The Uniform Civil Code- Reigniting Debate

The discussion surrounding the UCC remains a contentious topic, with contrasting viewpoints driving the dialogue as it aims to establish a standardized set of personal laws governing aspects such as marriage, divorce, and inheritance, regardless of an individual's religious or cultural background. UCC in India has its roots in the late 19th and early 20th centuries, characterized by colonial rule and subsequent independence.[i] During the colonial period, which commenced in the 1830s, the British administration attempted to reform social and religious customs, advocating for uniformity in the codification of Indian law. However, recognizing the subtleties and diversity of religious practices, particularly within the Hindu and Muslim communities, the British recommended that personal laws remain exempt from codification[ii].

In 1937, under the aegis of the East India Company, the Muslim Personal Law (Shariat) Application Act was enacted to establish an Islamic law code for Indian Muslims[iii]. Nevertheless, the application of this law differed significantly across local courts due to the diverse cultural contexts prevalent among Muslims in different regions of India. The expansion of legislation during British rule prompted the establishment of the B N Rau Committee in 1941, tasked with codifying Hindu law. As part of its deliberations, the Hindu Law Committee proposed a codified Hindu law that advocated for gender equality, particularly in matters of marriage and succession[iv]. This recommendation aimed to inspire uniformity and equality within Hindu personal laws.

The Contemporary Relevance Of Constitutional Principles

Following India's attainment of independence, discussions regarding the implementation of a Uniform Civil Code gained prominence. However, contradictory opinions emerged among members of the constituent assembly. While some contended that a UCC would promote harmony among India's diverse communities, others expressed reservations about its feasibility in a nation characterized by multitude religious and cultural identities. During the drafting of the Indian Constitution, prominent figures such as Maulana Abul Kalam Azad, KT Shah, Frank Anthony, Begum Aizaz Rasul, Mahavir Tyagi, Acharya JB Kripalani, T Prakasam, and Kamalapati Tripathi voiced strong opposition against the implementation of a Uniform Civil Code. Their concerns were majorly based on the potential erosion of religious autonomy, violation of minority rights, and disruption of cultural diversity posed by the imposition of a UCC.

These leaders called attention on the need to respect the cultural and religious diversity of India and advocated for the protection of personal laws to safeguard minority rights and maintain social harmony. Additionally, they highlighted the practical challenges and possible challenges that could arise from imposing a UCC, suggesting that reforms should be introduced gradually and through a consultative process to address the complexities and sensitivities associated with personal laws. Ultimately, the debate gained paramount importance in the constituent assembly, with deliberations focused on its inclusion under Part III or Part IV of the Constitution[v]. The assembly concluded that the UCC would be designated as one of the directive principles of state policy presently instilled in Article 44, serving as aspirational guidelines for the government, notwithstanding enforceability in courts of law.

Diverse Perspectives In The Opposition To The Uniform Civil Code

The evolution of the debate on the Uniform Civil Code demonstrates the multifaceted nature of India's social, cultural, and legal landscape, spanning from the colonial era to post-independence aspirations for uniformity and equality in personal laws. In the discourse surrounding the Uniform Civil Code (UCC) in modern India, three contextual issues emerge: legitimacy, majority versus minority concerns, and gender equality.

1. The question of legitimacy arises from the transition from colonial rule to independent governance.[vi] While colonial powers historically refrained from intervening in religious and personal customs, independent India, founded on the principle of universal suffrage, possesses the authority to legislate on a common uniform personal code.
2. The dynamics between majority and minority communities present complex challenges. The objections to a uniform code extend beyond non-Hindu communities, enclosing various sects and castes within Hinduism due to wide variations in customs and practices. These concern extends to the potential imposition of laws conflicting with deeply held religious beliefs and traditions.[vii]
3. The pursuit of gender equality emerges as a pivotal aspect. Historically, Hindu law discriminated against women, depriving them of inheritance, remarriage, and divorce rights. However, progressive movements and legislative efforts, such as the Hindu Widow Remarriage Act of 1856 and the Hindu Women's Right to Property Act of 1937, aimed to rectify gender disparities within Hindu personal laws. The B.N. Rau Committee of 1941, tasked with examining the necessity of common Hindu laws, recommended a codified Hindu law to grant equal rights to women. Despite initial efforts, the Hindu Code Bill faced numerous challenges and was eventually passed in separate parts between 1955 and 1956, addressing various aspects of Hindu personal laws. In the political narrative, fundamentalists opposed the Hindu Code on grounds of protecting traditional Hindu Shashtras, resentment toward untouched Muslim Personal Laws, and perceived haste in implementation without adequate public consensus.

During the colonial era, the British government in India sought to reform legal systems, particularly through the codification of laws related to crimes, evidence, and contracts. However, the Lex Loci Report of October 1840 recommended the exclusion of personal laws from such codification efforts, recognizing the complexities inherent in religious practices, particularly among Hindus and Muslims. This marked the initial stages of the debate, where personal laws were deemed distinct and outside the scope of uniform codification. Concerns were raised about the potential infringement of religious freedoms guaranteed under Article 25 and 26 of the Constitution.

In the years 2016-2018, the Law Commission actively engaged with the Muslim community, receiving detailed responses from the All India Muslim Personal Law Board regarding the UCC. However, despite consultations and reports, the government's stand on the UCC remained undisclosed, leaving the issue unresolved. The 21st Commission, led by Justice B.S. Chauhan, emphasized the importance of cultural diversity in India. It argued that while unity is essential, uniformity should not compromise the nation's cultural richness. The Commission advocated for the codification of personal laws to prioritize equity over the imposition of a uniform code, recognizing the complexities and sensitivities associated with religious practices. Furthermore, the concept of secularism was redefined to accommodate diversity without overshadowing minority voices. The Commission highlighted the need to address discriminatory practices within religions while upholding the principles of secularism and fundamental rights enshrined in the Constitution[viii].

The 2018 Consultation Report issued by the previous Law Commission definitively concluded that a Uniform Civil Code is deemed "neither necessary nor desirable".[ix]However, notwithstanding this unambiguous determination, the public has been asked to provide its opinions on the UCC once more—though in a manner that appears notably more questionable than previous inquiries. Strikingly, the Government has opted to maintain silence concerning the acceptance, rejection, or partial acceptance of the 2018 Report. This conspicuous lack of transparency raises substantive concerns regarding the Government's dedication to addressing pivotal legal matters and soliciting public input. It is peremptory that the Government promptly elucidates its position on the UCC and fosters transparent dialogue with the public to facilitate meaningful advancement on this matter within the structure of law.

Minority Concerns And Religious Autonomy

Opponents of the Uniform Civil Code vehemently argue against its implementation, citing its perceived unconstitutionality and its infringement upon the cultural and religious rights promised to minorities by the framers of the constitution. The Naga minority community, in particular, expresses dissatisfaction with the proposed UCC, with the Nagaland Bar Association cautioning that its enforcement would pose significant threats to Naga culture and dignity. In a letter addressed to the Prime Minister, the Nagaland Bar Association emphasized that the introduction of a UCC covering the entire nation would negatively impact and cause hardships for the Nagas, given the distinctiveness of their personal and social lives.

Several political parties echo similar sentiments, opposing the implementation of the UCC and highlighting its violation of minority rights. They argue that the diverse cultural topography of the country makes it virtually impossible to enforce a uniform code. Moreover, there are apprehensions within the Muslim community that the UCC serves as a surreptitious attempt to impose Hindu Personal Law on all citizens, disregarding the views and traditions of minority communities.

The All India Muslim Personal Law Board, asserted that the UCC is divisive and would lead to social unrest, contrary to the spirit of the Constitution, which upholds citizens' rights to practice their culture and religion. The standpoint of minorities emphasizes the idea that determinations on matters like triple talaq, which have their foundations in Muslim personal law, ought to be made by Muslims themselves by an open vote. They argue that on such matters, only Muslims should have the authority to decide, rather than individuals from every religious and community background. These disagreements highlight the concerns and apprehensions surrounding the implementation of the UCC, particularly its potential implications on minority communities.

Navigating Complexities Of Uniform Civil Code

The notion of implementing a Uniform Civil Code in India induces resistance and challenges, deeply entrenched in historical, cultural, and constitutional complexities. The very essence of the UCC blueprint challenges the underlying foundation of India's diverse environment, where communities have historically adhered to their own distinct personal laws, firmly entrenched in traditions like the Laws of Shaster or the Laws of Quran[x]. Since its inception, the Muslim community has adamantly opposed the UCC, viewing it as a direct threat to their religious and cultural autonomy. The objections raised in the Constituent Assembly Debate predominantly revolved around issues of nationalism and minority rights, with scant regard for gender equality, accentuating the deeply ingrained anxieties surrounding the UCC.

From the 1940s to the present day, Muslims have endured accusations of maintaining an "isolationist" stance[xi], further fueling misgivings and controversies regarding the UCC. Dr. B.R. Ambedkar, attempted to assuage concerns by proposing a voluntary declaration system, yet uncertainties persist regarding the coercive nature of its potential implementation. The think tank disillusionment surrounding the UCC projects it as a mandatory imposition, exacerbating minorities and intensifying opposition. Critics argue that India's diverse culture makes the concept of "one nation, one law" unworkable, especially considering the numerous modifications and amendments to existing laws across different states.

The legal system in India, characterized by variances in criminal, civil, and personal laws, highlights the impracticality of enforcing a single code. Constitutional experts posit that the framers never envisaged complete uniformity, evident in the allocation of personal laws to the Concurrent List, granting legislative authority to both Parliament and State Assemblies. Diverse religious and customary practices further complicate the prospect of a UCC, as India grapples with its pluralistic heritage. Minority groups vehemently oppose the UCC, viewing it as an encroachment on their religious freedom enshrined in Article 25 of the Constitution.

The Muslim community, in particular, perceives itself as the target of the UCC, fearing the erosion of their distinct religious identity and traditions. Moreover, tribal areas, protected by special provisions, demand consideration and consensus before any UCC implementation. The proposed UCC challenges the very essence of secularism, threatening India's rich diversity and tolerance. Minority communities rightfully demand respect for their personal choices and laws, enshrined in India's commitment to secular ideals. To prevent violating basic rights and igniting societal unrest, every attempt to incorporate personal laws into a standard code must be carefully considered and persuasively explained. A balanced approach that strikes a balance between the pursuit of justice and the protection of cultural diversification and individual freedoms is crucial because, despite promises for transformation in society and clarity, the implementation of a UCC is plagued by insurmountable challenges.

Challenges Of Implementation: A Case Study Of Goa And Uttrakhand

The Goa Civil Code (GCC) includes provisions for family law, particularly marriage, delineated in articles 1056 to 1239. An intresting aspect of Personal Family Law in the GCC is its treatment of marriage. Article 1056 defines marriage as a contract between two individuals of different sexes aimed at legitimately constituting a family. This definition reflects the Code's commitment to secular principles, shunning any reference to marriage as a sacrament, as observed in the Hindu Marriage Act[xii].Article 1057 of the GCC mandates the registration of marriages in the State. However, a closer examination reveals discrepancies in the grounds for solemnizing marriage. The provision distinguishes between the procedures for registering Catholic and non-Catholic marriages. While the intent of marriage must be recorded in Goa, Catholic couples can be married through church signatures alone for civil registration, unlike non-Catholics.

The Shariat Application Act does not apply in Goa, analysing Muslims subject to the Code and parts of traditional Hindu law. This not only creates communal hurdles by excluding a community from their personal laws but also results in the cryptic application of a blend of laws within the Muslim community, complicating the defination of uniformity.Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880, permits Hindu husbands to take additional wives if their existing wife fails to conceive a child by the age of 25. This provision extends to situations where the wife reaches 30 years of age without bearing a son, allowing for bigamy in the absence of a male heir.

Critics have accused the Uttarakhand government of capitalizing the new law to target Muslims who adhere to customary rules on polygamy and divorce under Shariah law, which is now prohibited. The UCC's lack of uniformity is evident in its exclusion of tribals and the absence of mention of the Hindu Undivided Family (HUF), which grants tax benefits to the Hindu community. These exemptions undermine the UCC's claim to uniformity, particularly as they exclude the majority community and certain privileged groups.[xiii]

While many argue for its necessity in achieving legal uniformity and gender justice, a closer examination proofs significant flaws in execution of the UCC. The assertion that existing criminal and civil laws exhibit uniformity is fundamentally flawed, as demonstrated by the varied provisions and exemptions present in laws such as the Indian Penal Code and the Code of Civil Procedure. Moreover, the Constitution itself embraces inclusivity and accommodates diverse interpretations of equality, within the pursuit of uniformity through the UCC legally unsound. Opposition to the UCC extends beyond mere religious considerations, covering concerns about cultural diversifications and minority rights. The absence of a concrete draft for the UCC further fuels anxieties among minorities, who rightly fear the imposition of majoritarian morality under the guise of uniformity.

In light of these considerations, it is imperative to reject the blanket implementation of the UCC. Instead, emphasis should be placed on extensive dialogue, consultation, and public awareness campaigns to encourage informed decision-making. A piecemeal approach, coupled with vigilant monitoring and evaluation, offers a more pragmatic pathway towards legal reform while respecting the diversity and autonomy of India's pluralistic society. Ultimately, the pursuit of justice and equality must not come at the expense of individual freedoms and cultural identities. As James Baldwin poignantly remarked, "I can't believe what you say, because I see what you do." The UCC, in its current form, risks betraying the very principles it seeks to uphold, perpetuating injustice under the guise of uniformity. It is incumbent upon policymakers to heed the voices of dissent and chart a course towards reform that truly reflects the ethos of a democratic and inclusive India.

Views are personal.