BackA detached approach is crucial for a uniform civil code
The rekindled debate over a uniform civil code (UCC) in India has ushered in a slew of concerns that need to be addressed before it is taken up for final consideration
PremiumThe rekindled debate over a uniform civil code (UCC) in India has ushered in a slew of concerns that need to be addressed before it is taken up for final consideration. Since independence, this debate has underscored the complex and sensitive nature of the relationship between religion and law in the country.
The Constitution of India under Article 44 provides for directive action as an endeavour of the state to secure a UCC. The apex court, while pronouncing its verdict in the Sarla Mudgal case (1995), directed the Union government to reflect upon steps taken by it towards securing a UCC.
Presently, all communities are governed by their own personal laws on a range of civil matters. Hindus are governed by the Hindu Marriage Act, Hindu Succession Act, Minority and Guardianship Act, and Adoption and Maintenance Act. On the other hand, Shariah law governs Muslims, the Christian Marriage Act governs Christians and the Special Marriage Act, 1972, can govern all marriages in India regardless of religion.
A UCC envisions an exhaustive and comprehensive statute of personal laws that will govern Indian society uniformly on issues relating to marriage, maintenance, succession, guardianship, adoption and other related matters. It would encourage joint proprietorship over all benefits obtained by spouses and aim to protect vulnerable sections of society as envisaged by Ambedkar. The Supreme Court, in the Shah Bano Begum case (1985), had observed that a UCC shall help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is pertinent to mention that the need for a UCC flows from the very definition of secularism, which in English refers to the separation of church and state. This implies separation of religion and state in the Indian context. Currently, Goa is the only state to have successfully implemented a common code.
The state of Uttarakhand had constituted a five-member committee to prepare a draft proposal in May 2022. More recently, Gujarat followed suit and announced a UCC panel. The Supreme Court has dismissed public-interest litigation challenging the Constitutional validity of UCC panels in these two states. Earlier, in December 2022, the Kerala high court had suggested that the Centre must seriously consider framing a uniform marriage code in order to promote common welfare.
As for Parliament, a private member’s bill introduced in the Rajya Sabha that seeks a UCC proposes the constitution of a national inspection and investigation committee for its preparation and enforcement. However, the choices to be made between legislating common ethics and offering individual religious liberty are fraught with tension.
The apex court, while delivering its judgement in the John Vallamattom case (2003), expressed regret on the lax implementation of a UCC. It noted that a common civil code shall aid national integration by removing contradictions based on ideologies and reiterated the need for a UCC in its triple talaq ruling of 2017.
A peek into the past: The Constituent Assembly was also divided over a UCC. Those who believed that the state and religion were of no concern to each other called for the inclusion of a UCC under fundamental rights. They argued that different personal laws drawn from religious belief would split the state into watertight compartments and result in multiplicity of laws, with the common national good being trumped by narrower community interests. At that time, there were also those who vehemently argued that the individual right to choice of a personal code should be a fundamental one.
Finally, the fundamental rights sub-committee categorized a UCC as a directive principle. They followed Ambedkar’s equal-respect idea of secularism, granting religious liberty to all communities. The expectation was that diverse personal laws would be done away with in due course and a UCC would later be legislated into being with the consent of all stakeholders.
The apprehension of a UCC being a threat to the rich cultural tapestry of India cannot be denied. However, fears might be misplaced, for a UCC shall not prevent anyone from professing their religion or tradition, but shall only demand that we conform with a uniform set of rules in the domains where varied personal laws prevail.
Implemented well, a UCC would promise communal peace and national integration, apart from equal treatment of and rights for women in inheritance and divorce, with consistent marriage and divorce norms, among other benefits. Our myriad civil laws have made justice slow and tedious. A UCC should address all loopholes arising out of variegated personal laws by simplifying the code and offering a coherent legal system.
It is only with a change in the country’s social climate that its elites and statesmen have the space to awaken its masses to the benefits of social reforms. It is rarely riskless. A one-size-fits-all approach may have worked for countries like Italy, the US and UK, but it remains to be seen whether centrist policies like a UCC will work in a country that is as diverse in its practices as India.
The successful enforcement of a UCC may be less of a challenge at this moment than drafting its details. It might help to scrutinize the issue from a detached perspective and address it in a phased manner.
Trisha Shreyashi is an advocate.
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