India takes its pride in the fact that it is the embodiment of different religions, cultures, customs and languages and to preserve this heterogeneity, India has different laws for different religious groups when it comes to their personal matters viz. inheritance, succession, marriage, divorce, adoption and maintenance which is based on their religious scriptures and customs. Whereas, Uniform Civil Code, arguably, stands for a common set of laws which tends to govern every citizen equally by replacing personal laws.
At this juncture let us first look into the language used in Article 44 of the Indian Constitution which brings forth the idea of Uniform Civil Code which reads “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.” The framers of the constitution were very particular about the words that were to be used. They thought it more prudent to use the word Uniform instead of Common. Would the use of Common in place of Uniform have made any difference? It certainly would have left certain impact on the issue at hand because common and uniform are two totally different words where common means one and same in ‘all circumstances’ and uniform means same in ‘similar circumstances’. Further, Code can also mean a set of more than one law as is the case with Hindu Code Bill which comprises of Hindu Marriage Act, 1955, Hindu Succession Act, 1996, Hindu Adoption and Maintenance Act, 1956 and Hindu Minority and Guardianship Act 1956.
So it can be said that the most prevalent notion of Uniform Civil Code which is the clamour for one civil code devoid of all the personal laws for the whole country is controversial and debateable with the other notion which is that there should be uniformity in the civil laws of a particular community throughout the country. Meaning there by that the Muslims throughout the Indian territory should be governed by one single civil code and so should the Hindus and all the other communities. The second notion which talks of uniformity within the communities and not uniformity between communities, is promulgated by the believers of the fact that at least in India the clamour for One Nation One Law is futile which can’t be achieved because of the dense pluralistic society that we have in this country. The idea of one nation one law falls flat because despite having codified laws such as IPC and CrPC the different states have amended the laws according to their own whim. The recently amended Motor Vehicle Act which have heavily raised the penalty for different traffic rule violations have not been implemented uniformly throughout the country. This proves how difficult it is to think of uniformity in India.
The debate regarding the UCC in India can be traced back to 1840 when Lex Loci Report, which played an important role towards the codification of Indian laws relating to crimes, evidences and contract, denied to recommend the codification of Uniform law for the religious matters of Hindus and Muslims and allowed them to practice their own religious scriptures and customs which was also a way to win over the confidence of the People of India for the smooth functioning of the British administration. Moreover, The Queen’s 1859 proclamation also promised absolute non interference in the religious affairs of the people.
In the constituent assembly also where there were intensive debates over uniform civil code it was decided that the time was not ripe to bring forth a Uniform Civil Code for the whole country and it was finally decided that the matter be listed in the chapter of Directive Principles For State Policy and consequently made the state liable, by way of Article 37 which enunciates “……the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws” ,for its implementation at a time when the country was ready for such a law.
Judicial Activism and UCC
The clamour for a Uniform Civil code gained momentum after the SC in its various judgements stressed on the need for a Uniform Civil Code. The series of obiter dicta started in the Shah Bano case in 1985 when the Supreme Court for the very first time directed the Parliament for the enactment of Uniform Civil Code. The then Chief Justice of India YV Chandrachud observed that “A common civil code will help the cause of national integration by removing desperate loyalties to law which having conflicting ideologies.”
In Sarla Mudgal Case the SC asked the Govt. of India to frame Uniform Civil Code and report to it on the steps taken to achieve such code. The SC went on to opine that “Those who preferred to remain in India after the partition fully knew that the Indian leaders didn’t believe in two-nation or three-nation theory and in the Indian republic there was to be only one nation and no community could claim to remain a separate entity on the basis of religion.” Here it is important to note that Part IV of the Indian Constitution which contains Article 44 has been kept out of reach of any judicial intervention that’s to say that “ the provisions contained in this Part shall not be enforceable any court…”
In Jose Paulo Countinho case the SC yet again refreshed the debate around UCC by observing Goa as a “a shinning example of an Indian State which has a uniform civil code applicable to all…”
The SC reiterated its penchant for UCC in Jordan Diengdeh Case when a couple belonging to two different religions knocked on its door for divorce.
In Ahmedabad Women’s Action Group the court took a very different view and said that the SC was not empowered to entertain matters regarding UCC: “…these Writ Petitions do not deserve disposal on merits inasmuch as the arguments advanced before us wholly involve issues of State policies which the court will not ordinarily have any concern.” Justice Venkataswami also mentioned that “… the remedy lies somewhere else and not by knocking at the doors of the courts.” This statement it can be said that rebuked all the previous observations of the SC where in earlier cases the court had directed the Parliamnet regarding the matters pertaining to UCC. The Court also observed that religions with different historical background can be categorised as different classes: “It is historic fact that both Muslims and Hindus in this country have thier respective religious texts and which embody their own distinctive evolution and which are coloured by their own distinctive backgrounds.”
The Law Commission’s Report (2018) also noted that “ a Uniform Civil Code is neither necessary nor desirable at this stage.”
Uniform civil code can be very instrumental in strengthening fraternity and unity among different religious groups which is very important to strengthen India as a whole. It can also play a very important in furthering the cause of gender equality and communal harmony. Not having a Uniform Civil Code and the prevalence of the Personal laws have tempered the real essence of Article 14, Article 15 and Article 21. Article 14 seeks to provide equality to every person but the discriminatory nature of Personal laws against women in particular have negated the essence of Article 14 same is the case with Article 15 which seeks to prohibit discrimination on ground of religion, race, caste, sex or place of birth. The ambit of Article 21, which talks of personal liberty, is also restricted.
Despite having such devastating effect on the essence of the Constitution of India the voices raised for bringing in the UCC have not had much impact and are in fact very ineffective because those who oppose it have some valid arguments to their credit. They fear that those who endeavour for the implementation of UCC are in one way or the other are of the view that their religious customs and rituals should prevail over those who are minorities in this nation. Moreover Article 25 and Article 26 make the case of not imposing UCC more concrete. Article 25 guarantees the freedom to freely practice religion whereas Article 26 gives the freedom to manage religious affairs. They also believe that implementation of UCC will lead to homogenisation of culture which is a threat to the ethos of this country which is Unity in Diversity.
ABOUT THE AUTHOR
Fahad Ghani, Student, Faculty of Law, Aligarh Muslim University, Aligarh