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ONE NATION, ONE LEGISLATION: IS UNIFORM CIVIL CODE GOVERNMENT’S NEXT MOVE?

Dated: April 19, 2020

“UNIFORM CIVIL CODE IS NOT THE MAJORITY CIVIL CODE. Uniform Civil Code does not in any way means that India will have HINDU FAMILY LAWS for all as some people are making it to be. Actually, this means the archaic practices and family laws of the medieval times will be replaced by codes which are SECULAR, MODERN AND AGREEABLE to all the sections of the society.”

                                                                                                                                                       -Arvind Adityaraj

Uniform Civil Code(UCC) is the ongoing point of debate within Indian mandate to replace personal laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. That means religious ordinances governing marriage, divorce, adoption and inheritance will be inferior to what the Constitution-framed law holds.

The issue of the Uniform Civil Code has emerged into India’s political discourse recently mainly because many Muslim women, affected adversely by the personal laws, have begun knocking on the doors of the Supreme Court to uphold their fundamental rights to equality and liberty in keeping with constitutional provisions.

Historical Background

The call for a Uniform Civil Code (UCC) has long featured on the agenda of the Bharatiya Janata Party (BJP) and found mention in its manifesto for the 2019 Lok Sabha election. The issue is not new either for the BJP or for Indian politics: it has been at the centre – and side-lines – of political and legislative debates for well over a century and a half. The BJP was the first party in the country to promise the implementation of UCC if it were to be elected into power. Now that it holds the reins of power, it may be a matter of days before the subject shifts from continuous debates to actual law. The urgency seems unavoidable given the ruling party’s recent history with regard to the revocation of Article 370, rendering all forms of talaq to be void, in the context of the talaq-i-biddat, and the determination it has shown towards the construction of the Ram temple in Ayodhya.

Legal Precedents

Keeping in mind the right-wing political narrative dominant in the country, the recent pronouncements made in political quarters as well as by the Supreme Court, C.K. Mathew, who was Chief Secretary of Rajasthan before retiring from the Indian Administrative Service (IAS), traces the path of the UCC debate, linking it to the debatable evolution of the Hindu Code Bill, and other key developments since independence, such as the Shah Bano case. 

In the Shah Bano case, the court lamented that Article 44 remained a “dead letter.” Chances are that it may continue to remain so. 

In 1995, in the case of Sarla Mudgal, Justice Kuldeep Singh reiterated the need for Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing ideological contradictions.

The same suggestion reflects in the verdicts of other landmark cases such as Jordan Diengdeh v. SS Chopra and Vallamatom vs. Union of India.

Also, attention needs to be drawn to international experiences from Rome, France, UK and other countries, including the Islamic nations.

As it has been said by CK Mathew, “the way forward, is not to force it on an unwilling people but to follow the middle path of voluntary adoption”, as once suggested by the Chairman of the Drafting Committee of the Constitution of India and the country’s first Law Minister, B.R. Ambedkar:

“It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary.”

Provision in Constitution of India

The constitution has a provision for Uniform Civil Code in Article 44 which states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

There are a number of cases where the Supreme Court has referred to Article 44 and the concept of uniform civil code, mainly to highlight the uninspired attitude of the executive and the legislature in the implementation of the directive.

It falls within Part IV of the Constitution titled as Directive Principles of State Policy (DPSP) and understood as persuasion to the State to be kept in mind while governing the country.

Why it’s application Matters?

A petition was filed by BJP leader and lawyer Ashwini Kumar Upadhyay. Beside Upadhyay’s petition, there are four other similar pleas which are seeking for UCC. All the petitioners, in their respective pleas, have contended that India “urgently needs a Uniform Civil Code” to promote national integration as well as gender justice, equality and dignity of women.

The petitioners have contended that gender justice and gender equality, guaranteed under Article 14 and Article 15 of the Constitution and dignity of women, guaranteed under Article 21 of the Constitution, cannot be secured without implementing the Article 44.

On 5th August 2019, Article 370 of the Constitution, which granted special status to the erstwhile state of Jammu and Kashmir, was abrogated with a presidential order.

And on 9 November 2019, the Supreme Court verdict in the decades-long, communally and politically charged Ayodhya dispute ensured that a Ram Mandir is built at the no longer-disputed location.

Thus, in a span of three months, two of the BJP’s biggest promises were realised, sparking speculation that legislation on a Uniform Civil Code, also a central promise in the BJP’s latest manifesto, may be the next in line.

While delivering a judgement legitimising the Portuguese Civil Code of 1867, the SC reportedly described Goa as a “shining example”. Goa, is at present the only state in India with a Uniform Civil Code. The Portuguese Civil Code of 1867, which continues to be implemented after India annexed the territory in 1961, applies to all the people of Goa, irrespective of their religious or ethnic community. It doesn’t matter whether you are Hindu, Muslim, or Christian; if you are a Goan domicile, the same set of civil laws will apply to you. Supreme Court said that the founders of the Constitution had “hoped and expected” a UCC for India as well but the government had made no attempts yet.

Pros of the Uniform Civil Code

1. To provide equal status to all citizens
2. To promote gender parity
3. To bypass the controversial issue of reform of existing personal laws
4. To support the national integration
5. To accommodate the aspirations of the young population

Cons of the Uniform Civil Code

1. Interference of state in personal matters
2. Perception of UCC as encroachment on religious freedom
3. Practical difficulties due to diversity in India
4. Time is not yet suitable for this reform            
5. Sensitive and tough task

Current institutions need to be modernized, democratized and strengthened for this change. Sincere efforts towards women empowerment have to be taken for all women of all religions. The plural democracy is an identity of the modern India. Therefore, efforts should be focused on harmony in plurality than blanket uniformity for flourishing Indian democracy.