UNIFORM CIVIL CODE IN INDIA.

INTRODUCTION:

 At the time of inception of constitutionalism in India the Framers of constitution were with the
intention to have Uniform civil code for the citizens of India same is represented by Article 44 of
the Constitution of India which lays down that the State shall work towards administering the
same set of civil laws to govern people belonging to different regions and religions. The uniform
civil code for all the citizens of India despite their religion or race or ethnicity in compliance
with the constitutional mandate under Article 44.  is a much debated and controversial topic of a
suitable legislation.

Though Dr. B.R. Ambedkar was an extensive supporter of the Uniform Civil Code, he couldn’t
get it through more than a status of Directive Principle due to opposition from the members. The
state has been entrusted with this voluminous task. However, no significant steps have been
taken by any government till now.

The co-existence of personal laws alongside a principle that outlines the UCC as an ideal to
strive for. Some argues for a UCC while others argue against it. Advocates for the UCC argue
that the varying personal laws allow for gender discriminatory practices. Those against the UCC
say it will impose practices of Hinduism, as it is the dominant religious group, on the entire
nation. Others argue that there is no guarantee that even a common code will protect gender
equality.

A number of judgments in the Supreme Court have shown a marked inclination towards the
establishment toward the UCC, no concrete step has been taken so far in this regard, in part due
to the unresolved debate regarding the freedom of religion granted by Article 25 and 26,
moreover Supreme Court in its recent observations has made it clear a UCC does not impinge
upon the 'right to religion'. The present paper attempts to show the pros and cons of UCC in
India.

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DEFINITION:

Uniform Civil Code generally refers to that part of law which deals with family affairs of an
individual and denotes uniform law for all citizens, irrespective of his/her religion, caste or tribe.
The need for a uniform civil code is inscribed in Article 44 (Article 35 in the draft constitution).
This article is included in Part IV of the Constitution dealing with the directive principles of state
policy. The legal nature of the Directive Principles is such that it cannot be enforced by any court
and therefore these are non judicial rights. The Constitution further calls upon the State to apply
these principles in making laws as these principles are fundamental in the governance of the
country. Article 44, which deals with the Uniform Civil Code states: “The State shall endeavor to
secure for the citizens, a uniform civil code throughout the territory of India”. 1 The objective of
this article is to effect an integration of India by bringing all communities into a common
platform which is at present governed by personal laws which do not form the essence of any
religion.

BACKGROUND TO THE UNIFORM CIVIL CODE:

At the time of Independence from British rule and in the aftermath of Partition, the Constitution
framers agreed that instituting a Uniform Civil Code and abolishing personal laws would risk
launching the newly formed nation into chaos. At the same time, legislators within the Assembly
argued for a common civil code. Recognizing the value of a common civil code and yet bearing
in mind the implausibility of instituting such a code given the realities on the ground, the
Constituent Assembly compromised by including the following General Directive in Article 44
of the Indian Constitution.

The Lex Loci Report of October, 1840 emphasized on the necessity for codification of Indian
law relating to crimes, evidences, contract etc., but it recommended that personal law
of Hindus and Muslims should be kept outside such codification. A formal declaration of the
policy was made by Warren Hastings in the Administration of Justice Regulation, 1780, where it
was pronounced that while dealing with disputes of marriage, divorce or inheritance, people
would be governed by their personal laws.2

1
Article 44, Constitution of India.
2
https://www.worldwidejournals.com/global-journal-for-research-analysis GJRA/file.php?
val=September_2013_1379480988_82bba_57.pdf (Last assessed on: 26-14-2017).

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Post-colonial period, the framers of the Indian constitution and Mr. Nehru, were convinced that a
certain amount of modernisation is required before a uniform civil code is imposed on citizens
belonging to different religions including Muslims.3 The issue was sensitive and a uniform civil
code could be seen by the citizens as an invasion on their culture and religion. The framers felt
that certain time should elapse before such a proposal can be undertaken.

CONTROVERSY RELATED TO UNIFORM CIVIL CODE:

In India personal laws are the main cause of communal conflict among people. One of the basic
problems with the absence of a Uniform Civil Code applicable throughout India is that it goes
against the concept of equality which is one of the basic tenets of our Constitution. By having
different personal laws for different religions we are, in a sense undermining the credibility of
the secular ethos of India.

A Uniform Civil Code will also simplify the cumbersome legal processes involved with the
matters governed by personal laws. It will also go a long way in promoting the causes of
secularism, equality and national integration. It will also make the separation of the State from
the religion more complete and meaningful. The personal laws of all including Hindus can be
changed timely. In referring personal laws of all religion we can see the male dominance. The
issue of personal laws and the Uniform Civil Code was now firmly embedded in conflictual
communal politics.

The 1980s were a period of growing crisis in India. The secular consensus had broken down and
communal conflicts were escalating, with both majority and minority fundamentalism on the rise
(Upadhyay 1992). Pratibha Jain suggests amending the Constitution as an alternative to the
uniform civil code.4 However, it is imperative to look into the other side also. Still, time is not
mature for the implementation of the Uniform Civil Code. Polarization in the society along
religious lines is still very much alive in our country. The destruction of mosques and temples,
communal riots are clear pointers towards the fact that India is yet to achieve the level of a stable
and mature secular democracy. If the Uniform Civil Code is introduced in such a society, it may
lead to further complications.

3
Constitution Assembly Debate for Uniform Civil Code.
4
Prabodh Kumar Garg,Muslim Personal Law, Uniform Civil Code and Judicial Activism- A Critical Study,
Sodhganga (Published on:2014).

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 Moreover, for Indians, religion is not just a casual part of their personal life. Here religion plays
a primary role in the lives of most of the people. Therefore the introduction of the civil code
should be a well-thought out and careful process. Another argument against the Uniform Civil
Code is that its imposition will be a violation of Fundamental Rights envisaged by the
Constitution. . Fundamental Rights are judicial rights and are regarded as the most important
rights guaranteed by the Constitution. Article 26(b)5 says, “Subject to public order, morality and
health, every religious denomination or any section thereof shall have the right to manage its
own affairs in matters of religion.”

Those people who argue against the Uniform Civil Code are of the opinion that for believers,
matters like marriage, divorce and inheritance are religious affairs and the Constitution
guarantees freedom of such activities and therefore the Uniform Civil Code will be a violation of
that. This issue has already been a matter of intense debate as the Supreme Court has observed
that marriage, succession and the like matters of a secular character cannot be brought within the
guarantee enshrined under Article 25 and 26 of the Constitution. While delivering the judgment
on the Indian Succession Act, Section 118, the Supreme Court was categorical in asserting that
the right to follow one’s personal law is not a Fundamental Right. 6 Their argument is that this
code will affect the religious freedom of minorities. They claim that the sentiments of the
minorities are not considered while implementing a common law. There are political parties and
leaders who are always eager to hijack such issues to improve their vote banks. We must
depoliticize the uniform civil code.

JUDICIAL PRONOUNCEMENTS:

The judiciary from time to time, has responded favorably for its enforcement. The Supreme
Court in Sarala Mudgal, President, Kalyani v. Union of India 7 is a pointer to unwarranted and
uncalled ‘judicial Activism'. A unified code is imperative both for protection of the oppressed
and promotion of national unity and solidarity.  The judge in this case opined that it is high time
that a uniform civil code be introduced and that Art.44 be taken out of cold-storage.

5
Constitution of India.
6
Supra Footnote 2.
7
(1955) 3 SCC 635.

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In Md. Ahmed Khan v. Shah Bano Begum,8 Chief Justice, Y.V. Chandrachud observed that the
whole discourse on Uniform Civil Code is marked with number of illusions. The first illusion is
that a common civil code will help the cause of national integration. In this case, a Muslim
women claimed for maintenance form her husband under S.125 of Cr.P.C. after she was given
triple talaq pronouncements by her husband. The Supreme Court held that Muslim Women have
a right to get maintenance from her husband under s.125 and commented that Art.44 (3) of the
Constitution of India has remained in the dead light.

The division bench of the Calcutta High court in Naresh Chandra Bose v. Sachindra Nath Deb,9
observed that observed that article 44 of the constitution itself recognized the existence of
different sets of personal Laws for different communities.

Moreover the constituent Assembly debates on the enactment of Article 44 of the Constitution
reveal that all the participants in the debate favouring the Uniform Civil Code were of the view
that Uniform Civil Code is necessary for national integration.

SUGGESTION:

According to my view point after studying the controversy of UCC in India a secular India needs
a uniform civil code but urgent need to force any uniform civil code on an unwilling population
is not necessary. Most people are not ready to adopt truly secular laws separated from religious
customs. The Uniform Civil Code can be successfully introduced only after achieving improved
levels of literacy, awareness on various socio-political issues, enlightened discussions and
increased social mobility. Moreover, a committee of eminent jurists should be formed to
maintain uniformity and the sentiments of the particular community should not be hurt. The
ultimate aim of reforming uniform civil code should be for ensuring equality, unity and integrity
of the nation.

CONCLUSION:

I would like to conclude that, taking a view from current political and social scenario, some of
the more progressive and liberal sections have started raising a forceful demand for a unified
civil code. This request is additionally in accordance with what the Constitution visualizes as an
8
1985 AIR 945.
9
AIR 1956 Cal 224.

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important objective should have been accomplished to truly secure all subjects equity and
uniformity. A uniform civil code will not only change the entire perception of how families are
governed but also change the lives of millions by filling the lacunas in various religious laws. As
Justice Y.V. Chandrachud, rightly opined that, a common civil code will also help in
strengthening the cause of national integration by removing conflicting interests. Therefore, in
order to promote the uniformity of law a progressive and broad minded outlook is needed so that
the Uniform Civil Code should act in the best interest of each communities sentiments.

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