Uniform Civil Code (UCC) is a European concept of 17th century. It is linked to the process of modernization and secularization in the west. The experience of 30 year war forced these countries to roll back the religion and to establish solidarity on the basis of secular nationalism. European nation states accepted the principle of ‘sovereignty of the state’, rejecting the sword of the church. Hence state became the supreme institution to determine law. There has been no limitations on the power of law-making by the state. To quote Hobbes ‘Liberty is where law is silent’. Freedom to conduct the life according to its own way was dependent on the will of sovereign. Hence in these countries, even the laws governing family, marriage, divorce, in heritance, so called personal laws came within the scope of legal sovereignty of the state. In these countries, religious freedom means freedom of conscience. (John Locke). It does not involve freedom to practice, profess and propagate religion. Thus European model of secularism, based on religious neutrality led to the UCC.
Uniform Civil Code symbolizes power of state to make personal laws. (Principle of legal sovereignty). UCC does not necessarily mean common code for all communities. It is up to the state as to what type of reforms state aims to make with respect to personal laws. Why it is called uniform? When state makes personal laws, some sort of uniformity automatically comes. Why? State /government can make laws only in accordance to the constitutional principles. Hence all laws are brought to align with the constitutional principles. Hence they start looking uniform or overlapping.
In India, the debate on uniform civil code revolves around 3 issues.
1] Secular nature of Indian state.
According to those who favor UCC, India will become secular in true sense only when there is a UCC. UCC is based on the idea of universal citizenship and understanding of secularism as ‘religious neutrality’.
2] National Integration.
According to the supporters of UCC, so long different communities continue to practice different personal laws, special rights, they will continue to remain conscious of their separate identities and will never emerge as a strong nation.
3] Gender Justice
According to the feminists, UCC will result into gender justice. It will help in realizing the constitutional ideals of equality before law, human dignity. It will result into the rejection of such customs and traditions which are discriminatory towards women. With respect to the issue of gender justice, the most controversial issue is the rights of Muslim women.
The debate on UCC in the country goes back to the constituent assembly. Leaders like Hansa Mehta, Rajkumari Amrit Kaur, K M Munshi favored introduction of UCC. Members of the minority like Ismail Sahib, Pocker Sahib strongly opposed UCC.
Pandit Nehru, Dr. B. R. Ambedkar favoured UCC however Ambedkar was realistic enough to understand that conditions are not conducive. Hence he hoped that once conditions become conducive, UCC can be introduced. Hence instead of putting UCC in part 3 as demanded by women members and rejected by members of minority, uniform civil code was placed in part 4 of the constitution. As per Art 37, directive principles are not enforceable by the court of law, yet they are fundamental in the governance of the country. Hence all governments are expected to make their public policy in light of these directives, which are like instruments of instructions by constituent assembly to the future governments.
As per Art 44 state shall endeavor to secure uniform civil code to all of its citizens.
‘Shall’ shows that it was imperative and choice of the word ‘endeavor’ show that governments will take ‘special efforts’ to create and environment conducive for UCC. It means that constituent assembly certainly favored the implementation of UCC.
Crux of the debate of UCC in India.
The basic question is not whether all communities to be governed by same personal laws or a single code, the basic question is whether Indian state can ‘constitutionally’ intervene in personal laws. Whether Indian state can make personal laws. It is to be noted that there is even a question mark on whether Indian state ‘supreme court’ can even interpret the personal laws. e.g. In case of Muslims – whether Supreme Court (SC) is the ultimate authority to tell what practices are permitted by Quran or not. There had been controversy in case of Shah Bano case with respect to the interpretation of Quran by the judges as well as with respect to the Shayara Bano case. In both these cases, common issue was triple talaq or talaq-e-biddat.
Why confusion emerges?
The conflicting provisions in the constitution itself. Indian constitution is not based don a single ideology, rather incorporates multiple ideologies at the same time. Within the chapter of fundamental rights both – Individual basis of rights and community based rights are guaranteed. On one hand there is a idea of universal citizenship, oh the other hand, differentiated citizenship, based on multiculturalism exists.
Art 14,15 guarantees equality in the eyes of state. Prohibits state from discriminating among citizens not only on the basis of sex but also religion.
On the other hand Art 29,30 guarantees community based rights. The real problem arises because in Art 25, besides freedom of conscience, the freedom to practice religion is also guaranteed.
Personal laws comes under ‘freedom to practice religion’. It is also to be noted that ‘right to religion’ under Art 25, is also not absolute. It is subjected to public order, decency and morality. Hence this creates scope for State’s intervention in religious practices.
Another confusing aspect is Art 13 (2) , state cannot make laws which takes away any of the fundamental rights guaranteed.
Art 13(1) as well as 13.(2) suggests that any law in contravention to constitution, whether pre or post-independence shall be considered void to the extent of inconsistency.
Another reason for confusion is lack of consistency and agreement on overarching principles within judiciary leads to uncertainties.
e.g. Narasu Appa Mali case, Bombay HC held that personal laws do not come within the definition of ‘law’ used in Article 13. Thus providing complete immunity to the personal laws. This was the major ground taken by All Indian Muslim personal law case.
However in Triple talaq case (Shayara Bano case), SC overruled the limitations imposed by the case of Shayara Bano case.
Earlier, as per the Appu Mali case verdict, common laws or customary laws were not to be treated as laws for the purpose of Art 13. It means the validity of the law cannot be challenged on the ground that it contravenes fundamental rights in Part However in Shayara Bano case (Triple talaq case), Supreme court did not accept the verdict of Bombay High Court. Even in Sabarimala case, it has been clarified that customs and traditions are not immune to the power of judicial review.
What is the status of Indian state modifying personal laws?
Britishers codified personal laws related to Christians and Parsis. They tried to codify Hindu personal laws but there was strong opposition from Hindus. Upper caste Hindus even opposed Ambedkar’s attempt to modify Hindu personal laws in the form of ‘Hindu code bill’. Hindu personal laws have been gradually modified and codified. Recently a separate law known as ‘Anand Marriage Act’ has been codified for Sikh community.
So far, the codification of Muslim laws remain. As per Muslim Personal Law Shariat Application Act 1937, state shall not intervene in Muslim personal laws.
A special marriage act also exists. Person following any religion can opt for Special Marriage Act (civil marriage act).
Status of codification of Muslim Personal Laws.
The 1937 act prohibits the state from intervention. As per the religion, Muslims are not supposed to live under man made laws. However in many Muslim countries, there is a codification of laws but the issue is that they are Islamic states.
Within Islam, there are different sects. Within each sect, there are different schools of interpretation. Hence even when community goes for codification, they have to first arrive at consensus among themselves.
It is a myth if we assume that Muslim personal laws have been entirely immune to state intervention in India. From time to time, Indian state have intervened and even codified Muslim personal laws. Judiciary, Parliament and even executive has made intervention.
1] Shah Bano case 1985.
Supreme Court had declared that Muslim woman is eligible to get maintenance in case of divorce, at par with Hindu women, which means they can get maintenance even after iddat period.
2] Parliament has passed Muslim Women Protection of Rights on Divorce Act 1986.
The act restored the earlier position where Muslim women would get maintenance only for iddat period.
3] Supreme Court in Shayara Bano case 2016, has declared that Talaq-e-Biddat (triple talaq) is not the essential practice of Quran/Muslim.
4] Govt. of India had passed a Triple Talaq Bill in Parliament.
Opinions on UCC.
What is the position of Supreme Court on Uniform Civil Code?
The position of Supreme Court has changed. Initially, supreme court took revolutionary approach. In Shah Bano case, Supreme Court has directed the government to bring UCC. Supreme Court even expressed dis-satisfaction that the directive has remained ‘dead-letter’. However after that, Supreme Court has only suggested that government should bring UCC but has not directed the government. In Sarla Mudgal case Supreme Court held that absence of UCC not only adversely impact Muslim women, it also impacts Hindu women. It pointed out that Hindus convert to Islam for the sake of second marriage. It is also a disrespect to the religion.
In Shayara Bano case, Supreme Court acted with restrain, only declared Talaq-e-Biddat null and void but did not suggest or directed government to implement UCC.
Approach of the government
Present government interpreted Supreme Court’s judgement in triple talaq as Supreme Court’s directive to introduce UCC. Government had also referred the matter to Law Commission in June 2016.
Opinion of Law Commission on governments reference
Since there is an absence of consensus, UCC is not possible and desirable in present situations. Issue of UCC is vast, its potential repercussions remain untested. Change should be done in a manner which can protect and preserve the diversity, plurality which forms socio-cultural fabric of the nation. The first step will be the codification of the laws.
1. First we should try to achieve equality between men and women within a community rather than between communities.
2. Codification should be done in a manner which preserves the differences which are meaningful.
3. Discriminatory practices to be taken out.
4. Absolute uniformity is not needed.
5. Follow piecemeal approach.
6. It is wrong to put Muslim women to make a hard choice between right to equality and freedom to practice faith.
7. By giving the example of Special Marriage Act, law commission held that codification of laws are themselves not the guarantee of justice. Law should not contain loopholes.
8. Freedom of religion has to be protected but evils should not take refuge in the name of social customs. Human rights is a touchstone. If practices violate human dignity, even when they are essential practices, they cannot be allowed.
Opinion of feminist scholars on the issue
1] Flavia Agnes (Jurist)
UCC is not a silver bullet that will bring justice automatically. Codification of Hindu laws is not a guarantee that women have achieved equality. And even constitution does not envisage uniformity. In Indian constitution, personal laws are in concurrent list. This itself means constitution permits diversity. Different ethnic communities e.g. Sixth schedule are allowed to practice their customs and traditions.
2] Nivedita Menan (Political scientist)
Any reform of Muslim Personal Laws should not be based on the self assumed arrogance of Hindu customs and traditions. In many ways, Muslim personal laws are more advanced than Hindu personal laws e.g. Among Muslims, all wives have equal status. Bigamy is more in practice among Hindus. Up till recently the second wife had no protection.
Doing right thing also requires right manner, right time and above all right intentions. UCC debate has nothing to do with nationalism or secularism. The most important concern is ‘gender justice’. UCC matter should be taken forward by women organizations. Hindu rightist groups should stay away from politicizing the issue. It strengthens the orthodox section among Muslims and weaken the liberal section.
In this context, the silent revolution led by judiciary is a better option than parliament making the laws. Especially when it is not representative of minorities. As suggested by Law Commission, a piecemeal approach, removing discrimination and preserving diversity is the best way out. Human rights have to be treated as a touchstone.