Uniform Civil Code: What It Is & Why It Matters

Uniform Civil Code. Image used for representational purposes only.

(Illustration: The Quint)

On 5 August this year, Article 370 of the Constitution, which granted special status to the erstwhile state of Jammu and Kashmir, was abrogated with a presidential order.

And on 9 November, the Supreme Court verdict in the decades-long, communally and politically charged Ayodhya dispute ensured that a Ram Mandir is built at the no-longer-disputed location.

Thus, in a span of three months, two of the Bharatiya Janata Party’s biggest promises were realised, sparking speculation that legislation on a Uniform Civil Code (UCC), also a central promise in the BJP’s latest manifesto, may be in the offing.

While delivering a judgment legitimising the Portuguese Civil Code of 1867, the SC reportedly described Goa as a “shining example” with a Uniform Civil Code and said that the founders of the Constitution had “hoped and expected” a UCC for India but the government had made no attempt yet.

Most recently, on 15 November, the Delhi High court heard petitions, which sought the implementation of a UCC in the country.

So, what exactly is a Uniform Civil Code and why does it matter? Here’s all you need to know.

What is a Uniform Civil Code?

A uniform civil code here refers to a single law, applicable to all citizens of India in their personal matters such as marriage, divorce, custody, adoption and inheritance.

It is intended to replace the system of fragmented personal laws, which currently govern interpersonal relationships and related matters within different religious communities.

The idea comes from Article 44 of the Constitution, which is one of the Directive Principles of State Policy. It provides that the State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India.

Directive Principles are defined in Article 37, which proclaims:

“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

Which effectively means that the vision of a Uniform Civil Code is enshrined in the Indian Constitution as a goal towards which the nation should strive, but it isn’t a fundamental right or a Constitutional guarantee. One can’t approach the court to demand a UCC.

But that doesn’t mean courts can’t opine on the matter.

In fact, the demand for a UCC came to the fore in the judgment pronounced in the Shah Bano Case in 1985, more than three decades after the Constitution was drafted.

Shah Bano moved Supreme Court seeking maintenance after her husband divorced her after 40 years of marriage by giving triple talaq and denied her regular maintenance. The SC bench, in a verdict in favour of Bano, observed:

“There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”

In the 1995 Sarla Mudgal Case, Justice Kuldip Singh reiterated the need for Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing ideological contradictions.

The same suggestion reflects in the verdicts of other landmark cases such as Jordan Diengdeh vs SS Chopra and John Vallamattom vs Union of India.

What Do We Have Now?

Different religious communities in India are currently governed by a system of personal laws, which have been codified over the years through various pieces of legislation. These laws largely focus on the following areas:

• Marriage and divorce
• Custody and Guardianship
• Adoption and Maintenance
• Succession and Inheritance

For example, Hindu personal law is codified in four bills: the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. The term ‘Hindu’ also includes Sikhs, Jains and Buddhists for the purpose of these laws.

“...The reference Hindus shall be construed as including a reference to persons professing Sikh, Jaina or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly.”

Muslim personal law is not codified per se, and is based on their religious texts, though certain aspects of these are expressly recognised in India in acts such as the Shariat Application Act and Dissolution of Muslim Marriages Act.

Christian marriages and divorces are governed by the Indian Christian Marriages Act and the Indian Divorce Act, while Zoroastrians are subject to the Parsi Marriage and Divorce Act.

Then, there are more ‘secular’ laws, which disregard religion altogether, such as the Special Marriage Act, under which Inter-religion marriages take place, and the Guardians and Wards Act, which establishes the rights and duties of guardians.

Furthermore, to protect distinct regional identities, the Constitution makes certain exceptions for the states of Assam, Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law.

Goa is, at present, the only state in India with a uniform civil code.

The Portuguese Civil Code of 1867, which continues to be implemented after India annexed the territory in 1961, applies to all Goans, irrespective of their religious or ethnic community.

It doesn’t matter whether you're Hindu, Muslim or Christian; if you’re a Goan domicile, the same set of civil laws will apply to you.

However, the Portuguese Code is not a completely uniform civil code. It makes certain provisions on religious bases. The most notable example is Hindu men being allowed bigamy if the wife fails to deliver a child by the age of 25, or a male child by the age of 30.

The Good and the Bad

The Good:

A Uniform Civil Code would, in theory, provide equal status to all citizens irrespective of the community they belong to.

Personal laws of different religions are widely divergent and there is no consistency in how issues like marriage, succession and adoption are treated for people belonging to different communities, which clashes with Article 14 of the Constitution, which guarantees equality before the law.

Reforms to personal laws have also been inconsistent. For example, multiple amendments have been brought to Hindu personal laws, while Muslim law has seen fewer changes.

Personal laws, because they derive from tradition and custom, also tend to give undue advantage to men. As the Law Commission observes in its 2018 consultation paper, “Various aspect of prevailing personal laws disprivilege women.”

This becomes evident in examples such as Muslim men being allowed to marry multiple wives, but women being forbidden from having multiple husbands.

In another example, even after the 2005 amendment to the Hindu Succession Act, women are still considered part of their husband's family after marriage. So, in case a Hindu widow dies without any heirs or will, her property will automatically go to her husband's family.

Men (fathers) are also treated as ‘natural guardians’ and are given preference under the Hindu Minority and Guardianship Act.

A UCC could lead to consistency and gender equality when it comes to personal laws, and usher in some much-needed reforms.

The Bad:

Even though it reinforces equality before law, the idea of a UCC clashes with the right to freedom of religion (Article 25 of the Constitution).

Separate personal laws are one of the ways in which people have exercised their right to practise their own religion, which has been particularly important for minorities. The UCC could become a tool to erode this right, suppress minorities and homogenise culture.

Attempts at a UCC will undoubtedly be met with widespread protest.

The Law Commission’s report on reform of family law (2018) comments that a uniform civil code “is neither necessary nor desirable at this stage.”

According to the Commission, the best way forward may be to preserve the diversity of personal laws but at the same time ensure that they do not contradict fundamental rights.

“It is urged that the legislature should first consider guaranteeing equality within communities between men and women, rather than equality between communities. This way some of the differences within personal laws which are meaningful can be preserved and inequality can be weeded out to the greatest extent possible without absolute uniformity,” it notes.

What Are the Govt's Plans With the UCC?

In its manifesto or Sankalp Patra released on 8 April, before the 2019 Lok Sabha elections, the BJP reiterated its stand to draft a Uniform Civil Code to deal with personal laws in India.

It cited Article 44 of the Constitution, as well as gender equality as the reasons behind why a UCC should be drafted, claiming that it will protect the rights of all women, “drawing upon the best traditions and harmonising them with the modern times.”

The Bharatiya Janata Party has promised a UCC in every manifesto since 1998, but hasn’t taken any action yet, including when it had a strong mandate, thanks to the ‘Modi wave,’ in 2014.

Despite the growing buzz, the likelihood of Uniform Civil Code being drafted and passed in the near future is unclear, since minorities have the most to lose from a poorly drafted UCC (which is likely to be the case in a rushed legislation) and are sure to raise concerns.