ARMY INSTITUTE OF LAW, MOHALI

PROJECT ON “UNIFORM CIVIL CODE”

Project Submission in the Partial Fulfillment of Periodic Evaluation of Gender

Justice.

Submission To: Submitted By:

Mrs. AMRITA RATHI SANJEEV YADAV

FACULTY: 5rd SEMESTER B.A. LL.B.

GENDER JUSTICE ROLLS NO: - 1716

COLONIAL HISTORY AND UNIFORM CIVIL CODE

Codification of law dates back to the colonial period and the genesis of our country’s legislative
literature can be traced back to the colonial era. The Lex Loci Report of October 1840
emphasized on the necessity for codification of Indian law relating to crime, evidence, contract
etc., but it recommended that the personal laws of Hindus and Muslims should be kept outside
the purview of such codification. Warren Hastings by a formal declaration of the policy in the
Administration of Justice Regulation, 1780 pronounced that while dealing with disputes of
marriage, divorce or inheritance people would be governed by their personal laws. Personal laws
are formulated and based on customs, usage and ancient scriptures of a religious community,
which set forth a common set of rules governing every citizen.  

LEGISLATIVE REFORMS

The law discriminated against women by depriving them of inheritance, remarriage and divorce.
Their condition, especially that of Hindu widows and daughters was poor due to this and other
prevalent customs. The British and social reformers like Ishwar Chandra Vidyasagar were
instrumental in outlawing such customs by getting reforms passed through legislative
processes. Since the British feared opposition from orthodox community leaders, only the Indian
Succession Act 1865, which was also one of the first laws to ensure women's economic security,
attempted to shift the personal laws to the realm of civil. The Indian Marriage Act 1864 had
procedures and reforms solely for Christian marriages.

There were law reforms passed which were beneficial to women like the Hindu Widow
Remarriage Act of 1856, Married Women's Property Act of 1923 and the Hindu Inheritance
(Removal of Disabilities) Act, 1928, which in a significant move, permitted a Hindu woman's
right to property.

The call for equal rights for women was only at its initial stages in India at that time and the
reluctance of the British government further deterred the passing of such reforms. The All India
Women's Conference (AIWC) expressed its disappointment with the male-dominated legislature
and Lakshmi Menon said in an AIWC conference in 1933, "If we are to seek divorce in court, we
are to state that we are not Hindus, and are not guided by Hindu law. The members in the
Legislative assembly who are men will not help us in bringing any drastic changes which will be
of benefit to us." The women's organisations demanded a uniform civil code to replace the
existing personal laws, basing it on the Karachi Congress resolution which guaranteed gender-
equality.

The passing of the Hindu Women's right to Property Act of 1937, also known as the Deshmukh
bill, led to the formation of the B. N. Rau committee, which was set up to determine the
necessity of common Hindu laws. The committee concluded that it was time of a uniform civil
code, which would give equal rights to women keeping with the modern trends of society but
their focus was primarily on reforming the Hindu law in accordance with the scriptures. The
committee reviewed the 1937 Act and recommended a civil code of marriage and succession; it
was set up again in 1944 and sends its report to the Indian Parliament in 1947.

The Special Marriage Act, which gave the Indian citizens an option of a civil marriage, was first
enacted in 1872. It had a limited application because it required those involved to renounce their
religion and was applicable only to Hindus. The later Special Marriage (Amendment) Act, 1923
permitted Hindus, Buddhists, Sikhs and Jains to marry either under their personal law or under
the act without renouncing their religion as well as retaining their succession rights.

WHAT IS UNIFORM CIVIL CODE?

A uniform civil code administers the same set of secular civil laws to govern all people
irrespective of their religion, caste and tribe. The need for such a code takes in to account the
constitutional mandate of securing justice and equality for all citizens. A uniform criminal code
is applicable to all citizens irrespective of religion, caste, gender and domicile in our country. But
a similar code pertaining to marriage, divorce, succession and other family matters has not been
brought in to effect. The personal laws vary widely in their sources, philosophy and application.
Therefore, there is an inherent difficulty and resistance in bringing people together and unifying
those when different religions and personal laws govern them.

Uniform civil code 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. Article 44 of the Directive Principles expects the
state to apply these while formulating policies for the country. Apart from being an important
issue regarding secularism in India & fundamental right to practice religion contained in Article
25, it became one of the most controversial topics in contemporary politics during the Shah Bano
case in 1985. The debate then focused on the Muslim Personal Law, which is partially based on
the Sharia law and remains unreformed since 1937, permitting unilateral divorce, polygamy in
the country and putting it among the nations legally applying the Sharia law. The Bano case
made it a politicised public issue focused on identity politics—by means of attacking specific
religious minorities versus protecting its cultural identity.

Personal laws are distinguished from public law and cover marriage, divorce, inheritance,
adoption and maintenance. Goa has a common family law, thus being the only Indian state to
have a uniform civil code. The Special Marriage Act, 1954 permits any citizen to have a civil
marriage outside the realm of any specific religious personal law.

Personal laws were first framed during the British Raj, mainly for Hindu and Muslim citizens.
The British feared opposition from community leaders and refrained from further interfering
within this domestic sphere.

The demand for a uniform civil code was first put forward by women activists in the beginning
of the twentieth century, with the objective of women's rights, equality and secularism.
Till Independence in 1947, a few law reforms were passed to improve the condition of women,
especially Hindu widows. In 1956, the Indian Parliament passed Hindu Code Bill amidst
significant opposition. Though a demand for a uniform civil code was made by Prime
Minister Jawaharlal Nehru, his supporters and women activists, they had to finally accept the
compromise of it being added to the Directive Principles because of heavy opposition.

CONSTITUTION AND UNIFORM CIVIL CODE

During the post-colonial period, the framers of the Indian Constitution envisaged a uniform civil
code governing the personal laws in the country and thereby incorporated Article 44 in Part IV of
the Indian Constitution in furtherance of the Directive Principles of State Policy. Thereby,
making it incumbent on the state to secure for the citizens a Uniform Civil Code thought-out the
territory of India. The directive principle embodied under Article 44 of the Constitution is aimed
at gradually achieving, rather than at once, far reaching equality for all citizens.

The Preamble to the Constitution resolves to constitute a ‘Secular Democratic Republic.’ Which
in effect means that there shall be no state religion and the state shall not discriminate on the
basis of religion? The personal laws of each religion, which is comprised of separate ingredients
and founded on distinct ideologies, the uniform civil code must strike a balance between the
protection of fundamental rights and religious principles of different communities. Marriage,
divorce, succession etc. can be matters of a secular nature, which the law can regulate. Therefore,
a uniform codified law, which will subsume all religions in relation to the personal laws
governing different communities, should be necessitated.
 
Supreme Court of India on Uniform Civil Code

The Supreme Court for the first time directed the parliament to frame a Uniform Civil Code in
1985 in the case of Mohd Ahmed Khan v Shah Bano Begum. In Sarla Mudgal v Union of
India 1995, Justice Kuldip Singh reiterated the need for the Parliament to frame a Uniform Civil
Code, which would help the cause of national integration by removing contradictions based on
ideologies. Therefore, the responsibility entrusted on the State under Article 44 of the
Constitution whereby a Uniform Civil Code must be secured has been urged by the Supreme
Court repeatedly as a matter of urgency.

WHY DOES INDIA NEED A UNIFORM CIVIL CODE?

A uniform civil code is of an absolute necessity for individuals belonging to different religions
and denominations and it is imperative for the promotion of national unity and solidarity. Thus,
divergent religious ideologies must merge and culminate in to common and unified principles
and objectives, adhering to the true spirit of secularism. However, after more than 60 years of
independence the aspiration of a Uniform Civil Code remains unrealized.  
The idea and principle of having a uniform civil code, governing personal laws is to treat every
person equally and also so that just, fair and predictable laws protect everyone. Moreover, a
uniform civil code would put in place a set of laws that would govern personal matters of all
citizens irrespective of religion, which is the cornerstone of secularism. It would enable to put an
end to gender discrimination on religious grounds, strengthen the secular fabric and also promote
unity. From Shah Bano to Shayara Bano who recently filed a PIL in the Supreme Court the
emphasis has always been on gender friendly reforms of personal laws.
Therefore, given the current political and social scenario, the more progressive and liberal
sections are demanding for a uniform civil code, which would govern individuals across all
religions, caste and tribe uniformly and also protect their fundamental and constitutional rights.
Whether it would be the endeavor of the state, the mandate of the court or the will of the people
is a pertinent issue which only time will enfold.

ADVANTAGES AND DISADVANTAGES OF UNIFORM CIVIL CODE

ADVANTAGES:-

To provide equal status to all citizens

In the modern era, a secular democratic republic should have common civil and personal laws for
its citizens irrespective of their religion, class, caste, gender etc.

To promote gender parity

It is commonly observed that personal laws of almost all religions are discriminatory towards
women. Men are usually granted upper preferential status in matters of succession and
inheritance. Uniform civil code will bring both men and women at par.

To accommodate the aspirations of the young population

A contemporary India is a totally new society with 55% of its population is below 25 years of
age. Their social attitudes and aspirations are shaped by universal and global principles of
equality, humanity, and modernity. Their view of shedding identity on the basis of any religion
has to be given a serious consideration so as to utilize their full potential towards nation building.

To support the national integration

All Indian citizens are already equal before the court of law as the criminal laws and other civil
laws (except personal laws) are same for all. With the implementation of Uniform Civil Code, all
citizens will share the same set of personal laws. There will be no scope of politicization of
issues of the discrimination or concessions or special privileges enjoyed by a particular
community on the basis of their particular religious personal laws.

To bypass the contentious issue of reform of existing personal laws

Existing personal laws are mainly based on the upper-class patriarchal notions of the society in
all religions. The demand of UCC is normally made by aggrieved women as a substitute for
existing personal laws as patriarchal orthodox people still deem the reforms in personal laws will
destroy their sanctity and oppose it profusely.

DISADVANTAGES 

Practical difficulties due to diversity in India

It is practically tough to come up with a common and uniform set of rules for personal issues like
marriage due to tremendous cultural diversity India across the religions, sects, castes, states etc.

Perception of UCC as encroachment on religious freedom

Many communities, particularly minority communities perceive Uniform Civil Code as an
encroachment on their rights to religious freedom. They fear that a common code will neglect
their traditions and impose rules which will be mainly dictated and influenced by the majority
religious communities.

Interference of state in personal matters

The constitution provides for the right to freedom of religion of one’s choice. With codification
of uniform rules and its compulsion, the scope of the freedom of religion will be reduced.

Sensitive and tough task

Such a code, in its true spirit, must be brought about by borrowing freely from different personal
laws, making gradual changes in each, issuing judicial pronouncements assuring gender equality,
and adopting expansive interpretations on marriage, maintenance, adoption, and succession by
acknowledging the benefits that one community secures from the others. This task will be very
demanding time and human resource wise. The government should be sensitive and unbiased at
each step while dealing with the majority and minority communities. Otherwise, it might turn out
to be more disastrous in a form of communal violence.

Time is not yet suitable for this reform

Considering a major opposition from Muslim community in India over this issue overlapping
with controversies over beef, saffronization of school and college curriculum, love jihad, and the
silence emanating from the top leadership on these controversies, there needs to be given
sufficient time for instilling confidence in the community. Otherwise, these efforts towards
common will be counterproductive leaving minority class particularly Muslims more insecure
and vulnerable to get attracted towards fundamentalist and extremist ideologies.

CONCLUSION

 At the end of the day, a UCC can only emerge through an evolutionary process, which
preserves India’s rich legal heritage, of which all the personal laws are equal constituents.

 The codification and implementation of UCC may not necessarily usher in the expected
equality among genders and religions.

 Major sensitization efforts are needed to reform current personal law reforms which
should first be initiated by the communities themselves.

 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.