NATIONAL LAW INSTITUTE

UNIVERSITY
BHOPAL (M.P.)
2014-2019

POLITICAL SCIENCE-II
A
Project
On
Uniform Civil Code: Rationale and Necessity

Submitted to: Submitted by:

Dr.Raka Arya Rachit

Raghuwanshi

2016 BA LLB 92

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TABLE OF CONTENTS

1. Chapter 1: Introduction…………………………………………………………3
1.1 Overview……………………………………………………………3
1.2 Statement of purpose……………………………………………….4
1.3 Research question...............................................................................4
1.4 Research Methodology………………………………………..…..4
2. Chapter 2: Uniform Civil Code and Secularism………………………………..6
3. Chapter 3: Uniform Civil Code and Objections by Minorities.............................9
4. Chapter 4: Uniform Civil Code and Gender Equality …………………..…....12
5. Chapter 5 : Conclusion .......................................................................................16
Bibliography……………………………………………………………………17

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 CHAPTER-1

INTRODUCTION

1.1 OVERVIEW

India is a vast country with a variety of cultures, a number of ethnic groups, a multitude
of languages and a great many religions, sects and sub sects. 1 Fundamental rights in
Constitution of India guarantees every citizen of India irrespective of cast and creed the
freedom to have a distinct language, script or culture of its own and the right to conserve
the same. 2The constitution of India also entitles all the citizens of the nation the freedom
of conscience and the right to freely profess, practice and propagate any religion of their
choice.3 There exist different personal laws for different people according to their own
religion. Broadly, Indian society is divided into four major religions. Majority consisting
of Hindus and minorities being Muslims, Christians and Sikhs. All these communities
have their own personal laws and no one is exempted from abiding by them or opt out of
them. These personal laws operate in matters which are related to divorce, marriage,
maintenance, adoption. In brief these laws operate to all those matters which are included
in “Personal” sphere.

Uniform civil code in India aims to govern all citizens of the nation through same set
secular civil laws irrespective of their caste and religion. It aims to administer upon same
laws on all the sections of society encompassing laws regarding inheritance, marriage,
divorce and so on. The right of citizen to be governed by personal laws is subsided by this
code. Most of the western nations have already adopted this code. Article 44 of the
Constitution of India under directive principles of state policy endeavors to secure for the
citizens a uniform civil code throughout the territory of India.4

However, the actual set up of uniform civil code is highly controversial issue. The
propagators of the code support the code on the fact that it would lead to integration of
whole nation and bring uniformity across the nation. Further the interests of women will
also be better protected under this uniform code. On the other hand this code can also be
1
M S RATANAPRAKASH, Uniform Civil Code- An Ignored Constitutional Imperative, pg. 9.
2
Article 29 ,Constitution of India.
3
Article 25, Constitution of India.
4
KIRAN DESHTA, Uniform Civil Code: in Retrospect and Prospect , pg. 163

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 seen not in consonance with secularism and an interferer in the right of every citizen to
abide by its own values and religious personal laws especially in that of the minority
Muslim community. These issues will be taken up at length later in further chapters.

1.2 STATEMENT OF PURPOSE

Through this project, the researcher wishes to look upon the various aspects of
enactment of uniform civil code that would affect society with special emphasis on
women with respect to gender equality and validity of opposition of the code by
Minority communities such as Muslims. The project would also look into the co-
existence of the code with certain governing principles such as secularism and
multiculturalism. Further ancillary objectives would include delving into the history of
this code, dating back to the colonial era, and also reflecting on the various contentions
concerning the same.

1.3 RESEARCH QUESTIONS

 How far is the opposition of uniform civil code in the name of defence such as
secularism valid?
 Is the disagreement with uniform civil code shown by Muslim community and other
minorities valid?
 To what extent does the uniform civil code promote gender equality and can
enhance the position of women especially those who belong to Muslim community?

1.4 RESEARCH METHODOLOGY

For this project the researcher would use doctrinal method. It would include study of
primary as well as secondary sources such as books, journals, scholarly articles, newspaper
articles and other internet sources. The research would include content analysis of the data
thus collected and thereby reaching a certain conclusion.

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 CHAPTER: 2

UNIFORM CIVIL CODE AND SECULARISM

During the period of 1975-1977, the word ‘secular’ was added to the preamble of
Constitution of India. However, till date it remains undefined. There have been varied views
regarding the term secular. According to Gandhian view, secularism is ‘sarvadharma
sambhava’ which literally means that all religions are possible. India’s first Prime Minister
Pt. Jawaharlal Nehru also agreed with the Gandhian view of secularism and said, “A secular
state does not mean a state where religion is discouraged. It means freedom of religion and
conscience, including freedom for those who have no religion, subject only to their not
interfering with each other, with the basic conception of our state.” Secular state, as
conceived in Indian context does not mean it is anti religious or irreligious. It means it is non-
religious. It means equidistance of state from all the religions. However, the western concept
of secularism is that there should be no discrimination against an individual on the basis of
their religion or their forms of worship and all the citizens are equal before law.

There is ambiguity in Indian constitution on the question of reforms in personal laws. Those
who oppose the reform, oppose on the basis of freedom to profess and propagate religion of
one’s choice. However, the supporters of reform put forward the principle of all the citizens
of India being equal in front of law. There is thus a question concerning the hierarchy of
rights-can the right to be governed under one’s personal laws have precedence to the right to
be equal before law.

A serious debate was raised in constituent assembly during drafting of article regarding
uniform civil code. Eminent persons like K.M. Munshi, Alladi Krishna, and Dr. Ambedkar
were in favour of uniform civil code and rebutted the arguments against it being inconsistent
with the doctrine of secularism and infringing upon the rights of minorities. In turn they
favored the code for it being the instrument of homogenizing citizenship. The debate went on
and the constituent assembly could not come to a settlement and thus uniform civil code was
included in Directive principles under article 44 of constitution of India as a goal to be
implemented by future governments.

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This concept of secularism requires one to ask question whether the uniform civil code
concepts is in conflict with the real concept of secularism. Drafting and implementation of
uniform civil code is argued over the fact that in case of its implementation it would take into
its ambit the whole gamut of family, marriage divorce, maintenance, trusts, and gifts etc. and
therefore are not in consonance with the fundamental right of choosing one’s own religion.
However, it has to be established whether these areas are actually religious in nature? They
all cover the field of secular activities.

The famous Shah Bano’s judgement where a 65 year old Muslim women filed a petition in a
court in order to seek alimony from her husband who left her after 40 years of marriage for
another women. According to Muslim law she was entitled to get maintenance for 3 months.
However, the court ruled that the section 125 of criminal procedure code will override the
Muslim law. After this judgement there was huge row in the country and alleging Supreme
Court that it had exceeded its jurisdiction by interfering with personal laws of Muslims.
Initially the government tried to take stand for the supreme court of India however they had
to submit to the pressures of the community and brought out the bill will superseded the
judgement and favored Muslim law thereby boosting the morale of fundamentalists.

The stand that government took was that the judgement tended to interfere with the personal
rights of a community which is not right as India being a secular nation guarantees the
freedom of religion and it is right of members of a community to be governed by their own
personal laws. This ideology can be easily refuted by the argument that institutions such
as marriage are in no way concerned with the religion, but are purely of secular nature.
Principles regulating marriage comes under the ambit of social development and not
under that of religion. As family is the basic unit of society and society is the basic unit
of nation and thus in what way society should develop is the problem of society and not
of the religion.5 This is the actual concept of law. Law recognizes different problems in
different spheres of society and then makes a legislation upon it. Maintenance for instance
comes under the sphere of society as it is his society who has to think what should be done
for weaker section of society. Following this cue all the matters governed by personal laws
come under the domain of social sphere. And thus the rules governing marriage should be the
rules governing divorce, inheritance, maintenance , succession etc as they too are the
problems of society and purely secular in nature. Therefore, there is no harm in uniform civil
code for such matters are in no way infringing upon the fundamental right given to the
5
M S RATANAPRAKASH, Uniform Civil Code- An Ignored Constitutional Imperative, pg. 34

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citizens under article 25. In-turn the idea of retaining the personal laws are against the
doctrine of secularism and equality before law.

The members of constituent assembly were in no case communal minded and were
completely secular. Their wisdom has been overridden by the shortsighted generation.
Further the policy of divide and rule is again being utilized by the politician in present
scenario in order to preserve their vote bank. Retention of personal laws cannot be at all
called secular. Uniform civil code in not in conflict with religion or the personal laws. Just as
the practices of sati and untouchability have been abolished in order to be in compliance with
the modern society. Similarly, The Muslim laws need to be changed so that it comes in
conformity with the present time and needs of the society.

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 CHAPTER-3

UNIFORM CIVIL CODE AND OBJECTIONS BY MINORITIEES

In a case where a Hindu changed his religion to Islam so that he could keep his record wife
while his first wife was alive, the urgency of the need of uniform code across the nation was
felt by the supreme court of India. Most of the communities have minor objections to the
uniform civil code except Muslims. All they want is to protect their traditions, which are in-
turn, very few in number. These views of the minorities can be taken into consideration under
the code if they do not conflict the code and can be accommodated unless they harm the spirit
of Uniform Civil Code.

The actual objections against the code comes from the Muslim community. Muslim
community at large can hardly be considered to be interested in uniform civil code. There are
major three groups:

 The reformists like Ashgar Ali and followers.

 Contemporary jurists like Amir Ali, Sir Syed Ahmed, Badruddin tayyabji
 The fundamentalists like Mullas, Maulavis and Ulemas.

The major objections from the Muslim community is based on the theory that the Muslim law
termed as Sharia is basically of Divine origin and the law that is contained in Quran touches
every aspect of human life. So the legislature of any country consisting of mortals is in no
way competent enough to touch the core of Muslim law and enact it. Another objection raised
by Muslim community is that the enactment of uniform civil code will be a threat to their
identity. In a diverse land such as India admission of a uniform code across its length and
breadth would automatically lead to loss in their identity on the cost of maintaining the ideals
and principles of majority.

The next plank of objection is based on sharia law. According to them Sharia law is
uniformly applicable to all the Muslims across the nation. The law in itself is self contained,
pervasive and inclusive in nature. It is exhaustive in nature and covers all the spheres of
Muslim life and thus they do not need any other uniform code governing them.

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These arguments can be rebutted if they are analyzed closely. The argument that Muslim
community provides that the uniform code interferes with their personal law and it is immune
from sovereign’s intervention cannot be accepted as the right to be governed under personal
law is never included under the fundamental right to profess religion of one’s choice. In
addition, even if it comes under the ambit of freedom of religion it does not envelop the right
to effect the denial of equality.

Further, the objection on the basis of losing the identity of community is futile as identity
does not depend upon the external appearance of the community but on its internal strength.
It is not dependent on the law that governs them. Narendra modi in a debate based on this
said, “When the Muslims go to the US, how come they can live under an uniform code, does
it violate their Muslim identity?” This is to say hat in no way a uniform code would take
away the cultural identity of the community.

The final refutation comes to the argument of Sharia law being inclusive and exhaustive law.
In reality, the situation is different. When the dissolution of Muslim marriage act, 1939 was
under discussion it was found that, there was no provision under the Hanafi law in case of
demand of divorce by wife. Then it was decided that in every case where the provision is not
available the provision would be taken from some other school on the basis of equity. Thus
the concept of divorce on demand of women was taken from Mailiki School. This very
instance negates the argument that sharia law is inclusive of all the laws based on every
aspect human life and legislation is required to make laws on the provisions that are absent
from the law. This also proved that there was no divine intervention in making of Muslim law
and the law has been made by ordinary legislature. The present Muslim law followed is
merely the defacement of law laid down in Quran and needs an urgent revision. Some of the
curses urgently need to be weeded out of the system include polygamy, lack of provision of
maintenance for divorcee and unilateral divorce.

Our country is characterized by multi culture and multi religion. The majority community of
the society-the Hindu community has already undergone changes in their personal laws
inspite of presence of fundamentalists who strongly opposed any changes in their religious
laws. Most of the puranic notions amended and modernized reforms were made. For instance,
marriage was converted into a purely secular institution from being a sacrament. It was
expected that with the changes in major community the path of uniform civil code would be

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much easier but the conditions are different. The minorities are in no way in support of the
code.

Sir Shahbuddin gave certain reasons for the objections raised against the code. According to
him there is absolutely no connection between uniformity and unity in a society with plural
culture. Even the Hindu law is not uniform and there is always an option of exception.
Therefore, there is no point in establishing a uniform code. Further this code won’t only
affect Muslims and several other minorities but also various tribes who follow their own
personal and customary laws.

There still is a ray of hope due to presence of certain rationalist Muslim jurists such as justice
Chhagla and A.A.A. Faizi who believe that personal laws are different from religion and the
institutions of marriage, divorce, maintenance etc are purely secular in nature. And the state
can legally and validly make legislations upon them.

This entire controversy can only be sought out by mutual discussion between the
communities. Muslims need to leave aside their bias and prejudice and reflect in line with
integration of the nation. There is also a need to educate a large part of Muslim community
that is poor and illiterate so as bring them in majority of public life and eliminate the
opposition against the code. Else the entire situation would lead to a vicious circle-persistence
of majority community in favor of the code leading to resentment on behalf of minority and
persistent refusal of minority community leading to resentment in majority community.

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 CHAPTER 4

UNIFORM CIVIL CODE AND GENDER EQUALITY

The Shah Bano judgement based on the demand of maintenance by wife after the divorce
lead the entire nation to probe upon the concept of uniform civil code. The Supreme Court
upheld the rights of maintenance of Muslim women. The case got coverage from entire
media. Fundamentalists of Muslim community protested against the decision on the basis that
it goes against the personal laws of Muslims and thus intervenes with their freedom of
religion.

The personal laws regarding marriage, custody of children, divorce and maintenance are
different in every community. Although we are a secular state yet the continuous demand
from women in the society for a uniform civil code has not yet been fulfilled. Women mainly
of Muslim community have to face extreme discrimination in personal laws on the basis of
their religion as their personal laws are not in tune with the developed state of society. After
the Shah Bano’s judgement the government had to legislate a law due to community
pressures that nullified the Supreme Court judgement. The entire media talked about it.
Newspapers welcomed the articles based on the judgement and there were roaring debates
going on across the nation .However, this would not have been the case if it was Hindu
woman.

There are various rights that women are supposed to have but they are denied. They are
denied a fair share in inheritance and almost negligible share in matrimonial property. Most
of the divorced women often do not get their share of maintenance after the divorce and even
if they get it is bare minimum.

The debate for uniform civil code is not contemporary in nature. It dates back to the time of
independence. While the debate was going on in the constituent assembly, women members
of the assembly like Rajkumari Amrit Kaur, Hansa Mehta and others rejected the policy of
putting the uniform civil code in the directive principles instead of enacting it. However, their
opinion was submerged under the pressure of the argument based on protection of minorities’
rights and identity.

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There have been various judgement which have proved to be beneficial to women of Muslim
community but there is still is lack of awareness amongst the women section of society.
Petitions have been filed by certain initiative taking women bringing forth the problems that
they have been facing due to their personal laws.

The most significant case is that filed by Shehnaaz Sheikh of Bombay who filed a petition
against the constitutional validity of Muslim personal law. She argues that the personal laws
for Muslim community discriminate among Muslim men and women and therefore violate
the right to equality guaranteed under article 14 of the constitution. Further, she says that
legislature has passed various legislation that tend to benefit Hindu women but nothing of
that sort has been done to improve the condition of Muslim women. This again in turn
violates the right to equality. The petition was later removed by her due to the threats that she
received after filing of the petition.

Another Muslim women also filed a petition with her husband based on adoption laws under
personal laws of Muslims. It also referred to initiative of government to reform Hindu laws
and thereby benefitting the Hindu women and lack of such reform in any Muslim law.

Apart from Muslim women, petitions have also been filed by women of other communities,
who seek to be at par with men, and thus uphold the right to equality. There have been cases
against inheritance laws in Kerala that discriminate against the women in Christian society,
Hindu joint family property laws whereby daughters are discriminated from sons in terms of
their right to have share in property, and the cases against Indian Divorce act that taken into
its ambit the Christian women and is unfair to them.

The section of society that is worst affected by these personal laws are women. It can easily
be proved through two of the many examples that most of the fundamentalists are against the
uniform civil code as they do not want any enhancement in their status especially not above
the men.

During the period of late 50s, the law minister of Kerala Justice Krishna Iyer tried to
introduce reforms in inheritance laws in Kerala that discriminated Christian women. But he
could not pass the bill as he was not only opposed by the Christian leaders but also by
Muslim leaders. The reason behind this was that any reform in any of the personal laws in
one community would pave the way to reforms in personal laws of other community. And as

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mentioned above the fundamentalists were more interested in maintaining the patriarchal
concept of society and keeping their laws as they were.

Another instance was when a Hindu men filed a petition in the court against the Hindu
marriage act claiming that there is inequality among the personal laws as a Muslim men is
allowed to have four wives while a Hindu can only have one. Thus this is against the right to
equality.

Thus it can be seen that personal laws are dissimilar from each other and this discrimination
is perceived in a different way depending upon the gender. For the Muslim female
community, their personal laws place them at a lower level than females of other societies
while in case of men, they bestow ‘benefits’ upon them. However in both cases the
contingent issue being article 14.

However, Muslim community also has undergone various progressive changes during past
centuries. These include transformation of marriage into a civil contract where the legal status
of the wife can be maintained as it was before marriage. According to laws wife can also
resend her full legal capacity to enter into a contract and can acquire, hold and dispose of
property with reference to her husband. A right has been given to the wife to demand a
settlement from her husband known as mehr as an essential precondition of marriage. The
wife’s right to hizamat which is custody of young children in case she gets separated from her
husband and her right to get maintenance from her husband. In furtherance with these rights
some more rights are granted to women such as the right to remarry after divorce on
widowhood or the right to specify the conditions of marriage contract.

Still, the major question to be asked is what stand should be taken by women about the
personal laws. The majorities view is to demand for uniform civil code. However, the fight to
get a uniform code is an extensive one and in no way can be achieved anytime soon. The
immediate objective thus should be demand for liberalization of the personal laws that are not
in consonance with modern society and other laws.

Looking at the general picture the women’s movement for uniform civil code is logical as the
stake that this particular section of society has in achieving a uniform code is pretty obvious.
No religion in its actual sense actual sense supports gender equality and thus there is urgent
need of uniform civil code.

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 CHAPTER: 5

CONCLUSION

After consideration of all the facets of uniform civil code the major question is whether there
is absolute necessity of uniform civil code across the nation. Although it has already been
incorporated in the constitution as directive principle and thus should have been framed yet
there is lack of initiative on behalf of political parties in power. They have not been true to
the constitution. It was their duty to enlighten the citizenry of the nation on this very topic.
Still they have not even touched this topic and are waiting for the demand from the
communities concerned.
Indian society is extremely diverse and fragmented and in order to bring the society together
it is extremely necessary to have uniform civil code. Further if personal laws of few
communities are allowed to continue then there would be same demand from other
communities to have their own personal laws which would further fragment the nation in
terms of laws.
However, good signs seem to be coming from the minorities in favor of the code. Some of
the Muslim jurists have also accepted that Muslim law needs certain amendments urgently as
the law has not been able to keep pace with developing societies. The only change that is
needed is to educate the illiterate and the poverty-stricken class of Muslims who easily are
persuaded by the ideals of fundamentalists. Another requirement is to bring about a change in
the view of Muslims that there law is of divine origin and thus sovereign should not interfere.
There is a huge misconception among the minorities that the uniform civil code that would be
enacted would be based upon Hindu personal law. However, this is not true. While the Hindu
code bill was being framed many of the laws were taken from other personal laws of various
communities. The uniform law would be Indian law based on consensus of every community
and the personal laws of all the communities would be taken into consideration.
No community should be left with a doubt that the code won’t work or their interests won’t
be taken into consideration while framing it. And to achieve this goal it is extremely
necessary to remove all the prejudices and bias from the minds of minority communities. It
won’t be a Hindu law or a Muslim law but simply a common law consisting of provisions
from all the systems of personal law.

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 BIBLIOGRAPHY

BOOKS:
 M S RATANAPRAKASH, Uniform Civil Code- An Ignored Constitutional
Imperative
 KIRAN DESHTA, Uniform Civil Code: in Retrospect and Prospect

ARTICLES:

 WERNER MENSKI, The Uniform Civil Code Debate in Indian Law: New
Developments and Changing Agenda,
http://www.germanlawjournal.com/pdfs/Vol09No03/PDF_Vol_09_No_03_211-
250_Articles_Menski.pdf
 SANGHAMITRA PADEY, Secularism and Justice : A review of supreme court
judgement.
http://www.epw.in/system/files/pdf/2004_39/46-47/Secularism_and_Justice.pdf

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