With the Bharatiya Janata Party (BJP) government’s election promise to implement the Uniform Civil Code (UCC) in Gujarat and Haryana, the debate over the need to secure a common and accepted set of governing laws for all communities, regardless of religion, has resurfaced.
The Supreme Court has also emphasised the need to move in this direction on multiple occasions. The Constitution of India itself, under Article 44, directs the State to secure a Uniform Civil Code for the citizens throughout the territory of India. Moreover, such a step arguably would foster the unity and integrity of the nation.
However, can a diverse, heterogeneous and plural society like India, with many religions and cultural practices, be governed by a single homogeneous set of laws without compromising its people’s religious freedoms? Or, can’t there be unity in diversity with people having not only acceptance but also reverence for each other’s cultural and religious beliefs?
These are some of the legitimate questions which run counter to the idea of enacting UCC. This law post aims to help you develop an opinion regarding whether India needs a Uniform Civil Code.
What Is Uniform Civil Code?
Uniform Civil Code strives to replace the various personal laws of all religious communities in matters of marriage, maintenance, inheritance, succession, adoption, custody, divorce, and other family matters with uniform secular laws. In doing so, it is proposed that the best of all religious practices that are most humane, civilised, and adhere to the Constitution be adopted. The idea is to curb all religious practices that disprivilege women and to protect children’s interests.
UCC and the Constituent Assembly Debates
In the Constituent Assembly, Dr B.R. Ambedkar argued that such a provision of uniform Code is desirable but, for the moment, left it voluntary. A consensus could not be formed among the members regarding to what extent personal laws may be abandoned to secure the freedoms of the individuals. Therefore, the provision was made only a directory under Part IV (Article 44) and not given a status of a Fundamental Right under Part III of the Constitution.
UCC vs Right to Freedom of Religion
Article 25(1) of the Constitution guarantees every person freedom of conscience and the right to practice, profess and propagate any religion. Therefore, it is alleged that restricting and abolishing one’s personal religious practises would run counter to the said right.
The Supreme Court has fairly resolved the issue in its various judgments, including as early as 1951 in the State of Bombay vs Narasu Appa Mali. It clarified that social evils should not be allowed to take refuge in customs. Unreasonable and arbitrary practices like Sati, dowry, child marriage, and slavery can’t be accorded for the sake of religious freedom. Also, Article 25 is not absolute and subject to restrictions, namely, public order, health, morality, and other provisions of Part III of the Constitution. It is only as long as any religious practice survives the test of justness and doesn’t violate any Fundamental Right that it may be allowed to be followed.
UCC vs Various Personal Laws
A community’s personal beliefs and convictions shape its personal law, and as a result, they differ. For example:
- Marriage: In Hinduism, marriage is considered sacred. For Muslims, it is a contract. And for Parsis, the registration of marriage is compulsory.
- Adoption: Adoption is recognised in all aspects of Hindu law but not in Muslim law.
- Divorce: In matters of divorce, a relatively easy and relaxed procedure is allowed in Muslim law compared to Hindu law.
- Others: The dissimilarities exist in all other personal matters of guardianship, maintenance and succession too.
In such circumstances, the application of UCC would have to filter out the test of various legal challenges, namely, how would the practice that is the best of all be selected? How, at the same time, do we not infringe on the cultural and minority rights of the communities and the freedom of religion? How do we not undo the idea of fraternity reflected in the Preamble?
An outright enactment of the Code may not only threaten the unity of the nation but will also make the minority communities feel less secure culturally. However, the idea is not to let barbaric, unreasonable, and patriarchal cultural practices run against the Constitution itself. But a secular Code may only be allowed to operate gradually and through a piecemeal approach.
Steps have already been taken in the said direction by both the legislative and the judicial bodies. For example:
- The legal age of marriage for all communities is governed by the Prohibition of Child Marriage Act of 2006;
- For marriage, a secular Special Marriage Act has been enacted;
- For adoption, a secular Act, i.e. the Juvenile Justice Act of 2000, is in force;
- For guardianship, the principle of the best interest of the child governs all matters of guardianship;
- The presumption of paternity under section 112 of the Indian Evidence Act;
- Maintenance provisions of section 125 of the Code of Criminal Procedure are non-religious in nature;
- The age of majority is governed by the Indian Majority Act of 1875 for nearly every matter;
- The Prevention of Children from Sexual Offences (POCSO) Act, 2012, which among other things, is enacted to protect children from acts of sexual assault and harassment, also doesn’t differentiate based on religion.
Judiciary has also interfered time and again to eliminate the cultural practices which have been adverse and unsympathetic to women. For example, the abolition of the Triple Talaq practice of divorce in Muslims and polygamy in Hindus, upholding the guardianship rights of Hindu women, and making registration of marriage compulsory for all, may be considered for those instances. Therefore, even though there is no formal implementation of Article 44, one may easily feel its effects.
In 2016, the government referred the above matter of enacting a uniform Code to the Law Commission. The Commission’s concluding remarks in its consultation paper (which it submitted in 2018) that such a Code is “neither desirable nor needed” sound relevant even today. The Commission also suggested that instead of having a universal set of laws governing personal matters, we may choose to reform the individual personal laws of each community so they don’t infringe on any constitutional rights or tend to be discriminatory in nature. Hence, let pluralism and multiculturalism not suffer as a result of any avoidable or inessential law. If any reform is really required in personal matters, then those must be made with respect to matters governing live-in relationships and homosexual couples.
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