Civil Code: India's Uniform Law And The Constitution

The Uniform Civil Code (UCC) is a proposal in India to implement a set of laws regarding personal matters such as marriage, divorce, inheritance, and adoption, which would apply equally to all citizens, regardless of their religion, community, race, sex, caste, or gender. The term 'Uniform Civil Code' is explicitly mentioned in Part 4, Article 44 of the Indian Constitution, which states that The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The debate around implementing a UCC in India has been ongoing for decades and is one of the most controversial issues in twenty-first-century Indian politics, with supporters arguing for national integration, gender justice, and equality, and opponents expressing concerns about religious freedom and cultural identity.

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History of the Uniform Civil Code in India

The history of the Uniform Civil Code (UCC) in India is a long and complex one, with the debate around it being deeply rooted in the country's historical, cultural, and political landscape. The UCC has been a topic of discussion and debate for over a century, with the first calls for a uniform civil code emerging during the British colonial rule in India.

During the colonial period, the British separated personal laws, which were governed by religious scriptures and customs of various communities, from criminal laws. The Lex Loci Report of October 1840 emphasised the importance of uniformity in criminal, evidentiary, and contract law while recommending that the personal laws of Hindus and Muslims be kept separate. The Queen's 1859 Proclamation promised non-interference in religious matters, further cementing this separation.

The UCC emerged as a crucial topic in Indian politics following the Shah Bano case in 1985, which brought to light the discrepancies between Muslim personal law and the All India Criminal Code regarding maintenance for wives, children, and parents. The Supreme Court ruled in favour of Bano, recommending the establishment of a uniform civil code. This decision sparked nationwide discussions and led to the passing of the Muslim Women's (Right to Protection on Divorce) Act in 1986, which was later challenged on grounds of violating the right to equality and life.

The late 1980s and early 1990s witnessed heightened religious tensions with the rise of the Vishwa Hindu Parishad (VHP) and the Babri Masjid demolition. These events influenced the UCC debate, with various interest groups calling for uniformity in laws, especially regarding religious practices and places of worship.

The UCC has been included in the electoral manifestos of the Bharatiya Janata Party (BJP) in 1998 and 2019, reflecting their longstanding agenda to implement the UCC and abolish personal laws concerning marriage, divorce, and succession. However, the UCC has faced opposition from various parties, including BJP's allies, who argue that it goes against the "idea of India" and will impact the special privileges of tribal communities.

In 2023, Justice Krishna Murari of the Supreme Court of India emphasised the need for extensive deliberations and consultations with the general public before implementing the UCC. In 2024, Uttarakhand became the first state in India to implement the UCC, excluding Scheduled Tribes and protected communities. While the UCC in Uttarakhand was described as a “historic moment” by the state's Chief Minister, it has also faced criticism on technical grounds.

Pros and cons of the Uniform Civil Code

The Uniform Civil Code (UCC) is a proposal in India to formulate and implement personal laws that apply equally to all citizens, regardless of their religion, gender, or sexual orientation. The term 'Uniform Civil Code' is explicitly mentioned in Part 4, Article 44 of the Indian Constitution, which states:

> "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

The UCC has been a topic of heated debate since India's independence, with proponents and opponents presenting various arguments. Here are some of the pros and cons of implementing the UCC in India:

Pros of the Uniform Civil Code:

• Equality and Justice: One of the primary objectives of the UCC is to ensure equality and justice for all citizens, regardless of their religion or gender. By implementing a common set of personal laws, the UCC aims to eliminate discrimination and promote fairness. This is particularly relevant in matters of marriage, divorce, inheritance, and adoption, where different religious communities currently follow separate laws, leading to unequal treatment, especially for women.
• National Integration and Unity: Proponents of the UCC argue that a uniform set of laws will foster national integration and unity by treating all citizens equally before the law. It will help uphold the secular nature of the Indian state by separating religion from law and treating all religions equally without favouring any particular one.
• Women's Rights and Gender Equality: Supporters of the UCC contend that it is necessary to secure women's rights and promote gender equality. They argue that existing personal laws, based on religious scriptures, are often discriminatory towards women and that a uniform code will bring both men and women to par.
• Modern Social Attitudes: With 55% of India's population below 25, the country has a large proportion of individuals with modern social attitudes shaped by universal principles of equality, humanity, and modernity. A UCC would align with their aspirations for a society that sheds identity based on religion and leverages the potential of its youth for nation-building.

Cons of the Uniform Civil Code:

• Interference with Religious Practices: Opponents of the UCC argue that implementing a uniform code might interfere with religious practices and freedoms guaranteed by Articles 25-28 of the Indian Constitution. They contend that personal laws based on religious scriptures should be respected and that uniformity may not be effective if imposed on communities that are not ready for such reforms.
• Diversity and Religious Laws: India's diversity and the existence of various religious laws that differ sect-wise, by community, caste, and region, pose significant challenges to implementing a UCC. Some argue that a uniform code could create disharmony within religious communities and that personal laws should be kept outside the scope of common civil code.
• Local Customs and Traditions: Critics of the UCC, including NGOs and organisations, warn that implementing a uniform code will erode local customs and traditions, especially of tribal communities. They argue that personal laws are integral to the cultural fabric of these communities and that uniformity should not be enforced at the cost of their heritage.
• Political Opposition: The proposal for a UCC has faced opposition from various political parties, ranging from opposition parties to allies of the BJP, which included it in its manifesto for the 2024 Indian general election. The loss of their two-thirds majority in that election further hindered their ability to amend the Constitution and implement the UCC.

The Uniform Civil Code and gender equality

The Uniform Civil Code (UCC) is a proposal in India to formulate and implement personal laws that apply equally to all citizens, regardless of their religion. The term 'Uniform Civil Code' is explicitly mentioned in Part 4, Article 44 of the Indian Constitution, which states:

> "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

Currently, personal laws of various communities in India are governed by their religious scriptures. These laws cover marriage, divorce, inheritance, adoption and maintenance. While articles 25-28 of the Indian Constitution guarantee religious freedom to citizens and allow religious groups to maintain their own affairs, Article 44 expects the Indian state to apply directive principles and common law uniformly to all citizens when formulating national policies.

The debate for a UCC has a long history in India, dating back to the colonial period. The first petition was filed in 2019 to seek the framing of a UCC to promote national integration and gender justice, equality, and dignity of women. The UCC has also been included in the BJP's manifesto for the 2024 Indian general election. However, it cannot be implemented in the 18th Lok Sabha as the BJP lost its majority in that election.

The UCC is seen as a possible tool for attaining gender equity in India's multicultural society. It is argued that the implementation of a UCC will grant an equal set of personal laws to all, ending the politicisation of issues of discrimination or concessions based on religious personal laws. The existing personal laws of most religions are based on upper-class patriarchal notions of society, and the codification and implementation of a UCC will promote gender equality by destroying the sanctity of the patriarchal orthodox.

However, the UCC has faced opposition from various political parties, NGOs, and organisations, especially due to India's diversity and differing religious laws. Some argue that the UCC will erode local customs and traditions of tribes. Others claim that it violates freedom of religion and will create disharmony within religious communities.

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The Uniform Civil Code in Goa

The Uniform Civil Code (UCC) is a proposal in India to formulate and implement personal laws equally for all citizens, regardless of their religion. The UCC is mentioned in Part 4, Article 44 of the Indian Constitution, which states: "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." The debate around the UCC and its implementation has been ongoing since the colonial period in India, with some arguing that it is necessary for national integration, gender justice, equality, and dignity of women.

Goa is the only Indian state that has implemented a UCC in the form of common family law. The Goa Civil Code, also known as the Goa Family Law, is based on the Portuguese Civil Code of 1867, which was introduced in Goa in 1870. When Goa merged with the Indian Union in 1961, the Portuguese Civil Code was retained and was not replaced by the new Portuguese Civil Code of 1966. The Goa, Daman, and Diu Administration Act of 1962 allowed Goa to keep its colonial-era civil code.

The Goa Civil Code treats marriage as a civil contract between spouses, resulting in a communion of assets where each spouse is a co-owner of the other's properties and assets. In the event of a divorce, the law provides for an equal division of income and property between the husband and wife, as well as between any children, regardless of gender. However, antenuptial agreements are allowed, which may stipulate a different division of assets in the case of a divorce. Additionally, the law mandates the compulsory registration of every birth, marriage, and death.

While the Goa Civil Code applies uniformly to all citizens in Goa, it does have specific provisions for certain communities. For example, Hindu men are permitted to practice bigamy under specific circumstances, while bigamy is prohibited for other communities. Roman Catholics can solemnize their marriages in church after obtaining a No Objection Certificate from the Civil Registrar, while other communities must undergo civil registration to have their marriages recognized legally. Furthermore, Catholics who marry in the church are exempt from the divorce provisions under the civil law, and Hindus can only obtain a divorce on the grounds of adultery by the wife.

The future of the Uniform Civil Code

Historically, the debate around the UCC has been ongoing since the colonial period, with the first petition filed in 2019 to promote national integration, gender justice, equality, and dignity for women. The UCC was included in the BJP's manifesto for the 2024 Indian general election, but they lost the majority required to amend the Constitution. While some BJP-ruled states have shown support for a UCC, national leaders have been less vocal. The party may be employing a bottom-up strategy, urging states to pass their own UCCs to build momentum for a national campaign.

The UCC has faced opposition from Muslim groups, such as the All India Muslim Personal Law Board (AIMPLB), who fear it will undermine their identity and religious laws. Hindu fundamentalists have also objected, and women's groups have expressed concerns about anti-women biases in the proposed legislation. Additionally, the idea of a UCC has been met with resistance from tribal communities, who worry that it will erode their local customs and traditions.

The state of Uttarakhand recently passed the UCC bill, becoming the first state in India to do so. The bill, which applies to all citizens of the state regardless of religion, establishes uniform rules on personal status law. However, it does not apply to Scheduled Tribes within the state. This development may influence the national conversation around the UCC and shape its future trajectory.

Despite the challenges and opposition, proponents of the UCC argue that it is necessary to uphold the unity of the country and secure equal rights for women. The N. Rau committee, formed to determine the necessity of common Hindu laws, concluded that a uniform civil code was needed to grant equal rights to women. The future of the UCC in India remains a complex and contentious issue, with ongoing debates and efforts to balance religious freedom, tradition, and the need for uniformity and equal rights.

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