India is a land where spirituality is as diverse as its landscapes. The coexistence of followers of various religions extends to encompassing harmonious coexistence of people belonging to castes and sub-sects of the same religion. Yet, amid this beautiful diversity, a call for a Uniform Civil Code (UCC) echoes across nation. Enshrined in Article 44 of the Indian Constitution as a DPSP, “State shall endeavor to provide for its citizens a uniform civil code (UCC) throughout the territory of India”, the UCC seeks to forge a common legal path in matters of marriage, divorce, inheritance, and adoption.
While the idea of UCC has garnered attention, its implementation remains a topic of debate. Against the backdrop of India’s dynamic religious landscape, it has profound implications. This article delves into the crux of this debate, exploring the constitutional validity of UCC and its alignment with the principles of equality and justice. Drawing parallels with the successful models like the Goa Civil Code and global examples, it underscores the progressive essence of UCC, advocating for uniformity while acknowledging the reasonable concern of various communities.
Historical Roots and Modern Discourse of UCC
As opposed to a popular misconception, the proposition of UCC isn’t a recent development initiated by the BJP-led government. Instead, it has been subject to various historical debates and discussions. During the constitutional debates surrounding the UCC, the Naga People’s Front (NPF) voiced concerns, asserting that the UCC undermined the trust of tribal communities. A compromise was ultimately reached, according to which it was relegated to the status of a directive principle. Notable members of the constituent assembly, including Minoo Masani, Rajkumari Amrit Kaur, and Hasna Mehta contended that personal laws perpetuate divisions within the country by categorizing various aspects of life. The present scenario in India includes a President hailing from a tribal community. Furthermore, reservations granted to members belonging to scheduled tribes ensure their representation in Parliament. This framework enables individuals from these communities to effectively voice their disagreements with intricate provisions of the proposed uniform code’s draft.
Historical attitudes, including those of prominent figures like Jawaharlal Nehru, have significantly shaped the current debates surrounding UCC. Nehru’s reluctance to intervene in Muslim religious matters, as evidenced in conversations with Tibor Mende in 1936, highlights the complexities inherent in implementing a uniform legal framework. However, it’s crucial to recognise that the UCC has been consistently acknowledged as a necessary step towards societal progress.
Interestingly, while leaders like President Habib Bourguiba of Tunisia and President Ayub Khan of Pakistan modified Muslim personal laws in their respective countries, Shariat law was left untouched in the Indian context. The state of Goa in India stands apart with its unique uniform civil code. Additionally, on an international scale, countries governed by Shariat as the state law have undertaken legal amendments to foster progress within their societies. Considering the success of a regional model of UCC, that is the Goa Civil Code, and the openness to necessary amendments in religious code deemed acceptable by various communities worldwide, UCC implementation in India should be perceived as an inclusive and progressive measure.
Goa Civil Code
The Portuguese Civil Code, 1867, retained as Goa Civil Code in 1961 after Goa’s liberation, is applicable to all Goans, regardless of religion, caste, or creed. The code covers personal and family matters. It mandates registration of births, marriages, and deaths. Muslims who register their marriages in Goa are prohibited from polygamy and triple talaq. However, the code grants an exception to a Hindu man to marry once again if his wife doesn’t conceive a child by the age of 21 or male child by the age of 30. This particular provision is outdated in its ideology and any such exception must not form a part of the Uniform Civil Code of India.
Though certain aspects of this code are not fully uniform and applied on the basis of religion, it has been functional and successful in Goa. The Supreme Court has illustrated Goa as a “shining example” for uniform civil code. Hence, taking lessons from reasonable discontentment against this code, the blueprint of UCC must be designed.
Presence of UCC in Countries Following Shariat
In Turkey, under the Turkish Civil Code, 1926, polygamy was banned. Furthermore, men and women were made equal with regard to inheritance and testimony. The code of 2001 laid significant changes towards gender equality in marriage. Men’s supremacy in marriage was abolished. Indonesia, Tunisia, Jordan, Kazakhstan, and Azerbaijan are other Muslim countries that have equal laws. With 99% of its population following Islam, Turkey demonstrated that adapting personal laws to contemporary notions of justice and equality is not only possible but also essential for societal progress.
In India, while criminal law maintains a uniform approach, ensuring equal penalties irrespective of religious affiliations, the same consistency is lacking in personal matters. The logical question arises: if we can adhere to a uniform standard in criminal law, why not extend this principle to civil matters? The proposal is not to infringe upon religious freedoms but to advocate for a more consistent legal approach. The implementation of UCC would simply signify a commitment to equality and justice for all.
As Arif Khan Mohammad, Kerala’s Governor puts it, communities can continue to practice their customs and traditions freely, but in the case of disputes, unform justice would be provided to all. This would ensure that no individual faces discrimination based on their faith. Talking about Pakistan’s post-partition legal changes in 1962, he drew attention to the ban on triple talaq and restrictions on polygamy in the new dominion’s amended personal laws. Thus, it could be drawn that the unbacked resistance to the Uniform Civil Code stands as a baseless obstruction to the growth envisioned through its implementation.
The Supreme Court’s Call for UCC
The UCC balances protection of fundamental rights with religious dogmas. In 1985, the Supreme Court effectively directed the government to enact a uniform civil code and ruled that “a uniform civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.[1]” In the few cases discussed below, the Supreme Court has outlined the need of UCC for various different reasons:
Sarla Mudgal v. Union of India (1995)[2]
In this landmark case, the Supreme Court held that second marriage after converting to Islam is void and punishable under the Indian Penal Code. The first marriage was not dissolved, and the second marriage took place during the first wife’s lifetime. The Hon’ble Supreme Court ruled that this practice was invalid, and that the apostate husband was guilty of bigamy under Section 494 of the IPC. The court stated that there is no justification for delaying the introduction of a UCC. It further remarked, “until a UCC is achieved, there is an open inducement to a Hindu husband, who wants to enter into a second marriage while the first marriage is subsisting, to become a Muslim.”
John Vallamattom & Anr v. Union of India (2003)[3]
This case was heard in the Indian Supreme Court on July 21, 2003, in the form of a writ petition. The case involved Section 118 of the Indian Succession Act, 1925, which stated- “A testator cannot bequeath property to religious or charitable uses if they have a nephew, niece, or any other nearer relative. The testator must have executed the will at least 12 months before their death and deposited it within six months.” The Supreme Court ruled that such section of the said act was in violation of Article 14, and thus, unconstitutional.
In both instances, the legal system faced challenges to deliver justice- one stemming from a void in applicable laws, and the other from inherent flaws within an existing legal framework.
Additionally, in Shayara Bano v. Union of India (2017)[4], the Supreme Court declared the practice of Triple Talaq unconstitutional and directed the legislature to take measures against the practice to stop the abuse against women. More recently, in ABC v. The State (NCT of Delhi) (2015)[5], the Supreme Court allowed a single, unwed Christian mother to become a child’s legal guardian without the deserter father’s consent. These judgements emphasize a primary benefit of the Uniform Civil Code: safeguarding women’s rights and ensuring justice for them. The principle stands strong that a woman, based on her faith, should not be subject to varying rights. The UCC advocates for equal and just rights for women in all personal matters, irrespective of their religious beliefs.
Tribal & Minority Concerns
The prevalence of regional and religious misconceptions surrounding the Uniform Civil Code necessitates a thorough examination and clarification. The very inclusion of UCC as a DPSP solidifies its constitutional validity. Contrary to misconceptions, the UCC is not a tool to curtail individual freedoms but rather a mechanism to standardize laws across communities. Further, it is imperative to dispel the notion that the UCC infringes upon religious rights, as the principle of ‘secularism’ is deeply ingrained in the Constitution. UCC would not affect the rituals and traditions that one has been following since childhood. However, it would govern all personal matters, such as marriage, divorce, maintenance, inheritance, and adoption, cherishing the principle of “Unity in Diversity”.
In the Northeastern states, particularly, Mizoram, Nagaland, and Meghalaya, concerns have been raised regarding the protection of tribal groups’ customary laws. The President of Mizo National Front, C.M. Zoramthanga, remarked that if the UCC is enacted, “it would disintegrate the country as it was an attempt to terminate the religious or social practices, customary laws, culture and traditions of religious minorities, including Mizo.”[6] The NDPP expressed its concerns saying that “the implementation of UCC will have a negative impact on the freedom and rights of the minority communities and the tribal people of India.”[7] The three major tribes present in Meghalaya- Khasi, Jaintia and Garo, and tribals of Assam- Bodos, Rabhas, Misings, Karbis, Dimasas, Sonowals, Deoris and others have their distinct customs relating to marriage, divorce, and inheritance.
The essence of the Uniform Civil Code lies in the principle- ‘uniformity doesn’t imply conformity’. It upholds the right of individuals to practice their religion and preserves cultural traditions. The UCC strives to create a unified legal framework for personal matters, simultaneously respecting religious freedom, celebrating cultural diversity, and safeguarding the rights of minority communities. Considering both the constitutional protections in place and sentiments of the tribal communities in the northeast and across the nation, it is prudent for the Union government to proceed cautiously and promptly address concerns among tribals regarding the UCC. The Indian Constitution accommodates both integrationist and restricted multicultural approaches, acknowledging cultural differences. The Union government shall provide a comprehensive assurance that indigenous tribals in the country will be exempt from the UCC, quelling any apprehensions among the tribal communities. Hence, while developing the UCC, important stakeholders, including religious leaders, community representatives, and legal experts, must be recognized and perspectives and needs of each and every group must be considered.
Conclusion
In conclusion, while the UCC seeks to establish a unified legal framework for personal matters, it is significant to dispel misconceptions that it infringes upon individual religious rights or erodes cultural traditions. The essence of the UCC lies promoting unity without imposing uniformity, embracing the multicultural thread of India. In an era where legal complexities continue to evolve, the imperative for uniformity in personal matters stands out as a pressing need. As India celebrates 75 years of independence, the call for implementing the DPSP pertaining to a Uniform Civil Code becomes more resonant than ever.
Practical and effective steps must be taken to ensure its implementation, addressing concerns of various communities while promoting justice for all. Strategies for overcoming diverse legal and cultural challenges include engaging with stakeholders, fostering effective dialogue, and implementing exemptions where necessary to accommodate unique traditions. In this period of increasing communal tensions in India, the call for a UCC resonates as a crucial step towards national integration and progress. As India strides forward, embracing unity amidst diversity, and the implementation of a UCC serves as a testament to the nation’s commitment to justice and equality for all its citizens.
Article contributed by Mahi Agrawal.
[1] Mohd. Ahmed Khan v. Shah Bano Begum and Ors, 1985 AIR 945.
[2] Sarla Mudgal v. Union of India & Ors., 1995 AIR 1531.
[3] John Vallamattom & Anr. v. Union of India, 2003 6 SCC 611.
[4] Shayara Bano v. Union of India, 2017 9 SCC 1.
[5] ABC v. The State, 2015 SC 609.
[6] Talukdar, S. (2023, August 1). Uniform Civil Code: Tribal communities fear erosion of customary laws, cultural heritage. Frontline. https://frontline.thehindu.com/the-nation/uniform-civil-code-tribal-communities-in-north-eastern-india-fear-erosion-of-customary-laws-cultural-heritage/article67105854.ece
[7] Ibid.
