The article aims to discuss, present and analyze judicially the Uniform Civil Code (UCC) which is contained as a Directive Principle of State Policy in Article 44 of the Constitution and to present the findings and conclusions thereafter. It contains a brief history of UCC which also includes the arguments raised in the Constituent Assembly debates. It then goes on to present the cases in which the judiciary has talked about UCC and its need in India. It also tries to throw some light on the future prospects of a UCC which includes the right to freedom of religion challenge which is unarguably the biggest concern for any government which tries to come up with a UCC. It also addresses, in brief, the majoritarian aspect of UCC in the light of Uniform Code v. Common Code. It finally tries to present the findings and conclusions at the end. The article aims to answer two questions. Firstly, does Article 44 give the State the unquestionable power to come up with a UCC? Secondly, does the Right to Freedom of Religion challenge future legislation for UCC and provides for a plurality of personal laws?
Brief history of Uniform Civil Code and the journey of UCC in the Judiciary
Uniform Civil Code (UCC) which finds a constitutional mention in the Directive Principles of State Policy is a set of civil laws which will be applied on all the citizens of India irrespective of the religion they follow. The domain of this code will be the civil matters of marriage, divorce, adoption, inheritance, succession, custody etc. This will mean that the citizens will not be governed by their personal laws in the civil matters concerned.
Article 44 being a part of Part IV of the Constitution does not permit the courts to compel the government to chalk out a Uniform Civil Code. Though the courts have felt the need for UCC, it is fully on the government to decide when and how to frame it. Not much effort has been made to achieve the aspiration of Article 44 apart from the codification of Hindu law.
Lining out the history of UCC and the journey of UCC in the judiciary, the following are some points of constituent assembly debates which are then followed by the cases in which the courts have talked about UCC in India and its prospects.
1. Constituent Assembly Debates
Mr. Mohamad Ismail Sahib believed that the idea behind bringing a UCC was to guarantee harmony via uniformity. He believed that in order to attain this harmony, it was not necessary to change the applicability of personal laws which according to him would lead to the opposite of what was sought – discontent and disharmony. Mr. Naziruddin Ahmad was of the view that the movement towards UCC should be gradual and consensual. According to him, the Parliament must assess the consent by interacting through the representatives of the religious communities.
K.M. Munshi put forth his views that like Muslims, many Hindus also believe that personal laws are part of Hinduism – the religion and giving consideration to this belief would hamper any objective of the government to ensure equality and to overcome inequality. And hence, this belief of some should not form a hindrance in achieving the goal of UCC. According to him, people should not practice discrimination under the garb of religion and a UCC would ensure safety from this. Alladi Krishnaswami Ayyar put forth his view that harmony will be ensured by UCC because the main enemy to harmony will be differential treatment in civil matters which will be curbed by a UCC.
Dr. B. R. Ambedkar put forth his viewpoint that even religious laws of Muslims on civil matters were not constant throughout India and the claim that Muslim Law was followed in India as a whole is nullified. For example, up to 1935, the Muslims of NWF Province were subjected not to Sharia Law but were subjected to Hindu Law. He said that due to reasons like this, the Muslim community should not feel that the Muslim law was the one which was applicable in India uniformly. A UCC can have certain portions of Hindu law not because they are of Hindu law but because the suitability and rationale for these provisions may be more.
2. Cases in which Courts have talked about UCC and its prospects
The Bombay High Court in State of Bombay v. Narasu Appa Mali[i], observed that Hindus being punished for bigamy and Muslims being not punished cannot be said to be discrimination on grounds of religion and the sole reason behind this is the legislative intent that Hindu law can be reformed and marriage in it can be limited to one at a time and the same was not felt for Islam by the Legislature.
The Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum [ii] case observed that it is indeed a matter of regret that the aspiration of UCC which is contained in Article 44 of the Constitution has not been implemented. The State despite of having the unquestionable and undeniable authority of chalking out a UCC has not taken any effort to do so. The Supreme Court even went a step ahead to express its desirability of a UCC by stating that it will bring about national cohesion and integration by ending the scope of differential treatment of people according to the religion they follow.
The onus is on the State to bring out a UCC and not on the communities to express their desirability for the same. Political and ideological difficulties should not be hindrances in achieving what is sought in Article 44. The Court believed that UCC would lead to justice to all and also referred to what Dr. Tahir Mahmood stated that Muslims should no longer care about changes and legislations in their personal laws but should aspire towards a common civil code for India and how Islamic laws can contribute in it.
The Supreme Court in Sarla Mudgal v. Union of India[iii] also stressed the inability of the governments to bring out a UCC. It is observed that when more than 80% of the citizens are already under a codified law (Hindu Law) then it does not make sense to leave out the rest of the citizens from the ambit of a uniform civil code. It also stressed an option to a Hindu man to simply convert to Islam to marry two wives at the same time and get away with any punishment for bigamy which seems unfair on the face of it. It observed that opposition cannot be made by communities to challenge UCC. Matters like marriage and succession etc. cannot be said to have religious safeguards under the Right to Freedom of religion. It step a further ahead and requested the State and governments to consider and fulfill what is bestowed upon them under Article 44.
The Supreme Court in Shayara Bano v. Union of India[iv] had observed that it is required by the Constitution of India that the State provides for a UCC to deal with the problems arising out of personal laws. A similar need for UCC was felt by the Apex Court in Jorden Diengdeh v. S.S. Chopra[v]. The Supreme Court in John Vallamattom v. Union of India[vi] expressed the need again and observed that religion and personal law cannot be said to have a relationship in a civilized society. Religious freedom and religion for personal laws are two completely separate and different things according to the Apex Court.
Delhi High Court in a recent judgment of Satprakash Meena v. Alka Meena[vii] observed again the need for UCC and observed that the young people of India should not be left to entangle with the issues arising due to varying provisions of personal laws according to the religions of the citizens regarding the civil matters like marriage etc.
Legal analysis of a prospective Uniform Civil Code
1. Uniform Code v. Common Code
There have been arguments raised regarding a prospective Uniform Civil Code in regard to a common code. Article 44 instructs the State to come up with a ‘Uniform’ Civil Code and this ‘Uniform’ is distinguished from a ‘Common’ code. It can be said that the Article aspires for a system of laws for all communities to be based on uniform principles of social equality and gender justice. Extending personal laws of the majority religion (Hinduism) to all the citizens of the country would be called as ‘Common’ and not ‘Uniform’ code. It can be said that UCC demands for criticism of personal laws to further the principles of social justice and equality but not a complete repeal of the personal laws other than that of the majority’s. Article 44 can be interpreted to eliminate the evils of personal laws but at the same time, not impose personal laws of the majority on the minorities in the name of national integration. Revising personal laws to end practices of sex discrimination etc. will be a positive step towards uniformity in civil laws.[viii]
2. UCC v. Right to Freedom of Religion
It can be argued that Sharia is associated with the Prophet Muhammad and thereby an integral part of Islam. Altering Sharia laws and implementing UCC could easily be seen as a deprivation of Right to Freedom of Religion by Muslims. It can be argued that Sharia being a god-made law cannot be intervened into. Therefore, UCC can easily be seen as something communal and provocative or as a political tool rendering the whole motive of social justice and integrity by UCC futile.[ix] Therefore, it is important to assess the angle of Religion.
Justice Sahai while advocating the idea of UCC stressed on the need for caution to take into account the sentimental aspects. He stressed on the need to calm the sentiments and emotions and also for measures and activities which would bridge the present status to a prospective future UCC.[x] There have been counters to the claims put forward by people who see UCC as a breach of the Right to Freedom of Religion. Right to freedom of religion under Article 25 should not be construed as a right which covers personal laws in civil matters.
Also, Article 25 demands for following other provisions of Part III which involves a strict non-discrimination policy on grounds of sex etc. and therefore exploiting Article 25 to continue practices of discrimination against women in civil matters can be said to be a violation of the principle of equality. Revising personal laws to end discriminatory practices like polygamy, unilateral divorce and the absence of provision for maintenance in case of divorce cannot be said to be violating the Right to Freedom of Religion.[xi]
Over the years, arguments have also been raised that principles of equality, social justice and the right against discrimination should be placed above the religious personal laws which demand the exercise of unjust, unfair and unequal practices. It is rather strange that Muslim women need to suffer from discriminatory practices just because they are Muslim. Advantages of UCC can be proper notice period, registration of marriages and monogamy while retaining the religious customs of marriages in various religions.[xii] This can lead to the proper following of both the right to religion and equality. Even countries like Morocco, Pakistan, Iran, Syria etc. have codified their personal laws in which they have either prohibited or highly limited the practice of polygamy.[xiii]
An important Act which cannot be overlooked while discussing religion and UCC is the Special Marriage Act, 1954 which was applicable to the family affairs of all the citizens irrespective of their religion but in a voluntary manner. It was not according to the personal laws of Hindus or Muslims but interestingly was not objected to. Therefore, the principles and the laws which will be included in the future UCC should be divergent and should be taken from all personal law systems so that thought of biasness does not arise. Overall it would not be wrong to state that the judiciary will welcome UCC with great pleasure. Former CJI SA Bobde also lauded the Goa model of UCC in personal matters of Goans of all religions.
Findings, Conclusion and Suggestions
The courts have repeatedly expressed the need for UCC and the courts have also differentiated between the Right to Freedom of Religion and the applicability of personal laws based on religion. They have drawn a line as to what can be demanded under Articles 25 and 26 and have not observed personal laws as something which can be seen as a fundamental right. This will aid the governments who chose to bring out a UCC to end the discriminatory behavior of some personal law provisions and bring about more equality, integrity and unity.
But, the Courts have remained silent as to what proportion should be the laws in the UCC related to a specific community. Also, it can still be argued on lines of religion if a not-so-equal provision of Hindu law is included in the UCC and thus makes it mandatory for citizens of all religions to abide by it. It cannot be denied that arbitrariness may crawl in UCC and hence it would be very important on the part of the upcoming or present governments to tackle and act on a sensitive issue of Article 44 which has been avoided by the previous governments.
It can be argued that a section of the society will be asked to follow the personal laws of another religion. It can also be felt that the time is not ideal for UCC just like Law Commission in 2017 observed that UCC is not possible due to the huge diversity which India offers and safeguards. But, important intermediary steps need to be taken to come at a stage which can be said to be ‘the ideal time’ for UCC. Religion being a highly sensitive and sentimental issue in India, UCC should not only be non-violative of any laws and fundamental rights but should also respect and care about the feelings of minorities in order to attain its goal of national unity, integrity and social justice. Mingled with so many issues, it can be understood why previous governments have been reluctant to do anything regarding Article 44. Constitutional aspirations should be achieved but national peace and harmony also cannot be ignored.
The need to differentiate between religious faith and religious practices cannot be stated more. Overlooking discriminatory practices in the name of religion cannot be continued anymore. Countries like Germany, Japan, Spain, Portugal, Canada etc. are successfully observing a UCC. The governments need to act on the DPSP of Article 44. A great option can be to pick out the best personal laws from various religions and enact equal laws in case no religious law is appropriate in a certain area. It is also important not to incline entirely towards the majority religion while doing so and therefore neutrality need to be shown and established. A UCC which is not inclined toward a particular community’s personal laws can be the key just like the Special Marriages Act, 1954.
It also cannot be denied that though there have been several opinions of the judiciary regarding the UCC, the entire onus is on the legislature to come up with a UCC. Hence, in the course of the article and the view of the judiciary, it is clear that the State has the power to come up with a UCC and it cannot be compelled by the judiciary. And, in the course of the article, it is also shown how religion is an important aspect but the Right to Freedom of Religion is not a barrier to UCC.
[i] AIR 1952 Bom. 84.
[ii] (1985) 2 SCC 556.
[iii] (1995) 3 SCC 635.
[iv] (2017) 9 SCC 1.
[v] (1985) 3 SCC 62.
[vi] (2003) 6 SCC 611.
[vii] 2021 SCC OnLine Del 3645.
[viii]S.P. Sathe, Uniform Civil Code: Implications of Supreme Court Intervention, Vol. 30 No. 35 Economic and Political Weekly 2165, 2 (1995), https://www.jstor.org/stable/4403156.
[ix]Shabbeer Ahmed, Uniform Civil Code (Article 44 of the Constitution) A Dead Letter, Vol. 67 No. 3 Indian Journal of Political Science 550, 7 (2006), https://www.jstor.org/stable/41856241.
[x]Flavia Agnes, Hindu Men, Monogamy and Uniform Civil Code, Vol. 30 No. 50Economic and Political Weekly 3243, 1 (1995), https://www.jstor.org/stable/4403569.
[xi]S.P. Sathe, Uniform Civil Code: Implications of Supreme Court Intervention, Vol. 30 No. 35 Economic and Political Weekly 2166, 2 (1995), https://www.jstor.org/stable/4403156.
[xii]Leila Seth, A Uniform Civil Code: towards gender justice, Vol. 31 No. 4 India International Centre Quarterly 48, 2 (2005), https://www.jstor.org/stable/23005979.
[xiii]Shabbeer Ahmed, Uniform Civil Code (Article 44 of the Constitution) A Dead Letter, Vol. 67 No. 3 Indian Journal of Political Science 549, 7 (2006), https://www.jstor.org/stable/41856241.
This article has been written by Shivesh Didwania, 2nd year Law student at Maharashtra National Law University, Mumbai.