Rohit Bhanja Chowdhury explores the topic of Uniform Civil Code and answers important questions about the need for a Uniform Civil Code in India
Article 44 of the Indian Constitution with the vision of “One Country, One Law”- under the header of DPSP (Directive Principles of State Policy), directs the states for providing one civil law for the entire country, surpassing as well as subsuming, all religious and personal laws of different communities related to marriage, divorce, inheritance, adoption, under Uniform Civil Code paradigm. Though Art 37 to Art 51 of DPSP is non-justiciable, but the principles laid down in Part 4 of the Indian Constitution, according to Dr B.R. Ambedkar, are fundamental in governance.
The debate around the Uniform Civil Code dates to Colonial India with the Lex Loci Report, October 1840, which stressed the urgency and gravity of uniformity in the codification of Indian laws related to crimes, contract, and evidence, along with the recommendation of partition of religious personal laws from such codification. Another document named, The Queen’s 1859 Proclamation that augmented the earlier report and strengthen the promise of absolute non-interference in religious matters.
However, Indian Laws follows a Uniform code in most Civil matters such as-
• Civil Procedure Code,
• Transfer of Property Act 1882
• Indian Contract Act 1872 etc.
In the post-colonial era, Indian visionary politicians like Pandit Nehru and Dr Ambedkar had pushed for a UCC, but the opposition from religious fundamentalists and lack of aware masses led to the inclusion of UCC in the non-enforceable section of the Indian Constitution.
The codification of Hindu personal laws or The Hindu Code Bill, was drafted by Dr Ambedkar, legalising divorce, opposing polygamy, giving inheritance rights to daughters, but the opposition led the bill to disintegrate into four different laws.
The courts have been the custodian of Indian Constitution and often in their judgement related to cases of personal laws, have urged the government to move towards a UCC. Landmark judgements in this regard are-
• The Shah Bano Case (1985) dealing with Triple Talaq under Islamic Law
• Daniel Latifi Case which dealt with ‘Iddat’ or provisions of maintenance for a divorced Muslim woman
• Sarla Mudgal Case (1995) dealing with issues of bigamy
The Centre, States, and Courts have argued that practices like triple talaq and polygamy directly infringe the right of a woman to a life of dignity and hence question the outreach of constitutional protection for those religious practices, which violates the Fundamental Rights.
The only Indian state to implement a UCC in the form of common family law, is Goa, along with pre-existing Portuguese Civil Code of the 19th Century in the state. It is necessary to experiment with UCC on a micro-level, due to its volatile nature, progressiveness, and the religious fanaticism, that runs in the Indian consciousness, which will oppose the codification and generalization of Civil and personal laws, respectively.
Features of the Goa Civil Code-
• Equal division of property and income between husband and wife and among children
• Compulsory registration for birth, marriage, and death
• Several provisions relating to divorce, such as entitlement of half the property
• Muslims, whose marriage is registered in Goa, is barred from polygamy and triple talaq’
• Parents cannot disinherit their children entirely and must secure half of the property to them.
UCC is not the destination but the journey, and rightly so, it is a journey of a unified utopian India with integration and assimilation of all in one. India prides on her diversity of religion, customs, and practices. UCC will create a literal picture of Unity in Diversity, which is the base mantra of the world’s largest democracy.
UCC will be a death blow to the exploitations of Vote bank politics, identity politics, and partisan politicians. It will also help to eradicate the alternate judicial system under personal laws which functions with archaic values. A sign of a modern and progressive nation is in its Unity of Consciousness. With the initiation of UCC, India will finally be able to crack down caste and religious politics, culminating in a vibrant egalitarian society concentrating on growth and security. UCC can be the ‘leap of faith’ for India to finally metamorphosize into a developed nation. It will be a progressive step towards women’s empowerment and endorsing women’s rights. Religious laws, irrespective of associated communities, are misogynistic and ancient, which more often results in the subjugation of women and crediting them as a subservient or an ‘other factor’ in the society.
Equality will be epitomised by the implementation of UCC. Every law relating to marriage, family, land, etc should be equal for all Indians. Indian secularism is often into a debate, for it being biased and short-sighted. A UCC will the promote equality irrespective of religion under a national code of conduct which will augment the already existing Freedom of religion (Art 25 & Art 26), contrary to the popular belief, of UCC being anti-religion. Change is the supreme law of nature and hence these personal laws formulated in a particular spatio-temporal context need up-gradation and assimilation into a larger stream of unified progressive national consciousness. Hence with all the above arguments, it is safe to infer that codification and unification of these variegated personal laws will create a coherent legal system that will increase the efficiency of the judiciary.
By the above synopsis, it is safe to conclude that India is in a dire need of Uniform Civil Code as propagated by the highest judiciary.
Nevertheless, the question remains- Is UCC a reality in the Indian Context?
Well, to devise and implement uniform civil code, which will affect the society in and out and to some extent alter its existing character, UCC is to face several challenges-
• One of the most formidable and tedious tasks, as to set rules that will govern all communities, govt. must take into concern the vast range of interests and sentiments of Indian society
• Culture, religion, and custom form the alternate holy triangle that is the structural support of Indian society. Customs and personal laws are amalgamation of history, individualism, community aspirations, culture, and religions. Hence, to target the very structure, govt. will need microscopic investigation, research, and analysis.
• Misinformation regarding UCC must be tackled, as conspiracies born out of UCC are affecting the minorities and pushing them to believe that it is a majoritarian way of subverting minorities and ‘hinduising’ them further.
• Lack of political will due to UCC’s sensitive and complex nature
In order to promote the spirit of uniformity of laws and accomplish objectives enshrined in Art 44, the following considerations are vital-
• Progressiveness and a broad-minded outlook should percolate in society, supplemented by education, awareness, and sensitization.
• The UCC like the Constitution should reflect the aspiration and interest of 1.38 billion Indians
• Due to its sensitive nature, the promulgators of UCC should encourage the initiatives of religious groups and work closely with prominent progressive and liberal religious leaders in order to create a Uniform mindset for the codification
In conclusion, UCC is a promising future of a developed India. Short-term achievements for long-term goals should be the way forward for the implementation of UCC. Government should strive for trust-building, and formulation of a common cause with social reformers rather than religious conservatives. The implementation should be step-by-step resulting in a coalition of national identity and aspiration. It is the need of the hour to codify personal laws in order to combat the bottlenecks of society such as prejudices, stereotypes, and religious conservatism. The initiation of UCC implementation should be public and not covert. It should follow the ideal procedures to be passed by parliament. There should be detailed risk analysis and aftermath, to tackle any social crack-down, that might result from the implementation. Lastly, the question of UCC is not primarily of minority protection or national identity building, but to treat everyone with dignity and equality, something that personal laws have failed to secure, time and again. Ultimately, Constitution should supersede unaccountable religious personal laws in our vibrant democracy.