Strike a Fine Balance, have a just Civil Code

Table of Contents

Context: The article discusses the decision made by the Law Commission of India to seek public views and proposals on the Uniform Civil Code (UCC). The article mentions that this decision comes after a five-year hiatus during which the Commission had previously concluded that the UCC was neither necessary nor desirable. The UCC is a highly debated and politically charged issue in India. The article suggests that while the enactment of the UCC in a gradual manner would align with the spirit of Article 44 of the Indian Constitution, there is a specific consideration that the Commission should take into account. This consideration likely refers to the benchmark set by the Constitution of India. The article argues that the Law Commission should aim to eliminate only those practices that do not meet the constitutional standards. In other words, the Commission should focus on eliminating practices that are inconsistent with the Constitution rather than imposing a uniform code for the sake of uniformity. The article seems to emphasise the importance of upholding the constitutional principles while addressing the issue of the Uniform Civil Code in India.

Background

What is Uniform Civil Code (UCC)?

The UCC is a proposed legal framework that aims to provide a common set of laws governing personal matters such as marriage, divorce, inheritance, and adoption for all citizens, regardless of their religion.
The UCC is intended to replace the existing personal laws that are based on religious customs and traditions.

Historical background of UCC:

Constitutional provision on UCC:
- The Uniform civil code is mentioned in article 44 of the Indian constitution of 1950 as a directive principle of state policy (DPSP).
- Article 44 states that “The State shall endeavour to secure the citizens a Uniform Civil Code (UCC) throughout the territory of India.”
Current state of UCC in India:
- At present, Goa is the only state in India with a uniform civil code.
- The Portuguese Civil Code of 1867, is applicable to all the people having their domicile in Goa. There is no uniform civil code in the rest of the country.
- Apart from the above the government has brought several legislations in line with the UCC such as the amendments to Hindu code bills (They provide uniformity in legal provisions to all religions who are not Muslim, Parsi, Jews, and Christians) and the Special Marriage Act, 1954 (It provides a form of civil marriage to any citizen irrespective of religion).
Need for UCC in India:
- Different religious communities in India are currently governed by different personal laws.
- For example, Hindu personal law is codified in “four Hindi code bills”: the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. The term ‘Hindu’ also includes Sikhs, Jains and Buddhists for the purpose of these laws.
- Certain aspects of Muslim personal law are expressly recognised in India in acts such as the Shariat Application Act and Dissolution of Muslim Marriages Act.
- Christian marriages and divorces are governed by the Indian Christian Marriages Act and the Indian Divorce Act, while Zoroastrians are subject to the Parsi Marriage and Divorce Act.
- This has led to the emergence of several social evils in the society, especially those adversely impacting the dignity of women.
- The women have fewer rights than the men under these laws. Also, the religious personal laws give birth to many taboos; for instance, patriarchy, early marriage, dowry, domestic violence etc.
- Thus, a uniform personal law will bring about uniformity and undo all the evils that have crept inside our existing personal laws.
Arguments in favour of UCC:
- Equal status to all Citizens: A Uniform Civil Code would help towards providing equal status to all citizens irrespective of the community they belong to. It is believed that a secular democratic republic, in order to provide equal status to its citizens, must have a common civil and personal law irrespective of their religion, class, caste, gender, etc.
- Promote Gender Parity and Justice: It is generally observed that in almost all religions, men are granted top preferential status in matters of succession and inheritance which results in discrimination towards women. Thus, a Uniform civil code will do away with practices which undermine a woman’s right to equality.
  - Under the Hindu law, the Mitakshara branch of law denied to a Hindu daughter a right by birth in the joint family estate.
  - Islamic law prescribes that generally a man’s share of the inheritance is double that of a woman in the same degree of relationship to the deceased.
  - Christian women could not obtain divorce on the grounds of adultery committed by the husband, it had to be coupled with cruelty, bestiality, and sodomy. On the other hand, Christian husbands could simply declare their wives as adulteresses and divorce them.
- End contentious provisions of Personal laws: The existing personal laws of all religions are based upon the upper-class patriarchal notions of the society. Thus, the codification and implementation of the Uniform Civil Code will destroy the sanctity of the patriarchal orthodox people or will oppose it profusely.
- Promote national integration: During constituent assembly debates, Shri Alladi Krishnaswamy Ayyar had talked about the problems of having excessive cultural relativity. He believed that having separate personal laws would limit the scope of reform and breeds communalism. Single secular law on various personal matters would raise a sense of oneness and the national spirit.
- Accommodate the aspirations of the young population: The social attitude and aspiration of the young population is shaped by universal and global principles of equality, humanity and modernity. Thus, the enactment of Uniform Civil Code will help in utilizing their full potential towards nation building.
- Simplification of laws: The UCC will simplify the complex laws around marriage ceremonies, inheritance, succession, adoptions making them one for all. This will also help in reducing the burden on the Judiciary.
- Sign of a modern Progressive Nation: Personal laws were formulated in specific spatio-temporal context and should not stand still in a changed time and context. Having UCC will help the society move forward based on the modern constitutional value system of liberty, equality and justice.

Arguments against UCC:

Practical difficulties due to diversity: India has a diverse culture which is spread across different religions, sects, caste, states etc. Thus, this diversity makes it difficult to implement a uniform set of laws on personal issues like marriage, divorce, inheritance and maintenance.
Perception among minorities: A belief persists among minorities that Uniform Civil Code will neglect their traditions and impose rules which will be mainly influenced by the majority religious communities.
- For example, AIMPLB calls Uniform Civil Code unconstitutional, anti-minorities and has said it will oppose any attempt towards establishing Uniform civil code in India.
Violation of Fundamental rights: A UCC is seen, by many, as a contradiction to the fundamental rights guaranteed under Article 25 (individual’s fundamental right to religion), Article 26(b) (right of each religious denomination to “manage its own affairs in matters of religion), and Article 29 (right to conserve distinctive culture).
Issues with drafting of UCC: The implementation of Uniform Civil Code is a very demanding task as it will bring many changes like adopting expansive interpretations on marriage, maintenance, adoption and succession. The task is very demanding and the government would need to be sensitive and unbiased while dealing with the minority and majority communities, otherwise it would turn out to be more disastrous and can lead to riots and communal violence.
Not supported by Law commission: In 2018, the 21^st Law Commission in a consultation paper held that UCC is neither necessary nor desirable at this stage. Rather it suggested the codification of all personal laws so that prejudices and stereotypes in every one of them would come to light and could be tested on the anvil of fundamental rights of the Constitution.
No uniformity even in civil laws relating to non-religious matters: Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc. States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these civil laws.

The Judiciary on Uniform Civil Code (UCC)

Shah Bano Case (1985): The Supreme Court held that Parliament should outline the contours of a common civil code as it is an instrument that facilitates national harmony and equality before law.
Jordan Diengdeh case (1985): The court opined and observed for the reformation of law of marriages by having a uniform law applicable to all people irrespective of religion and caste.
Sarla Mudgal Case (1995): The Supreme Court of India directed the Ministry of Law and Justice to reflect the steps taken and efforts made, by the Government of India, towards securing a “uniform civil code” for the citizens of India.
John Vallamattom case (2003): The Supreme Court held “It is regrettable that Article 44 of the Constitution has not entered into force. A common civil code will help the cause of national integration by removing contradictions based on ideologies”.

Decoding the Editorial

Autonomy vs Authority:

The article discusses the question of personal laws in India and the conflict between personal and religious autonomy versus the state’s authority to reform familial relations.
Each religious group in India has cultural autonomy, and it is argued that communities should take the initiative to seek reforms within their own personal laws.
The article mentions examples of voluntary adoption of the Uniform Civil Code (UCC) through acts like the Special Marriage Act, 1954, and the Indian Succession Act, 1925.
- However, it criticizes recent laws like the “love jihad laws” that prohibit inter-faith marriages, as they are seen to violate the spirit of the Special Marriage Act.
The article also highlights regional differences in personal laws, such as the abolition of the Hindu Joint Family in Kerala in 1975 and varying laws regarding Muslim marriage and divorces in different states. It points out that currently, not only Muslims but also Hindus, Jains, Buddhists, Sikhs, Parsis, and Jews are governed by their own personal laws based on their religious identity.
The article further discusses the application of personal laws in various situations, such as how Hindus marrying under the Special Marriage Act continue to be governed by Hindu Personal Law, while Muslims marrying under the same act are no longer governed by Muslim Personal Law.
Regarding the Indian Constitution, the statement suggests that it is a culmination of India’s long-standing integrative traditions rather than being the starting point.
It mentions the commitment to cultural accommodation in Article 29(1) of the Constitution, which protects the distinctive culture of all citizens.
However, it poses a question about whether Muslims in India would argue that practices like polygamy or arbitrary unilateral divorce, even in anger or while intoxicated, could be considered part of their culture.

Unity rather than Uniformity:

The focus should be on unity rather than uniformity when considering the implementation of a Uniform Civil Code (UCC) in India.
The Law Commission should recommend a UCC that reflects India’s “mosaic model” of multiculturalism, taking into account the diverse and multicultural nature of the country.
It is crucial to avoid homogenizing identities and instead embrace the flourishing diversity present in India, as opposed to the American model of multiculturalism, which tends to prioritize uniformity.
The historical influence of the British is acknowledged for their efforts to create homogeneity among Hindus and Muslims, undermining the heterogeneity within these religious communities.
However, the Indian Constitution upholds the right to cultural autonomy and defends the Indian model of multiculturalism.
The Constitution offers two major approaches to accommodate differences: integrationist and restricted multicultural.
- While affirmative action policies often fall under the integrationist approach, providing state assistance to minority cultures is sometimes viewed as an illegitimate concession or appeasement of minorities.
- This creates a situation where cultural differences lack strong constitutional norms. It is important to strike a balance between cultural accommodation and the pursuit of justice.
- The 21st Law Commission (2015-18) favoured equality between men and women within communities rather than seeking equality between communities.
- The primary goal should be a just legal code that ensures equality and fairness for all, rather than merely enforcing uniformity.

From the article, we can infer several points:

The Law Commission of India is proposing an overhaul and secularization of various socio-religious-cultural practices that have been long-standing traditions in different religious and ethnic communities in India.
The article acknowledges that implementing such reforms will not be without challenges. It recognizes that communities may feel threatened by these proposed changes, and there is a concern about the rise of reactive culturalism among different communities, including Muslims. It suggests that the Law Commission should be mindful of not contributing to such reactive culturalism.
The article highlights the distinction between the Muslim Personal Law (MPL) and Islam itself.
It characterizes the MPL as a jurist-given law rather than a divine law. It mentions that the MPL has influences from Anglo-Muhammadan law and that some aspects may have been derived from erroneously translated secondary sources rather than directly from the Quran and Sunna of the Prophet. The rigidity in the MPL introduced by British courts and the acceptance of MPL reforms by the Ulema in 1939 are also mentioned.
It suggests that the Muslim clergy should take a leading role in the reform process of the MPL. It proposes that they identify discriminatory and oppressive issues within the MPL and adopt the views of progressive jurists for reform.
The article emphasizes the importance of the Law Commission striking a fine balance in implementing these reforms. It mentions the value of social difference being relational and a product of social processes. It suggests that the Commission should aim to eliminate only those practices that do not meet the benchmarks set by the Constitution.

Way Forward

A Uniform Civil Code can only emerge through an evolutionary process, which preserves India’s rich cultural heritage. The government will have to work hard to build trust among all the sections of the society. After bringing consensus among different sections the government could try and bring separate aspects such as marriage, adoption, succession and maintenance into Uniform civil code in stages.
Dr. B.R. Ambedkar’s Council had propounded a middle path which stated that 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.
The law commission of India had opined that given India’s diversity in religion and culture we do not require uniformity of laws. What is required is reforms in all the personal laws to make them free of gender bias. It suggested that if each existing law governing different communities is made progressive and gender just, there won’t be any requirement for a uniform civil code.