An Analysis of Uniform Civil Code: A way ahead

Introduction

Directive Principles of State Policy (DPSP) are provisions in the Constitution which direct the state to secure social order and promote the welfare of the people. The Constitution of India provides for Directive Principles under Part IV of the Indian Constitution. Uniform Civil Code is one such principle which has been envisaged under Article 44 of the Indian Constitution by Dr. B.R Ambedkar and the constituent assembly.

A Look-back

The Uniform Civil Code aims to replace the various personal laws of India (The Hindu Marriage Act, The Waqf Act etc.) with a common law governing all the citizens of the country in matters relating to marriage, adoption, succession of property etc.

The idea of implementation of Uniform Civil Code was first introduced back in Colonial India.

The British found it exceedingly difficult to maintain law and order, given the large number of religious communities and the various distinct customs that they followed. Thus the idea of Uniform Civil Code floated which would bring all Indian under the same statute irrespective of their religion. However, after a while the British withdrew this idea because of the opposition of leaders of religious communities and the insistence of British on the divide and rule policy which would be adversely affected by a uniform codified law[1].

This issue of implementation of Unform Civil Code was revived during the constituent assemble debates. There was a clear division in the constituent assembly on this matter. There were members who were staunch supporters of Uniform Civil Code and believed that it was an essential tool to ensure unity, on the other hand the opposing group argued that Uniform Civil Code violated the freedom of religion and would lead to disharmony within the Muslim community.

The primary motivation behind the implementation of Uniform Civil Code was the promotion of secularism and unity. The proponents of Uniform Civil Code during constituent assembly debates such as K.M Munshi stated that a Uniform Civil Code was important for unity of the nation and upholding the secular credentials of the Indian Constitution. Furthermore, another individual in K.M. Munshi’s camp was Alladi Krishnaswami Aiyyer, who suggested that a Uniform Civil Code would do the opposite of bringing disharmony to the community and made an unruly comment towards the Muslim Members asking them why there were no protests when the British interfered with their practices.[2] However these two leaders and some of the other proponents went a bit far, and failed to realize the level to which the various local customs varied. It would have been too extreme of a change for personal matters to be covered under a unified code. Furthermore, given the extreme division around this issue, a binding article requiring the compulsory implementation would have likely added to the widespread sectarian violence. An opposing view about a Uniform Code was brought ahead by Karzi Karimuddin who debated that one must realize that a Muslim regards personal law as a part of religion and believes that majority of Muslim’s would not entertain changes in in the mandatory provisions of religious rights and personal laws. Naziruddhin Ahmed stressed on the importance of obtaining the consent of religious communities whose religious laws would not be affected by this code. We must understand how all religious communities’ function and study their customary practices, aspiring for a uniform code is a mammoth task. However, times are different now and the issue of violence from such an enactment is much less likely and the local customs have become much more uniform around India.

Legality

Coming to the question of legality, the arguments generally focus around the issue of Article 25. It can be seen that Article 25 provides the right of religion to individuals, furthermore Article 26(b)[3] gives rights to individuals to “manage its own affairs in matters of religion”. It might seem from a preliminary reading of Article 25 and Article 26 that any Uniform Civil Code if against the fundamental rights and will be struck down as per the rule set down in State of Madras v. Champakam Dorairajan[4], wherein the Supreme Court stated that all Directive Principles are subsidiary to fundamental rights.

However, this was not the case as, in John Vallamattom & Others v Union of India &Anrs.[5], the Supreme Court stated that Article 25 only extends to practice rituals and ceremonies which are considered an integral part of religion. Furthermore, Art 25(a) allows for state to make laws on secular activity which may be associated with religious practice. By its nature, the Uniform Civil Code is meant to promote secularism and thus, the provisions of any such legislation are unlikely to overlap with religious practices which are the integral part of any constitution.

Impact of Uniform Civil Code

The Hindu Code bills passed in the 1950s under the leadership of Jawaharlal Nehru and Dr. B.R. Ambedkar are likely a good yardstick to determine the possible impact of any Uniform Civil Code. The Hindu Code Bills included the Hindu Marriage Act[6], Hindu Succession Act[7], Hindu Minority and Guardianship Act[8], and Hindu Adoptions and Maintenance Act[9] and aimed at codifying and reforming Hindu Personal Laws in India. The Hindu Code Bills proved to be a landmark for Women’s rights. It provided women with two essential rights; right to divorce and right to property. Furthermore, the Hindu Code also bought end to numerous social evils such as the dowry system and polygamy. These are just some of the reforms overall, the Hindu Code Bills had impacts which went a long way in empowering women. Uniform Civil Code, Bill of 2018 also had similar provisions and the implementation of any further Uniform Civil Code is likely to have a similar impact in the empowerment of women and the upliftment of other such marginalized groups.

Conclusion

The circumstances during the time of enactment of constitution were such that it would not have been feasible for the implementation of a Uniform Civil Code. However, the circumstances today permit for the implementation of Uniform Civil Code. In fact, the circumstances kind of necessitate the implementation of such a legislation. In numerous cases the Supreme Court has also reiterated the importance of implementing a Uniform Civil Code. In numerous cases such as, in Ms. Jorden Deingdeh v. S.S. Chopra[10], the Court said that the time has now come for a complete reform of the law of marriage and make a UCC for the country, in Sarla Mudgal v. Union of India[11], where in the Supreme Court directed the Prime Minister to take a fresh look at Art. 44 of the Constitution, in John Vallamatton v. Union of India[12], wherein the Supreme Court has once again expressed its regret for non- enactment of Common Civil Code. And numerous others. It is high time for the Indian government to bring in a Uniform Civil Code to ensure further upliftment and fulfill its duty.

~Authored by Aditya Kashyap

References
[1] A C Banerjee, English Laws in India (Inaugural Edition, Abhinav Publication 1984) 134
[2] C.K Matthew ‘Uniform Civil Code: The Importance of an Inclusive and Voluntary Approach’ (20 March, 2022) < https://www.thehinducentre.com/publications/issue-brief/article29796731.ece>
[3] The Constitution of India, 1950, Art. 26(b) (1950)
[4] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226
[5] John Vallamattom & Others v Union of India &Anrs. (2003) AIR 2902
[6] THE HINDU MARRIAGE ACT, 1955, Act 25 of 1955 (1955)
[7] Hindu Succession Act, 1956, Act 30 of 1956 (1956)
[8] Hindu Minority and Guardianship Act, 1956, Act 32 of 1956 (1956)
[9] Hindu Adoptions and Maintenance Act, 1956 , Act 78 of 1956, (1956)
[10] Ms. Jorden Deingdeh v. S.S. Chopra, AIR 1985 SC 934
[11] Sarla Mudgal v. Union of India, (1995)3 SCC 635
[12] John Vallamatton v. Union of India, AIR 2003 SC 2902