Uniform Civil Code: Legal Uniformity or Cultural Decay?
“I do not understand why religion should be given this vast, expansive jurisdiction, to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We have this liberty to reform our social system, which is so full of inequities, discrimination and other things, which conflict with our fundamental rights.”
- Dr. B. R. Ambedkar
Introduction
Personal Laws of various communities, that cover marriage, divorce, inheritance, adoption, and alimony, are governed by their religious scriptures or codified laws based on certain interpretations of scriptures and other texts. Articles 25 through 28 of the Indian Constitution guarantee freedom of religion to the citizens of India, while Article 44 encourages the state to implement a Uniform Civil Code applicable to all citizens. The Uniform Civil Code seeks to establish laws which apply to all citizens equally, regardless of their religion.
It aims to replace various personal laws which are inconsistent with each other. These include but are not limited to the Hindu Marriage Act, Hindu Succession Act, and Indian Divorce Act, as well as non-codified laws such as Sharia. The debate surrounding its implementation is centred around concerns over religious homogeneity and the potential to introduce legal uniformity to foster national integration. This article aims to address the concerns related to Personal Law and the implementation of the Uniform Civil Code.
Personal Law
Personal laws remain specific to the religious communities that they serve. They are historically rooted in the traditions of religious communities, but they have evolved over time, with significant reforms introduced by laws such as the Hindu Code Bill.
Personal Law is not explicitly mentioned as a ‘law’ under Article 13(1), but they are considered customary according to the provisions of the constitution and are subject to fundamental rights.
India has different personal laws for Hindus (including Sikhs, Jains, and Buddhists), Muslims, Christians, and Parsis. For example, the Hindu Adoptions and Maintenance Act of 1956 applies to Hindus, while the Muslim Personal Law Application Act of 1937 applies to Muslims. The procedures for such laws are interpreted within the context of the religious practices and traditions of the respective religions. A few examples of personal laws include the Hindu Minority and Guardianship Act, the Indian Christian Marriage Act and the Parsi Marriage and Divorce Act.
Personal laws date to the pre-colonial era. Even after 77 years of independence, personal laws have not been completely reformed to ensure equality and non-discrimination. While the laws may be different in writing, concerns have been raised about their potential discriminatory effects, especially on the status of women, which is argued to violate Article 14 of the Constitution’s principles of equality. There are differing views on the need for the codification and reform of personal laws.
Uniform Civil Code (UCC)
The Uniform Civil Code implements laws to ensure consistency and equality in the governance of civil matters relevant to the people and the state. Article 44 of the Constitution states that India shall endeavour to secure a uniform civil code for its citizens throughout its territory. However, this article comes under the directive principles of state policy, meaning that it is not enforceable by any court of law. The Uniform Civil Code was meant to advocate for national unity, promote harmony in the country, and most importantly, transform the country into a secular one as stated in the Constitution. In the context of India, secularism differs from its Western counterpart, in that it embraces a principle of equal respect for all religions rather than a separation between religion and state. The Constitution mandates this principle ensuring freedom of religion under Article 22, equality before the law under Article 14 and the prohibition of discrimination on the grounds of religion under Article 15. The UCC aims to reflect these values by creating a unified legal framework that looks beyond religious distinctions while respecting India’s culture.
However, the UCC was a controversial proposal even at the time of the constituent assembly. Muslim leaders like Ismail Sahab and Pocker Sahib Bahadur had argued that it violated religious freedom guaranteed by Article 25 of the Constitution and would cause disharmony among the Indian people, going so far as to attack the Constituent Assembly:
“Who are the members of this Constituent Assembly who are contemplating interfering with the religious rights and practices? Were they returned there on the issue as to whether they have got this right or not?” - Pocker Sahib Bahadur on the Constituent Assembly Debates on 23rd November 1948 The UCC could risk undermining the pluralistic nature of India leading to cultural homogeneity. Concerns have arisen regarding the UCC leading to a sense of marginalisation in minority communities. Furthermore, there have been speculations by political commentators that its implementation may also infringe on India’s system of shared power between the state and central governments, as the personal laws, which it aims to generalise, fall under the Concurrent List of the Constitution, giving both the state and central governments the freedom to legislate on them. This could centralise legislative power to the Union, potentially undermining the states’
authority in this area. The Goa family law system, for example, based on the 1867 Portuguese Civil Code, is often cited as precedent for UCC, but it also highlights the challenges in implementing a single code across diverse regions, as it requires balancing uniformity with cultural autonomy. Critics have argued that a centrally imposed UCC might disrupt this balance, impinging on the legislative powers of states Conclusion Personal laws discriminate between individuals of different religions and, in certain cases, allow for gender-based discrimination to take place. Under the Hindu Succession Act, if a married woman dies childless, her property is inherited by the husband’s heirs, such as his children, parents, siblings, or extended family members, rather than her own. The Hindu Minority and Guardianship Act gives the father the status of the natural guardian in the case of a legitimate child, ignoring the need for equality of rights of guardianship between both parents. Sharia Law allows a Muslim man to have up to four wives. Nikah Halala does not allow a Muslim woman to remarry the husband who has divorced her unless she marries another man first.
These laws, which are rooted in certain interpretations of religious customs, reinforce gender inequality.
We must examine Articles 25 through 28 which state that religious freedom is subject to fundamental rights and the treatment of personal laws, which are often considered outside the jurisdiction of these rights. Reforming personal laws could create a more equitable legal framework, paving the way for a truly uniform civil code. However, critics argue that such reforms must balance the need for uniformity with India’s cultural heritage, stating that hastily imposing changes could alienate communities.
The outcomes of Uttarakhand and Goa’s adoption of the Uniform Civil Code should be analysed by the State to develop strategic and sustainable approaches for its nationwide adoption. Experts believe that its introduction should include constitutional safeguards to protect religious practices and the rights of marginalised communities. The UCC’s adoption could be rolled out over a period of time to be less disruptive. The initial phase may begin with areas of major agreement, such as inheritance rights. Whereas the following phases could address more contentious issues. This will allow communities to better adapt to the changing legal system. They further believe that to preserve India’s cultural integrity whilst aiming for uniformity, communities should be able to request exemptions for certain practices that do not conflict with fundamental rights.
Mohd. Ahmed Khan v. Shah Bano Begum (1985) highlighted the need for a just interpretation of personal laws when a divorced Muslim woman sought maintenance.
The Salra Mudgal case of 1995 dealt with issues of polygamy and conversion, raising questions about the misuse of personal laws for circumventing existing laws, emphasising a need for consistent and fair application of legal standards. These cases collectively highlight that achieving justice requires a nuanced approach that respects individual rights, upholds constitutional values, and ensures fairness for all communities, rather than focusing solely on uniformity.
A just civil code is more important than a uniform civil code.
Citations
1. The Sunday Guardian Live. (2016, July 18). ‘Uniform civil code is not a tool to undermine religion’.
https://sundayguardianlive.com/investigation/5715-uniform-civil-code-not-t ool-undermine-religion 2. Madhumita Chakraborty. (n.d.). ROLE OF JUDICIARY AND MUSLIM PERSONAL LAW. Journal on Contemporary Issues of Law.
https://jcil.lsyndicate.com/wp-content/uploads/2023/06/Madhumita.pdf 3. Harnaman Singjh. (n.d.). An insight into the pseudo-secularism in India. Legal Service India - Law, Lawyers and Legal Resources.
https://www.legalserviceindia.com/legal/article-8060-an-insight-into-the-p seudo-secularism-in-india.html 4. John A. Banningan. (1952). The Hindu Code Bill. Institute of Pacific Relations.
5. Pew Research Center. (2021, June 29). Key findings about religion in India.
https://www.pewresearch.org/short-reads/2021/06/29/key-findings-about-re ligion-in-india/ 6. Humboldt-Universität zu Berlin. (n.d.). Religion-Based Personal Laws in India from a Women’s Rights Perspective: Context and some Recent Publications. Herzlich willkommen an der Juristischen Fakultät! — Juristische Fakultät.
https://www.rewi.hu-berlin.de/de/lf/ls/dnn/staff/th/religion-based-personallaws- in-india-from-a-womens-rights-perspective-context-and-some-rece nt-publications 7. Kanoon. (1948, November 23). Constituent Assembly Debates On 23 November 1948. https://indiankanoon.org/doc/870715/ 8. UCC-Part-1-Constitutional History. (n.d.). Centre for Law & Policy Research.
https://clpr.org.in/wp-content/uploads/2017/11/UCC-Part-1-Constitutional-H istory.pdf 9. Agrawal, A. (2024, April 15). Uniform civil code: Towards gender equality. TSCLD.
https://www.tscld.com/uniform-civil-code-towards-gender-justice 10. Kanoon. (1985, April 23). Mohd. Ahmed Khan vs Shah Bano Begum and Ors on 23 April, 1985. Indian Kanoon - Search engine for Indian Law.
