This article has been written by Shaik Ashfaq pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

Almost every societal and civil conduct of the citizens of India is governed by the same laws except for matters related to marriage, divorce, inheritance, adoption, succession, and guardianship. These family-related matters are specifically covered by the personal laws of each religious community, primarily based on their respective Holy Scriptures, cultures, and customs. Some provisions under these personal laws are accused of being discriminatory against women, against inter-community equality, and far from constitutional values. Due to the aforementioned reasons, time after time the Indian state has been called upon by legislatures, judiciary, and social organisations to implement Article 44 of the Constitution, which states that “The state shall endeavour to secure a uniform civil code throughout the territory of India.” The objective of this provision is to replace the existing personal laws of different communities with a common set of laws to regulate all their family matters. However, the article falls under Part IV of the Constitution, consisting of directive principles of state policy that are non-enforceable by nature.

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It is often argued that in a secular country like India, there is no place for laws based on religion and a uniform civil code is a must to uphold the spirit of secularism. Under this backdrop, the following questions need to be contemplated whether Indian secularism, as it is reflected in the basic structure of the Constitution, demands the imposing of a uniform civil code or does it stand for expression of any form of difference and protection of such difference from an overpowering majority? Does the Indian concept of secularism entail strict separation between state and religion and mutual non-interference? Or is it about securing social justice through reasonable interference without threatening the fundamental right to practice religion and culture? 

Concept of secularism in India

The concept of Indian secularism is not a copy-paste of that which is practiced in Western countries nor is there any straightjacket definition that has been provided anywhere. The term secular was added to the preamble to the constitution through the Forty Second Amendment in 1976 but the essence or basic structure of the constitution has exhibited a secular nature since its adoption. According to scholars like Rajeev Bhargava, secularism in India takes the form of a “principled distance,” thus the non-establishment of any religion as a state religion and the policy of avoiding strict separation between religion and state as followed by the West. While Seval Yildirim has described “Indian secularism as a discourse to reconstruct the political space so that religion and the state can co-exist” Indian secularism is meant to be compatible with religion, and the state is authorised for reasonable interference by virtue of the constitution and for upholding its values. It assures the freedom of any form of difference and ensures that such differences remain unabsorbed under the louder voice of the majority. The Supreme Court in T.M.A. Pai Foundation and Ors. vs. State of Karnataka and Ors. has emphasised that “the essence of secularism in India is recognition and preservation of the different types of people, with diverse language and different beliefs, and placing them together so as to form a whole united India.”

Debate and developments surrounding UCC

Brief background 

Historically, during the Mughal period or under British India and hitherto under the Indian Democratic Republic, family related matters were governed as per the religious sources and customs of the concerned party, whereas criminal law has been applied uniformly to all communities. In Mughal India, ‘mitakshara’ and ‘dayabhaga’ schools were accepted and acted upon as veritable codes of Hindu personal law; for Muslims, sharia law was applied; and for other communities, flexibility as to following their customs was provided. In British India, the mainly Hindu community had seen interference in their customs and religious personal laws after social reformers belonging to the same community pressurised and urged British rulers to safeguard women from the then prevalent social evils; consequently, sati was abolished, the Hindu Widow Remarriage Act, the Caste Disabilities Abolition Act, etc. passed. Legislation concerning Muslim personal laws, such as the Shariah Application Act and the Dissolution of Muslim Marriage Act, was passed. In Independent India, despite political controversies, the Hindu Code Bill has been passed in a piecemeal manner to reform Hindu personal laws and it has brought remarkable changes like the introduction of divorce, the prohibition of bigamy, and joint family property rights to Hindu women. For the Muslim community in Independent India Shah Bano case in the Independent India was significant and in Danial Latifi vs. Union of India, the Supreme Court questioned the constitutional validity of the Muslim women (Protection of Rights on Divorce) Act, 1986 and upheld the judgement of Shah Bano case, which paved the way for the right to maintenance beyond the Iddat period for divorced Muslim women.

Since Independence, social organisations and the judiciary have been highlighting the unjust provisions in all personal laws and through the means of legislation and judiciary, specific practices have been dealt with effectively. The provisions under personal laws continue to be challenged in the courts and through meaningful discourse and diligence, amendments are introduced, unlike creating an atmosphere of fear among minority communities and vowing for forceful implementation of UCC merely for political gain.

Goa Civil Code

The Goa Civil Code, originally known as the Portuguese Civil Code of 1867, is often preached as a potential example of the Uniform Civil Code by its proponents. However, a closer inspection of the code informs us about its own flaws. The marriage laws in the GCC are based on three-tier differentiation; for Catholics who marry under the church, for Catholics who marry outside the church and for non-Catholics. As per Article 1056 of the Code, marriage is regarded as of a contractual nature. Interestingly, for Catholics who marry under the church administration, their divorce related matters are adjudicated by Catholic priests, while Catholics who marry outside the church and non-Catholics are subjected to the jurisdiction of civil courts for the dissolution of their marriage. The Goa Civil Code is not a “uniform” code in the true sense of the term. It is a hybrid legal system that incorporates elements of both Portuguese civil law and Hindu personal law. This hybrid nature of the code has led to inconsistencies and ambiguities in its interpretation and application. For instance, the code contains provisions that are based on the Portuguese concept of community of property between spouses, as well as provisions that recognise the Hindu concept of separate property. This duality has created confusion and uncertainty among legal practitioners and litigants alike. 

The Goa Civil Code is outdated and in need of reform. It has not been substantially amended since its enactment in 1867, and many of its provisions are no longer in keeping with contemporary social and economic realities. For example, the code does not adequately address issues such as domestic violence, child custody, and surrogacy. This lack of modernity makes the code less effective in resolving disputes and protecting the rights of individuals.

The Goa Civil Code is not universally accepted or followed throughout India. It is only applicable in the state of Goa, which has a unique historical and cultural context. The code is not recognised in other states, which have their own civil laws based on local customs and traditions. This lack of uniformity across the country undermines the goal of having a truly “uniform” civil code.

The Code of Gentile Hindu usages and the Customs of Goa, 1880 applies to Hindus, under which Article 3 states that a Hindu husband can perpetrate bigamy in two scenarios; firstly, if his wife has attained the age of 25, during which she has failed to conceive a child and secondly, if the wife attains the age of 30 without having a male child. On the other side, Muslims are not governed under the Shariat Application Act but are subjected to a mixture of the code and parts of traditional Hindu laws. This shows a lack of uniformity in the bill and hints at its lack of secular nature.

Uniform Civil Code of Uttarakhand

The Uttarakhand assembly passed the Uniform Civil Code Bill on February 7; this is the first time in Independent India a UCC bill has been passed. Legal experts comment that the bill is merely an extension of Hindu personal laws to all communities in the state. The bill consists of only 14 new sections from an overall 375 sections and it remains silent on the Hindu undivided family’s exclusive privilege to enjoy certain benefits under the Income Tax Act. Ironically, tribal communities have been excluded from the purview of the UCC.

The progressive elements of Muslim personal law have been deliberately overlooked, and the provision of mehr to a wife by the husband is not extended to other communities nor has the one-third limit on testamentary succession to protect the interests of the heirs been incorporated. It appears that the UCC bill only attempts to obliterate the personal law practices of minority communities. 

The introduction of the UCC in Uttarakhand has sparked widespread discussion and debate, with legal experts and social commentators offering their perspectives. Some have lauded the bill as a progressive move that will promote gender equality and individual rights, while others have expressed concerns about the potential infringement of religious freedom and cultural identity.

Central to the UCC debate is the question of whether a uniform set of civil laws can effectively accommodate the diverse personal laws and customs of different religious communities in India. Critics argue that the UCC may erode the distinct identities and traditions of various religious groups, leading to a homogenization of legal practices. Advocates of the UCC, on the other hand, maintain that it is necessary to ensure equal treatment under the law and to eliminate discriminatory practices based on religion.

The Uttarakhand UCC Bill is a comprehensive piece of legislation that covers a wide range of personal matters, including marriage, divorce, inheritance, and adoption. It seeks to replace the existing personal laws of different religious communities with a common set of civil laws that will apply to all citizens of the state. The bill has been drafted with the stated objective of promoting gender equality, protecting the rights of women and children, and ensuring equal access to justice for all.

However, legal experts have pointed out that the Uttarakhand UCC Bill is largely based on Hindu personal laws, which raises concerns about the potential marginalisation of other religious communities. They argue that a truly uniform civil code should be drafted after extensive consultation with all stakeholders, including religious leaders, legal experts, and representatives of different communities, to ensure that the rights and sensibilities of all citizens are respected.

The passage of the UCC Bill in Uttarakhand is a significant development in the ongoing debate over the implementation of a uniform civil code in India. While the bill has been welcomed by some as a step toward achieving legal equality and religious neutrality, it has also raised concerns about the potential impact on religious freedom and cultural diversity. As the debate continues, it is crucial for policymakers to engage in a comprehensive and inclusive process to ensure that any future UCC legislation is just, equitable, and respectful of the rights of all citizens.

UCC and national integration

The proponents of the UCC postulate that having a Uniform Civil Code will result in national integration. Religious personal laws are the direct by-product of different cultures of which language and ethnicity are integral parts and whose sole basis the boundary lines of some states were drawn. Not to forget the tribalism and customs so prevalent in northeastern states, which led to the authorization of some districts, such as Garo Hills, Naga Hills and others, as autonomous regions by virtue of the 6th schedule of the Constitution, which means their district councils have legislative competence to administer civil and criminal justice as per their customary law. Opponents of the UCC, however, argue that such a code would infringe on the religious freedom of minorities. They believe that individuals should be free to follow their own religious laws in matters of personal status, such as marriage, divorce, and inheritance. They also argue that a UCC could lead to the erosion of cultural diversity. The debate over the UCC has been going on for decades. There have been several attempts to enact a UCC, but none have been successful. The issue is complex and there are strong arguments on both sides. Ultimately, the decision of whether or not to adopt a UCC is a matter of political will.

When people’s identity is informed by their cultural differences and customary practices, then what sort of national integration is assumed by bringing UCC that blatantly encroaches upon their identity? According to Paras Diwan, the UCC has nothing to do with national integration and writes, “Today in our country, we have one family code for the followers of four religions, viz., Hinduism, Jainism, Sikhism and Buddhism. Yet it has not led to a spurt of inter-religious marriages among the followers of these four religions. Rather, inter–religious marriages continue to be as few as they were before the adoption of one code for them. It is also evident that it has not helped in the integration, either on the national or regional level, of the followers of these four religions.” Thus, the assumption of national integration as a corollary of having UCC lacks consideration of India’s rich and diverse cultural practices. In addition to the religious and cultural arguments, there are also economic arguments for and against a UCC. Proponents of a UCC argue that it would create a more efficient and predictable legal system, which would be beneficial for businesses. Opponents argue that a UCC would increase the cost of doing business, particularly for small businesses. The economic arguments for and against a UCC are complex and there is no easy answer. However, it is clear that the issue of a UCC is not just a religious or cultural one. It is also an economic issue with real-world consequences for businesses and individuals alike. 

UCC and gender justice

The expression ‘Gender justice’ implies that men and women ought to enjoy equal rights and should not be discriminated against because of their gender differences. However, supporting reforms from within and a piecemeal approach through judicial recourse is far more relevant and meaningful to achieving the aim than imposing UCC. Proponents of gender justice argue that the Uniform Civil Code (UCC) is a crucial step towards achieving this goal in personal laws. The UCC aims to establish a common set of civil laws that apply equally to all citizens, regardless of their religion or personal beliefs. By doing so, it seeks to eliminate discriminatory provisions found in various personal laws that perpetuate gender inequality.

For example, in matters of marriage, divorce, inheritance, and child custody, many personal laws in India are based on religious tenets that often favour men over women. The UCC, on the other hand, would provide a uniform framework that ensures equal rights for both men and women in these personal matters.

Additionally, the UCC would address issues such as polygamy, which is permitted under certain personal laws but violates the principle of gender equality. It would also establish a minimum age for marriage, protecting young girls from being forced into early marriages.

The implementation of the UCC would have a transformative impact on gender justice in India. It would create a level playing field for men and women, enabling them to exercise their rights and freedoms equally. Moreover, it would contribute to a more inclusive and just society where all individuals are treated with dignity and respect, regardless of their gender. However, the enactment of the UCC faces certain challenges. There is resistance from certain religious communities who fear that the UCC will undermine their cultural and religious practices. Political considerations and the need to build consensus among various stakeholders also complicate the process. Despite these challenges, the pursuit of gender justice through the UCC remains a vital goal. It is essential for India to move towards a more equitable and just society, where all citizens, irrespective of their gender, have equal rights and opportunities. For instance, there are two landmark judgements in Muslim personal law first being Danial Latifi vs. Union of India, in which the apex court upheld the Shah Bano case to extend the right of maintenance to divorced Muslim women beyond the iddat period and the second being the Shayara Bano case, in which the Supreme Court banned the practice of triple talaq. The gradual changes within Christian family law are also a shining example. Most importantly, the 21st Law Commission not only said the UCC is “neither necessary nor desirable” but also supported ending gender discrimination and removing inequality: “This Commission has therefore dealt with discriminatory laws rather than providing a uniform civil code, which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination but is indicative of a robust democracy.” The commission also suggests that religious identity is also important to women, and personal laws along with language, culture, etc. often constitute a part of this identity and as an expression of ‘freedom of religion’. Flavia Agnes, a prominent lawyer and women’s rights activist, while opposing the ‘one nation, one law’ slogan, said, “The cardinal question was to choose between imposing uniformity and ensuring gender justice and if the goal is to achieve gender justice, then the need of the hour is to go back to the 21st Law commission report and see where changes can happen.” 

Conclusion

India is a diverse country and the plurality of laws is a logical corollary of that fact. The Goa civil code and UCC of Uttarakhand are classical examples of how minorities in these codes are subjected to the personal laws of other communities in the name of uniformity and gender justice, while the uniformity of laws is not mandatory to achieve the goal of gender justice. Indian secularism advocates for the preservation of difference and addressing social justice rather than the plurality of laws. Thus, as the 21st Law Commission remarkably stated, “thus a ‘united’ nation need not necessarily have ‘uniformity’;’ it is making diversity reconcile with certain universal and indisputable arguments on human rights.”

References

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