Uniform civil code is a political hot potato in India. Several incidents in the recent past have brought the issue back in Indian political discourse. This article explores in detail the issues relating to UCC and the way forward.
A Uniform Civil Code, in simple words, means having one law for one nation. Historians say its origins can be traced back to the Romans. They governed themselves based on a civil law, not holy text. The Mesopotamians did the same. They followed the code of Ur-Nammu, apparently the oldest law code in history.
In modern times, it emerged in 17th century Europe when the process of industrialization and secularisation had begun there. The Constitution of USA is another such example that treats all its citizens as equals. “All men are born equal,” it reads and thus frames same laws for all citizens.
In India, however, the case is different. Laws are based on religion, caste, culture, even geography, especially in case of inheritance and property rights. For instance, Northeast Indian states like Nagaland, Meghalaya and Mizoram are given immunity from mainstream laws by the Sixth schedule. Indian Constitution permits them to frame their own laws to preserve their unique culture, no matter how archaic the laws may be. This is based on the concept of multicultural citizenship (as opposed to universal citizenship in the West).
Another issue is that of religion. In India, certain personal laws for Muslims are determined by the Quran. These mainly include matters relating to marriage, divorce, inheritance, and custody of children. Thus, a Muslim woman’s rights in these matters are at the mercy of Muslim Personal Law Board, which are mostly composed of and run by men.
The Muslim Personal Law came into force in the year 1937. The Britishers supported its formation. Why? To divide and rule. To ensure that India remains separated into water-tight compartments, that will make it easier for them to rule.
Unfortunately, this continued even after independence. However, the issue was debated fiercely in the Constituent Assembly. From women leaders like Hansa Mehta and Rajkumari Amrit Kaur to Dr. B. R. Ambedkar and Pt. Jawaharlal Nehru, all favoured the introduction of a uniform civil code. They wanted to get rid of personal laws. However, members from the minority like Ismail Sahib and Pocker Sahib we’re staunch opponents of UCC.
Dr. Ambedkar was the strongest proponent of it. In a Constituent Assembly debate, he said, “I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities and discriminations which conflict with our fundamental rights.”
Nehru agreed with all of this. However, he feared that Muslims who had stayed back in India after partition would feel insecure, if it is introduced immediately. Thus, although he had his ‘extreme sympathy’, the time was not ripe for it. Thus, the provision for a Uniform Civil Code was put in the Directive Principles (article 44) which are non-justiciable.
The debate around UCC has kept erupting in Indian politics from time to time. In the 1950s, Hindu Code Bill were introduced. It abolished certain personal laws. Nehru said this was the first step towards bringing a UCC. Recently a separate law known as ‘Anand Marriage Act’ has been codified for the Sikh community. Besides special marriage act provides a person following any religion can opt for Special Marriage Act (civil marriage act).
The debate again gained momentum in the 1980s when Parliament overturned the verdict on the Shah Bano case. The Supreme Court said, “A common civil code will help the cause of national integration by removing desperate loyalties to laws that have conflicting ideologies.”
Three decades have passed since then, and the issue of Uniform Civil Code has again come to the fore. The ruling party, Bhartiya Janata Party, promised to bring Uniform Civil Code in its 2019 manifesto. The party promised to adopt the best provisions of different personal laws from different religions. However, it has not been able to pass despite being in power for 8 years. Meanwhile, several petitions have been filled in the Supreme Court to look into the other types of divorces prevalent in the Muslim community.
Critics say this a move against secularism, and targets the Muslim community. UCC is opposed not only by some political and religious groups, but also by the tribal communities from the Northeast. The critics fear that the views of the Hindu majority would be forced on everyone in the garb of UCC.
The major question is whether Indian state can constitutionally intervene in personal laws. Article 25 of the Constitution grants the right to ‘practice’ religion. Thus, can state interfere in the practice of such religious principle. The Supreme Court has clarified in Shayara Bano case (triple talaq case) that customs and traditions are not immune to the power of judicial review.
On the other hand, the proponents of UCC argue that UCC only brings uniformity, uplifts women and oppressed religious communities. Goa is cited as an example, the only state where a uniform civil code is in operation.
The main issue highlighted in support of UCC is that of gender justice. Several personal laws discriminate against women and violate not only the fundamental rights of women but also the basic ideals of human dignity. However, it is argued that the discriminatory aspects of such laws are often declared void by the Supreme Court on case by case basis like in the case of triple talaq (piecemeal approach). Also, Flavia Agnes (Jurist) argues that UCC is not a silver bullet that will bring justice automatically. Nonetheless, UCC will set uniform guidelines based on equality.
Then we have examples of some Islamic countries that have reformed Personal laws to curtail their misuse. Turkey, Tunisia, Egypt, Jordan have codified their personal laws as per their Constitution. Thus, polygamy is abolished in Turkey and Tunisia. Whereas Jordan and Egypt have banned triple talaq.
The question thus arises is that if some Muslim countries and Western democracies can follow a civil code, why should India live under archaic laws passed before independence?
India is a secular, multicultural nation. Any decision in this direction can be reached only after building consensus. That can be done by bringing experts from all religions and drawing from their best practises. Only in this way can India bring a uniform civil code that mitigates discrimination without compromising with diversity.