheritance are conducted largely on a uniform basis across religious groups. Goa is very often cited as an example by the UCC proponents for emulation at large in the country.

Arguments in Favor of the UCC

1. Equality and Gender Justice

A major reason for the UCC is that there shall not be any discrimination or partiality and that it guarantees equality before the law, including gender justice. Under the existing personal laws, women are discriminated against in matters of marriage, divorce, and inheritance. For instance, Muslim women have, in the past, been subjected to inequalities by practices such as triple talaq and polygamy, whereas under Hindu personal law, a Hindu woman has enjoyed only limited rights regarding property inheritance until very recently. The UCC would help eradicate this anomaly and assure women from all religions equal rights.

2. Safeguarding Secularism

A UCC is held out as part and parcel of a secular state: Laws are to be neutral to religion. Secularism in India implies not anti-religion, but equal tolerance of all religions. But again, the personal laws at present in force in India give a further fillip to the legal division in the name of religion. A UCC will advance the idea of common citizenship and the secular framework of law within which equally placed citizens are subjected to similar laws without in the least affecting their religious sensibilities.

3. National Integration and Unity

The advocates put forth that a single legal code would lead to national integration by erasing legal differences amongst the religious communities. By establishing a common set of laws, the UCC would contribute to forging the sense of unity among Indians, since all citizens would be subject to the same legal compulsions and protections. This can help in easing communal tensions and furthering social cohesion.

4. Simplification and Modernizing of Law

Unfortunately, the Indian legal system of today is in a maze and fragmented with plural laws for different communities, which sometime causes ambiguity and legal uncertainty, particularly in cases involving interfaith marriages or disputes between persons professing different religions. UCC basically means simplifying the law by providing a single codified set of laws applicable to all citizens, which will make the law more accessible and easier to understand for the public and legal practitioners.

Arguments Against the UCC

1. Threat to Religious Freedom and Cultural Diversity

The opponents of the UCC argue that it would dismantle the rich cultural and religious diversity of India by slapping one uniform set of laws, which may run askew with the belief systems of a particular community or another. These personal laws are also inextricably linked with the very cultural and religious identities of different communities; hence, people view attempts at substituting them with a uniform code as a denial of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution. Some have expressed apprehensions that a UCC will impose majoritarian values on minority communities.

2. Political Sensitivities and Minority Rights

The UCC has been a politically sensitive issue, especially among the minority communities due to the belief that such a codification would erode their rights and autonomy. The Muslims, especially, have often complained that the UCC would be a sure demise of Islamic law and a decoy to thrust Hindu majoritarian values on them. These have been compounded by the fact that efforts towards reform have focused inordinately upon Muslim personal law, leaving other personal laws relatively untouched. The fear of marginalization has led to strong resistance from minority groups.

3. Lack of Consensus

Another critical obstacle in the way to implement UCC is that there is no social consensus on the issue. India being a highly diverse country with deep religious and cultural fissures, a consensus on one set of personal laws applicable to all has proved extremely difficult to achieve. Without broad consultation and consensus, any attempt at the implementation of the UCC would alienate large sections of society and might lead to social unrest.

4. Concerns about Gender Bias in Codified Laws

Critics further argue that reducing personal laws into a uniform civil code may not necessarily lead to gender justice. For example, even within the existing secular laws, there are elements that can prove inhibiting to women’s needs or those of any vulnerable group. The replacement of religious personal laws with a UCC would not ipso facto meet the requirement of gender justice unless the code is so constructed as to be non-discriminatory and just to all citizens.

Comparison with Other Countries

The concept of UCC is by no means an Indian invention; in fact, several other countries have uniform civil codes that apply to personal laws. However, the context and experience of those countries have differed significantly from India’s pluralistic society.

1. France: In France, there is a strictly secular legal system in which no role of religion in personal matters is allowed. The French Civil Code or Napoleonic Code is uniform and applied to all citizens of the country irrespective of their religious background. It clearly upholds France’s severe adherence to the principle of laïcité or secularism.
2. Turkey: In 1926, the secular civil code was adopted under the leadership of Mustafa Kemal Atatürk. It derived its pattern from the Swiss Civil Code and replaced the conventional Ottoman legal system that was based on Sharia. Now, all sectors of the citizens of Turkey, irrespective of their religion, follow the same civil code.
3. Indonesia: Indonesia, though a predominantly Muslim country, follows the hybrid legal system wherein the majority of the population is under the civil law, with Muslims, at least to the far extent of certain personal matters, being placed under Islamic law. In practice, nonetheless, the application of Islamic law is rather limited and does not encompass all aspects of personal law.
4. United States: It adheres to the secular law system; it does not identify with personal laws on the basis of religion. Matters relating to marriage, divorce, and even inheritance fall under state laws, which treat every citizen as a single entity. Religious matters are treated as private affairs and do not impinge on personal law.

Gradual Implementation

Given that the debate on UCC is sensitive and complex, there is great emphasis, on the part of most legal experts and policymakers, to implement UCC in a graduated and phased manner. A rather pragmatic approach, in place of an immediate and complete replacement of personal laws, should be:

1. Codification and Reform of Personal Laws: The existing personal laws could be codified and reformed in the light of removing discrimination and setting up greater gender equality. Codification could be undertaken through a process of public consultation with religious communities to ensure consensus and that new laws reflect Congruity with Constitutional and cultural underpinnings.
2. Special Marriage Act may serve as a model: The Special Marriage Act, which provides a civil Lever of religious marriage laws, may serve as a model for further reforms. The scope and access of the Special Marriage Act can be extended so that more citizens are encouraged to opt for the secular Personal Laws over a certain period of time. It will slowly make religious laws ineffective to wield an influence upon the lives of the citizens.
3. Awareness and Education: Public awareness campaigns and education could help clear misunderstandings about the UCC and raise broader support for such a legal reform. Involvement by religious leaders and civil society organizations could allow a dialogue that lessens the resistance.
4. Safeguarding Minority Rights Legally: Any proposed legislation of the UCC will necessarily have to incorporate mechanisms that forestall the erosion of minority rights through this new legal code and avoid skewed effects on religious and cultural communities. Legal mechanisms can be put in place to provide for special concerns and grievances.

Conclusion

The issue of the Uniform Civil Code (UCC) reflects the broader societal, constitutional, and legal dilemmas that India faces in harmonizing individual rights with collective cultural and religious identities. The UCC aims to provide uniformity in personal laws concerning marriage, divorce, inheritance, and other personal matters, which are currently governed by distinct religious laws. Its potential to promote gender justice, equality, and secularism is undeniable; however, the resistance it faces from religious and cultural communities cannot be ignored.

One of the central challenges in implementing the UCC lies in balancing the constitutional values of equality and justice against the right to religious freedom. Articles 25 and 26 of the Indian Constitution grant individuals the freedom to practice and propagate their religion, while Article 44 promotes the idea of a UCC as part of the Directive Principles of State Policy. This constitutional tension underscores the complex interplay between personal laws and the state’s endeavor to ensure legal uniformity and social justice.

The judicial pronouncements over the years, particularly in landmark cases such as Shah Bano, Sarla Mudgal, and the Triple Talaq case, have highlighted the need for a UCC to protect the rights of individuals—especially women—while curbing religious practices that perpetuate gender discrimination. These cases also reignited debates on the UCC’s role in promoting national integration and simplifying India’s legal system. However, political sensitivities, concerns over minority rights, and fears of cultural erosion have hindered progress.

In considering the way forward, a gradual approach to UCC implementation seems most pragmatic. Reforms in existing personal laws, increased reliance on secular laws such as the Special Marriage Act, and codification of personal laws that ensure gender equality could help ease the transition. Public awareness and dialogue among religious and civil society leaders are crucial in fostering a broader consensus.

Ultimately, the implementation of a UCC in India requires careful consideration of both legal uniformity and cultural diversity. It demands a nuanced and inclusive approach that respects the religious and cultural rights of minorities while advancing the principles of equality and justice. The UCC remains an important goal for India’s modern legal system, but its realization hinges on achieving a balanced, consensual reform that upholds both individual rights and cultural integrity.

[1] AIR 1985 SUPREME COURT 945

[2]1995 SCC (3) 635

[3] AIR 2017 SC 4609