Article 44, a Directive Principle of State Policy in our Constitution, calls for a Uniform Civil Code (UCC), “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Parliament has not enacted a UCC in the last 77 years.
The state of Uttarakhand, however, in March 2024, enacted The Uniform Civil Code of Uttarakhand, 2024 which, after the approval of the President of India, has become the law of the state. It applies to the residents of Uttarakhand, excluding the tribals. No other state has so enacted a UCC.
Prime Minister Narendra Modi, in his address to the nation on India's 78th Independence Day, called for a "secular civil code," asserting that laws based on religion foster discrimination which “have no place in a modern society.”
What does the 'shift' from a Uniform Civil Code to a 'Secular' Civil Code imply? What does a civil code cover? What are the options and which one should be sought?
Civil Code Covers Personal, Property, and Business Matters
A civil code covers ‘civil’ matters in contrast to ‘criminal’ matters. The matters concerning the personal, property, and business relations of any person with the rest of the family and the world are broadly civil matters.
Personal matters, in this regard, include a wide range of issues such as marriage, divorce, adoption, succession, faith, caste, and the like. Acquisition of property and its holding, use, and dispensing is also a big part of civil matters.
Humans earn their bread by working as labourers or establishing businesses. Matters relating to employment, establishing and carrying on businesses, entering into contractual relationships, and financing of businesses via equity, debt or other modes of capital, also constitute a very important part of the civil code.
These wide-ranging civil matters were first defined and dealt with in numerous religion-based personal laws developed around the world. Later, as the state separated from religion, states enacted laws that defined many aspects of the civil relationships between citizens in personal, property, and business matters. The universe of civil matters is very wide.
Uniform Civil Code is Yet to Be Defined in India
Article 44 does not define what it means by ‘Uniform Civil Code’. Nor have the courts, including the Supreme Court, ever defined its scope. The matter has come up before the courts many times. They have mostly been concerned with the advisability of a UCC and/or the delay in the enactment thereof.
The Law Commission has not been able to do it either. In its 2018 Discussion Paper, it noted: “The issue of uniform civil code is vast and its potential repercussions, untested in India. Therefore, after detailed research and a number of consultations held over the course of two years, the Commission is presenting its consultation paper on reform of the family laws in India”.
The Law Commission in the Discussion Paper restricted itself to offering reform in civil law relating to the ‘aspects of prevailing personal laws’ de-privileging women. When the Modi government and the BJP upped the ante in 2023, the Law Commission again invited comments for a wider UCC. That process is still ongoing.
The Uttarakhand UCC also deals largely with personal matters. Even in that space, it recognises and validates different customs and practices instead of prescribing a particular custom as the uniform mode.
While making the registration of marriage compulsory (which was the case even before) and prescribing single-spouse marriages, the Uttarakhand UCC recognises all religious forms of marriages, ie, “Saptapadi”, “Ashirvad”, “Nikah”, “Holy Union”, “Anand Karaj”, marriages under the Special Marriages Act, Arya Samaj marriages, and so on. This ‘uniformity’ in the law, quite desirable in my judgement, is not what many proponents of the UCC want to see.
There is enormous fluidity and diversity in the understanding of matters that a civil code should deal with and even in the concept of uniformity for most civil matters.
Civil and Criminal Matters Are as Different as Chalk and Cheese
With respect to the UCC, a much-used analogy is that of the uniform criminal code, primarily contained in the Indian Penal Code (IPC), now the Bhartiya Nyaya Samhita (BNS). The prime minister also made a case for UCC in 2023 using this argument.
The essence of what is considered a crime is the societal common notion at any particular period. Some acts like theft and murder have been considered crimes for times immemorial, and certain other acts like prostitution, hurting religious sentiments, sedition, bigamy, etc, have undergone conceptual change from time to time.
Criminal acts are those that impact people unjustifiably and wrongly, which society considers unacceptable not only for the person impacted but for itself at large. The society/state, therefore, prescribes a common definition, standard of proof, and punishment for all acts considered criminal.
In quite a contrast to criminal acts, most civil relationships are voluntary and tend to benefit both parties involved. Therefore, there is no adversarial societal notion about considering civil relationships as necessarily good or bad, though it might not be agreeable to some people.
Still, religions tend to define civil relationships and their adherents tend to abide by that. Hindus consider marriage a sacrament. Muslims and many other religions/societies consider marriage a contract between the concerned male and female. Muslims consider debt a bad thing whereas the rest of the world considers debt perfectly kosher. Hindus did not consider women entitled to family property until recently, whereas Christians conferred equal property rights on women many centuries ago.
Religion-based civil relationships have evolved over the millennia, factoring human preferences amidst geographical, environmental, and many other differentiating circumstances. The lack of uniformity in these civil relationships is as conspicuous as the uniformity in criminal matters is.
Therefore, the analogy of uniform criminal laws in support of a uniform civil laws is irrational and completely beside the point.
Hindu Civil Code is Not a Secular Civil Code
India is predominantly Hindu. Parliament has done us a service in bringing uniformity in many civil matters, most particularly relating to marriage, succession, adoption and the like by enacting laws, most prominently in the 1950s.
The laws brought many reforms like granting rights to ancestral property to the women of the family. Additional matters, like divorce, have been and continue to be incorporated into these laws. The uniform Hindu Civil Code (HCC) is still evolving.
The provisions of the HCC are not acceptable to the tribal population and the citizens following other religions-based personal laws.
The BJP and many others, almost always from the Hindu community, asking for UCC, aspire to make the HCC a UCC. This is completely unfair to the non-Hindu minorities. That, perhaps, explains why the prime minister has switched to a ‘secular’ UCC.
Evolve a ‘Secular’/‘Human’ Code
The historical evolution of personal laws, largely based on the religious codes of people in the agricultural/pastoral economy in local/regional settings, makes many aspects thereof untenable for the modern, industrial, digital, and integrated world.
There is no justification for treating women as subordinate or less entitled in any civil matter, be it entering into marriage, acquiring property, or establishing a business. Women have to have equal rights to decide whom to marry, when to marry, to have children or not, to take a job or not, hold on to and dispose of property as they choose etc. There is also no justification for disentitling Muslims from taking loans, establishing a different system of education, or praying in a different religious structure.
The state must evolve a civil code that defines and aligns important civil matters in line with the demands of modern society which treats all humans, irrespective of sex, religion, sexual orientation, etc.
For example, for marriage, it can offer a simple affirmation before a court or a registrar of marriages signed by both parties as a valid marriage. It can also offer those who want to enter into non-heterosexual companionship the option to register their companionship as civil contracts.
In the formulation of a common or secular civil code, the Universal Declaration of Human Rights can offer valuable guidance and formulations. The Common Civil Code (CCC), so evolved, will be ‘secular’ in the sense that it will pick the best practices from all personal laws and current applicable laws in India and elsewhere in the world.
Let Citizens Choose
The common/secular civil code, so evolved, must be a completely optional code.
Let every individual citizen of India, irrespective of his or her religious upbringing, be given the option at the age of 21, to choose to be governed by the CCC or by any other personal law currently applicable in India.
All citizens above the age of 21 should also have the freedom to opt for the CCC at any stage of their life if he or she decides to do so. No reverse migration from the CCC to a personal law need be permitted.
Such a UCC/CCC regime would work best for India.
(The author is former Economic Affairs Secretary and former Finance Secretary of India. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)