HIMACHAL PRADESH NATIONAL LAW UNIVERSITY SHIMLA

Possibility of Uniform Civil Code In India

LAW & JUSTICE IN GLOBALISED WORLD

SUBMITTED TO: Dr. CHANCHAL KUMAR SINGH

SUBMITTED BY: HIMANSHU SIHAG

ENROLLMENT NUMBER- 5020212242

DECLARATION

I, Himanshu Sihag (LLM/ 2021-2022) solemnly declare that the research paper titled
“Possibility of Uniform Civil Code In India” represents my work carried out during the
course of our study under the supervision of Dr. Chanchal Kumar Singh.

I declare that the work contained in this research is authentic and has been done by me under
the supervision of my supervisor. I have thoroughly read and followed all the guidelines
provided by the University while writing the research paper. Due credit has been given to any
text and information used from other sources.

I do hereby declare that this work has not been submitted in any other institution of India
and abroad for any degree/ diploma/ certificate.

SUBMITTED BY: HIMANSHU SIHAG

ENROLLMENT NUMBER- 5020212242
LLM. (2021-2022)

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 TABLE OF CONTENTS

 INTRODUCTION
Problem Statement
Rationale
Objective
Hypothesis
Research Methodology
 PHILOSOPHY OF UNIFORM CIVIL CODE
 SECULARISM VS. UNIFORM CIVIL CODE
 UNIFORM CIVIL CODE AND THE PERSONAL LAWS
 UNIFORM CIVIL CODE AND THE INDIAN CONSTITUTION

 NEED FOR UNIFORM CIVIL CODE

 PROBLEMS IN IMPLEMENTING UNIFORM CIVIL CODE

 JUDICIAL APPROACH
Objections against UCC
Impediments against UCC
Misconception Regarding UCC
Reasons for Misconception regarding UCC
The Core object of UCC
 CONCLUSION
 RECOMMENDATION
 BIBLIOGRAPHY

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 INTRODUCTION

As a democratic country, India has multi-religious and multi-languages. India being a

diverse country with a number of citizens having their own culture, tradition, customs,
religion and belief, are governed by their own personal laws. There are different codes for
different communities like Hindu MarriageAct, Hindu Succession Act, Hindu Adoption
and MaintenanceAct, Hindu Guardianship Act, and Muslims and Christians are governed
by their personal laws. 1

But due to the different codes and personal laws, it is at times difficult to distribute justice
based on religion; therefore, decisive steps were taken towards national consolidation in
form of idea of Uniform Civil Code, which was for the first time mooted seriously in the
Constituent Assembly in 1947. 2

In the Constitution of India, Uniform Civil Code is envisaged in Article 44, which covers
every aspect of law except matrimonial laws. The object of Article 44 is that, as and when,
the majority of Parliament thinks proper, an attempt may be made to unify the Personal
laws of the country, i.e., uniformity in law in matters of marriage, divorce, succession,
irrespective of religion, community, etc.

The Uniform Civil Code means a uniform personal law for all citizens of the country. This
code will replace the existing religious personal laws in India and have a uniform law that
will cater to all the citizens, irrespective of their religion. This has been envisaged by the
makers of our Constitution under Article 44. But it has been strongly opposed because it is
considered violative of Article 25 of the Constitution.

Uniform civil code, just three words and a drastic change in the legal system of India. As
we know that India is a diversified country and its population constitutes people from so
many religions, caste and tribes. So it is not pragmatic to make different laws for every
religion, tribe. Moreover, it will create chaos in the society as there will be no uniformity in
the laws. Secondly, uniform civil code will bring uniformity in the laws. Imagine two
1
Paras Diwan, Law of Marriage and Divorce: A Comprehensive treatise on Matrimonial Laws of all the Indian
communities including Hindus, Muslims, Christians, Parsis and Jews, 7th Edn., 2016.
2
Durga Das Basu, Commentary On The Constitution Of India, (20th ed., 2010)

3
citizens of same country are governed with different laws just because they practice
different religion or just because they belong to different caste. In addition to all this, Law
cannot afford to be selective in application. It has to be general and uniform unless the area
of operation of a particular law or the people it deals with are distinguishable from others
and such distinction has reasonable connection with the purpose of the law in question. It is
crucial time that India had uniform laws regarding marriage, divorce, maintenance,
inheritance and succession.

The issue of introduction of the Uniform Civil Code in India has been debated upon since
the time India attained independence with the Indian Parliament debating on it in as early
as 1948. It witnessed some strong opposition from the Muslim fundamentalists like Poker
Saheb and members from other religions. Though it did get support from the Chairman of
the Draft Committee and father of our Constitution Dr. B.R. Ambedkar along with some
prominent journalists like G.S. Iyengar, K.M. Munshiji and Alladi Krishnaswamy Iyer
amongst others to name a few. Though the Congress had promised it would allow Muslims
to practice Islamic laws, there was a fear, among Muslims, of a possible interference with
the Muslim personal laws and they contended that India would not be the same again if
UCC was to be introduced. As a compromise, the architects of the Constitution included
the Uniform Civil Code under the head of Directive Principles of State Policy in Article 44.
Some distinguished members did show their dissent stating that the path towards
nationhood was being hampered by the very existence of religion-based personal laws.
Earlier it was favoured to guarantee the Uniform Civil Code to the Indians within five to
ten years. Sixty-three years have passed and we’re still pondering over such a possibility. 3

Laws relating to crime and punishment are uniform for all citizens.   So are the laws relating
to commerce, contracts and other economic affairs.  Procedural laws including laws
relating evidence etc are also uniform for everyone.  Laws of taxation are same for all
except that it recognises certain religious customs prevalent in the society, like Hindu
Undivided Family (HUF), for special treatment. 

3
Uniform Civil Code Revisited: A Juridical Analysis of John Vallamattom, 45 Journal of the Indian Law Institute
315-334 (2013)

4
However, family affairs such as marriage, divorce, inheritance, guardianship and adoption
are legally permitted to be governed by customs or rules applicable to the persons and their
community.  This has been the practice from the time of British rule (even before that),
because it was considered prudent not to disturb the people’s religious and community
customs as far as their private affairs are concerned.  The same position continued even
after the independence and people were permitted to follow their respective personal laws.

This study aims to approach the concept of Uniform Civil Code in a more practical and
pragmatic way to ensure that it can be properly implemented in India and to see if it is even
suitable for a country like India. Its Legal Dimensions are kept in mind.

Problem statement

The Uniform civil code is something very much above the communal line, much above the
Hindu-Muslim or Minority-Majority issue, but the problem is that the orthodox bosses of
the Muslim Personal Law board who claim to be the care taker and well wisher of the
whole Muslim community oppose the Uniform civil code on the ground of being
communal or oppression of the minority by the majority. But the bitter truth is they only
want to continue the male dominated Muslim culture and do not want to eliminate the
women discriminatory personal laws.

1. So the issue or the problem is how to make the people of Muslims and other Minority
believe that the Uniform Civil Code is for their benefit and the very purpose of the UCC is
to do away with such orthodox anti feminist practices?

2. The second problem is that which way should be adopted, either the compulsory legal
imposition as was done while passing the Hindu Laws in 1955, or following the path of
consultation by taking the consent of all major stakeholders?

Rationale

1. It is important to study in detail the origin and development of personal laws so as to

understand the origin and limitation of Uniform civil code.

2. There is also need to study as to what stimulated to Indian government to shift from
rational, secular to identity politics .

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3. it is necessary to take UCC in a serious stage with the growth of the executive and
legislative powers to interpret the provision of the constitution in order to uphold individual
equality.

Objectives

1. To study the history, origin and development of Personal Laws and uniform civil code.

2. To study the need and importance of Uniform civil code.

3. To find out the possible ways of implementation of Uniform civil code.

Hypothesis:

1. The judiciary being the final interpreter of the constitution should adopt the rational
model of judicial review and implement UCC so that it can adapt to the changing needs of
the society

2. It should understand the needs of society of a common civil law and interpret the
provisions of the Constitution in just, fair and reasonable manner so that there no
arbitrary transgression on the rights of the individual.

Research Methodology:

The researcher has followed secondary data collection. This is a doctrinal study. The
researcher has also utilized commentaries, books, treatises, articles, notes, comments and
other writings to incorporate the various views of the multitude of jurists, with the intention
of presenting a holistic view. The researcher has made extensive use of Case Laws in this
paper, so as to discern a trend in the judicial pronouncements.

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PHILOSOPHY OF UNIFORM CIVIL CODE

Under Art 44 of the Constitution of India, the state is under constitutional obligation to make
earnest efforts towards the establishment of one civil code for all persons, yet if these
provisions come in direct conflict with provisions in Part III of the Constitution of India, then
Judiciary has been given regulatory powers, and also vide power to expound the provisions and
bring into practice the basic philosophy underlying the provisions. 4

SECULARISM VS. UNIFORM CIVIL CODE

Preamble of the Constitution states that India is a Secular democratic Republic. The word
Secular was inserted by the 42 nd Constitutional Amendment, 1976. This mean there is no state
religion. The process of secularization is intimately connected with the goal of Uniform Civil
Code like a cause and effect.

The secularism in India is different from that of Doctrine of Secularism by America and some
European states. As America and some of the European states has underwent the stages of
renaissance, reformation and enlightment , therefore, they can enact a law stating that the state
shall not interfere with religion, but in India state has to interfere to remove the impediments.

In the Constitution of India, Article 14, 15, 16, 325, 25 and 27 makes clear that the state is
barred from patronizing any religion. Uniform Civil Code is not opposed to secularism and
will not violate Article 25 and 26 of the Constitution of India. Article 44 of the Constitution of
India is based on the concept that there is no necessary connection between Religion and
Personal laws in the civilized society.

India’s commitment to Human Rights: Constitution guarantees and International

Human Rights Conventions

There is a compelling need to study personal religious law from a human rights perspective.
Principal of equality, non discrimination and fairness which form an essential part of the
Human Right disco sure are enshrined in the Preamble of the Constitution, which are the
matter of debate regarding personal law of India. Thus, we see that Article 15(3) of the
Constitution empowers the State to make special provisions for protection of women and
children. Article 25(2) mandate that social reform and welfare can be provided irrespective of
the right to freedom of religion. Article 44 which directs the state to secure for its citizens a

4
Uniform Civil Code Revisited: A Juridical Analysis of John Vallamattom, 45 Journal of the Indian Law Institute 315-
334 (2013)

7
Uniform Civil Code throughout the territory of India is the cornerstone for women’s equality
in the country and must be urgently implemented so as to eliminate antiquated discriminatory
norms of religion laws.

It is to be noted here that even though India is a secular republic, its citizens subject to uniform
civil-law. Muslims enjoy a separate civil-code, which is at par with the shariah law, including
in laws of divorce, which harshly oppresses Muslim women. But in criminal matters, they have
chosen to follow the Indian Penal Code, just to avoid harsh Islamic punishments like flogging,
hanging, beheading, stoning to death, amputation of limbs, and so on. The Indian Government
practices this ‘double standard’ to appease Muslim leaders and clerics for their votes. As a
secular and democratic state, India should implement a common civil code for all its citizens,
but Muslim-appeasing political parties are reluctant to implement the same for fear of losing
Muslim votes.5

There are many influential Muslim dignitaries, who occasionally speak in favor of liberating
Muslim women from oppressive Islamic laws, but do not dare raise their voice for the
implementation of the secular civil code for Muslims like other religious groups. His
Excellency APJ Abdul Kalam, the ex-President of India, once said, “As we all know, birds
have two wings. Unless both the wings grow equally, the bird cannot fly. Similarly, the society
has two wings, man and women. Both have to be developed equally. Then the society will fly.”
But after the Supreme Court ruling on April 21, 2006, mentioned above, a strong debate across
the country began regarding the implementation of uniform civil code for all. But,
unfortunately, Dr Kalam maintained silence as a mark of his tacit support to orthodox mullahs.

However, only if Government of India would stop politics of Muslim appeasement and show
courage to implement the uniform civil code upon all its citizens, regardless of religious
affiliations, would liberate Muslim women of this country from the oppressive Islamic law of
polygamy and triple talaq.

UNIFORM CIVIL CODE AND THE PERSONAL LAWS:

The women are considered inferior in most of the personal matters as compared to men,
especially when it comes to the discussion of the topic of the matrimony or the succession,
adoption or even the inheritance. Under the Hindu Law specifically, in the year 1955 and 1996,

5
Paras Diwan, Law of Marriage and Divorce: A Comprehensive treatise on Matrimonial Laws of all the Indian
communities including Hindus, Muslims, Christians, Parsis and Jews, 7th Edn., 2016.

8
the Hindu women did not enjoy equal rights along with the Hindu men be it anything or any
matter. Before 1955 polygamy was prevalent among the Hindus. The Hindu women could not
hold any property as its absolute owner except in the case of Stridhan. She had only limited
estate which was passed onto the legal last full heirs of the male owner called revisionary on
her death. She owned a limited interest, in the sense that whenever an issue came up for the
desertion of the property and mortgaging or selling the property, she could not do it on her
own.

The Criminal Procedure Code which imposes an obligation on the husband to maintain his
wife including divorced wife until she maintains herself is a secular law and is applicable to
all, however there is a controversy regarding the Muslim men following this provision 6.

In the famous case of Mohd Ahmed Khan v. Shah Bano Begum 7, the Supreme Court speaking
through Y.V. Chandrachud, the then Chief Justice held that the S.125 of the Criminal
Procedure Code is also applicable to the Muslims and that even a muslim husband is liable to
maintain his divorced wife beyond the iddat period. The controversy began and the parliament
had passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to overrule the
judgement in the Shah Bano Case. The effect of this act is that a muslim husband is not liable
to maintain his divorced wife beyond the iddat period unless both the spouses submit to the
court at the appropriate time that they would like to be governed by the Criminal Procedure
Code. This is like having the provision but not using it for the sake of protection of the
Personal law space and not giving enough justice to the woman who is suffering so much.

UNIFORM CIVIL CODE AND THE INDIAN CONSTITUTION:

The main problem lies in the fact that if the makers of Constitution had intended for a uniform
Civil code to be enforced in India, then they should not have placed it under Article 44 of the
Constitution as a part of the Directive Principles of the State Policy. The Directive Principles
of State Policy contained in the Part IV (Art. 36 - 51), as the name suggests are mere directions
to the State. They need not be mandatorily followed and are not enforceable by the Court.
They are merely positive obligations on the State which will help in good governance.

The Preamble of the Indian Constitution clearly states that India is a Secular, Democratic,
Republic. This means that there is no State religion. A secular state shall not discriminate
against anyone on the ground of religion. A religion is only concerned with relation of man
6
Almeida, A. 2016. Goa's Civil Code Shows That Uniformity Does Not Always Mean Equality, The Wire, August 08
7
1985 SCR (3) 844.

9
with God. It means that religion should not be interfering with the mundane life of an
individual. The process of secularisation is intimately connected with the goal of uniform Civil
Code like a cause and effect. In the case of S.R. Bommai v. UOI 8, as per the Justice Jeevan
Reddy, it was held that religion is the matter of individual faith and cannot be mixed with
secular activities and can be regulated by the State by enacting a law. In India, there exists a
concept of positive secularism as distinguished from the doctrine of secularism accepted by the
United States and the European States i.e. there is a wall of separation between the religion and
the state.

In India, positive secularism separates spiritualism with individual fath. The reason is that
America and the European States went through the stages of renaissance, reformation and
enlightenment and thus they can enact a law stating that State shall not interfere with the
religion. On the contrary, India has not undergone any kind of renaissance or reformation and
thus the responsibility lies on the state to interfere in the matters of religion so as to remove the
impediments in the governance of the state The reason why a country like India cannot
undergo a renaissance is very clear. The chances are that the conflicts, instead of decreasing
may go on increasing and showing reverse effects on the laws that are made. For instance, a
practice or a tradition in one's personal law may be acceptable but on the other hand, it may not
be acceptable to the people of other personal laws. So, when the traditions will be in practice,
the nature of the conflict will transform itself from general differences to hardcore animosity.
People find it difficult to accept or adapt to certain changes and when it comes to a society like
India where religion defines the way of life, people connect themselves with their religion
instead of understanding that it is the religion which is made by human beings and that human
beings are not made by the religion. This thought finds itself in the graveyard because some
people still believe in burning. There needs to be a uniform law which governs and regulate the
behaviour of people of all the religions and not any particular section of the society.

The Preamble of the Indian Constitution resolves to constitute a "Secular" Democratic

Republic. This means that there is no state religion or in other words the state does not operate
on any one particular religion and shall not discriminate on the ground of religion. Article 25
and 26 of the Constitution of India as enforceable fundamental rights guarantee freedom of
religion and freedom to manage religious affairs. At the same time Article 44 which is not
enforceable in a court of Law states that the state shall endeavour to secure a uniform civil

8
1994 AIR 1918.

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code in India. Uniform civil Code is the uniform method or the uniform law that governs the
people as a uniform law and does not discriminate on the basis of any religion or faith.

As a new principle evolves and comes into the knowledge of the people several questions arise
and criticisms pave their way. In unification of the personal laws, an important question that
arose was what will be the ingredients of the Uniform civil code. Since, the personal laws of
each religion contain separate provisions, their unification will bring not only resentment, but
also enmity in the public towards one another, therefore the Uniform Civil Code will need to
bring in such laws that strike a balance between the protection of the fundamental rights and
the religious principles of the different communities that exist in the country. Issues such as
marriage, divorce, maintenance etc. can be matters of secular nature and law can regulate
them.9

NEED FOR UNIFORM CIVIL CODE

India needs a uniform civil code for two principal reasons.

First, a secular republic needs a common law for all citizens rather than differentiated rules
based on religious practices. This was a key issue debated during the writing of the
Constitution, with passionate arguments on both sides. The Indian Constitution was eventually
stuck with a compromise solution, a directive principle that says: “The state shall endeavour to
secure for citizens a uniform civil code throughout the territory of India.” 10

Several members of the Constituent Assembly disagreed vehemently with the compromise.
Among them were the trio of Minoo Masani, Hansa Mehta and Rajkumari Amrit Kaur. As
Kaur argued: “One of the factors that have kept India back from advancing to nationhood has
been the existence of personal laws based on religion which keep the nation divided into
watertight compartments in many aspects of life.” 11

Later, in the first decade after independence, the opposition from Hindu conservatives to the
Hindu Code Bill was eventually overcome. Nothing similar was tried when it came to Muslim

9
Uniform Civil Code Revisited: A Juridical Analysis of John Vallamattom, 45 Journal of the Indian Law Institute 315-
334 (2013)
10
Article 44 of the Indian Constitution
11
Constitutional Assembly debates

11
conservatives. The political leadership of the day mistakenly decided to not take on
conservative Muslim opinion just after the trauma of partition.

There is a second reason why a uniform civil code is needed: gender justice. The rights of
women are usually limited under religious law, be it Hindu or Muslim. The practice of triple
talaq is a classic example. It is important to note that B.R. Ambedkar fought hard for the
passage of the Hindu Code Bill because he saw it as an opportunity to empower women. The
great Muslim social reformer Hamid Dalwai also made the rights of women a central part of
his campaign for a uniform civil code.

It is unfortunate that the demand for a uniform civil code has been framed in the context of
communal politics. Too many well-meaning people see it as majoritarianism under the garb of
social reform. They should understand why even the courts have often said in their judgements
that the government should move towards a uniform civil code. The judgement in the Shah
Bano case is well known, but the courts have made the same point in several other major
judgements.

The move towards a common civil code cannot be a hasty one. There is the obvious political
challenge on assuaging the fears of the Muslim community. The government will have to work
hard to build trust, but more importantly, make common cause with social reformers rather
than religious conservatives, as has been the wont of previous governments.

The underlying principle should be that constitutional law will override religious law in a
secular republic. Many practices governed by religious tradition are at odds with the
fundamental rights guaranteed in the Indian Constitution. Even those who argued in the
Constituent Assembly for continuing with different civil codes were not arguing on matters of
principle, but of political expediency. They hoped that India would move to a common civil
code within a decade or so.

The proponents of a uniform civil code have been campaigning for it even before the
independence of India. India has always been a place of many colors and spices and before
independence in 1947 it would have been hard to point out what constituted India.

Reasons Why India Needs a Uniform Civil Code Fighting the British rule and winning our
independence also helped in creating this nation we call India. It was known even at that time
that to further unite India and make it a truly secular nation we would need a uniform civil
code. But even after 66 years of independence we haven’t been able to do this.

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The reasons for why this has not been done are complex and a different topic on its own but it
all boils down to political will. Politicians have always found it beneficial to play vote bank
politics and try to appease different castes and groups instead of attempting to integrate our
nation. Instead of focusing on the negative let’s focus on the positive and talk about the
reasons why we do need a uniform civil code. 12

1. It Promotes Real Secularism What we have right now in India is selective secularism
which means that in some areas we are secular and in others we aren’t. A uniform civil code
means that all citizens of India have to follow the same laws whether they are Hindus or
Muslims or Christians or Sikhs. This is fair and secular.

2. All Indians should be Treated Same Right now we have personal laws based on
particular religions, which means that while Muslims can marry multiple times in India, a
Hindu or a Christian will be prosecuted for doing the same. This doesn’t seem like equality .
All the laws related to marriage, inheritance, family, land etc. should be equal for all Indians.

3. It will Give More Rights to the Women A uniform civil code will also help in improving
the condition of women in India. Our society is extremely patriarchal and misogynistic and by
allowing old religious rules to continue to govern the family life we are condemning all Indian
women to subjugation and mistreatment. A uniform civil code will help in changing these age
old traditions that have no place in today’s society where we do understand that women should
be treated fairly and given equal rights.

4. Every Modern Nation has it A uniform civil code is the sign of modern progressive nation.
It is a sign that the nation has moved away from caste and religious politics. While our
economic growth has been the highest in the world our social growth has not happened at all.
A uniform civil code will help the society move forward and take India towards its goal of
becoming a developed nation.

5. Personal Laws Are a Loop Hole The various personal laws are basically a loop hole to be
exploited by those who have the powerand they were never revised with change of time . By
allowing personal laws we have constituted an alternate judicial system that still operates. A
uniform civil code would change that.

6. It Will Help in Reducing Vote Bank Politics A uniform civil code will also help in
reducing vote bank politics that most political parties indulge in during every election. If all
12
Paras Diwan, Law of Marriage and Divorce: A Comprehensive treatise on Matrimonial Laws of all the Indian
communities including Hindus, Muslims, Christians, Parsis and Jews, 7th Edn., 2016.

13
religions are covered under the same laws, the politicians will have less to offer to certain
minorities in exchange of their vote. Not having a uniform civil code is detrimental to true
democracy and that has to change.

7. It Will Integrate India A uniform civil code will help in integrating India more than it has
ever been since independence. A lot of the animosity is caused by preferential treatment by the
law of certain religious communities and this can be avoided by a uniform civil code.

8. Inheritance An amendment to the Hindu Succession Act now gives daughters rights fcto
ancestral wealth equal to that of the son. According to Muslim personal law,” daughter’s share
is equal to one-half of the son’s, keeping in mind that a woman is worth half a man.”

9. Separation Personal laws also make it difficult for couple to apply for divorce due to
different marriage laws/act. The Bombay High Court in 2013 held that a Hindu married to a
non-Hindu in accordance with Hindu rituals cannot seek divorce under the Hindu Marriage
Act.

When Niranjani Roshan Rao 13, a Hindu, approached Bombay High Court seeking divorce from
her husband Roshan Pinto, the court rejected her petition on the ground that he was a Christian
at the time of marriage and was professing the same religion till today.

Polygamy, the practice of having more than one wife, is another problem that Uniform Civil
Code will address. According to conditional polygamy provision, Muslim men are allowed to
have more than one wife.

In Mizoram, a Christian religious section, called the "Pu Chana páwl" or just "Chana",

practices polygamy. The founder Ziona, 66-year-old man has 39 wives, 94 children and 33
grandchildren, everyone living under one roof.

In 2014, Bharatiya Muslim Mahila Andolan made fresh efforts by drafting a law that seeks a

ban on polygamy. Aimed at further codifying Islamic legal provisions regarding marriage, it
will make all polygamous marriages illegal.

The four cases of, Shah Bano Begum 14, Mary Roy15, National Anthem and Sarla Mudgal 16,
expose the domination of religion over a community be it Muslim, Syrian Christian or
13
Niranjani Roshan Rao V. Roshan Mark Pinto 2013 AIR 1224
14
Mohd. Ahmed Khan v. Shah Bano Begum And Ors 1985 AIR 945
15
Mrs. Mary Roy Etc. v. State Of Kerala & Ors 1986 AIR 1011
16
Smt. Sarla Mudgal, President v. UOI& Ors 1995 AIR 1531

14
Jehovites. It is a tyranny of the minority over majority. The unity of India would be at stake if
religion is allowed to tighten its grip over Indian society. We have been a Sovereign Socialist
Secular Democratic Republic and the State has no religion; it favours none and is a foe to
none. Humanism is our creed and a Common Law for all Indian is our ideal. We believe and
subscribe to rule of law and it is only a Common Civil Code that would help establish the rule
of law. It is the panacea for all our ills.

PROBLEMS IN IMPLEMENTING UNIFORM CIVIL CODE

India is world’s largest democracy and second most populous country.

• It has emerged as a major power and has a strong military. It has a major cultural influence
and a fast growing and powerful economy.

• India has a federal political system, whereby power is shared between the central government
and the state governments.

• With its many languages, cultures and religions, India is highly diverse and, as mentioned in
the preamble of its constitution, is a secular country.

• Religions not only have been serving as a foundation of the culture of India, but have had
enormous effect on Indian politics and society.

• In India, religion is a way of life. It is an integral part of the entire Indian tradition. A vast
majority of Indians associate themselves with a religion.

• Apart from the major religions that are followed in India, there are also numerous minor
tribal traditions.

• It is very difficult to enforce an uniform civil code in India because of the above mentioned
political and social problems.

A mainstream India needs a uniform civil code and it can be said that the mere three words and
the country breaks into frenzied celebration. This uniform civil code has social, political, and
religious angle. The Uniform Civil Code would carve a harmony between protection of
fundamental rights and religious ideology of people. The Uniform Civil Code can be
effectively presented simply in the wake of accomplishing enhanced levels of proficiency,
awareness on different socio-political issues, edified dialogs and expanded social portability. A

15
definitive point of improving uniform common code ought to be for guaranteeing equity,
solidarity and integrity of the country and equity both men and women.

JUDICIAL APPROACH

Recently in Ramesh Jangid v. Sunita 17, the wife wanted her husband to leave his parents and
live separately. The Court held that the demand of the wife was unreasonable and as wife was
living separately for 13 years and denying physical relationship, so divorce was granted on the
aforesaid grounds. The court observed that the differences that have grown up between the
parties, the distance which has widened for over a decade cannot be brushed aside lightly. Thus
irreparable break down of marriage is obvious so a divorce in such a case is the only way
available to the parties as well as for the court.

In Pannalal Bansilal v. State of Andhra Pradesh 18, it held that a uniform law though highly
desirable, the enactment thereof in one go may be counter-productive to the unity and integrity
of the nation. Gradual progressive change should be brought about.

Similarly, in MaharishiAvadhesh v. UOI 19, the Supreme Court dismissed a writ petition to

introduce a common Civil Code on the ground that it was a matter for the legislature and in
Ahmadabad Women Action Group v. UOI, the Supreme Court showed reluctance to interfere
in matters of personal law.

In John Vallamattom v. UOI 20, the Supreme Court in a PIL by a Christian priest, John and
other citizens of Christian community, hallenging the validity of the S.118 of the Indian
Succession Act, 1925, while striking down the said section as being violative of article 14 of
the Constitution, and also concerned over the contradictions in marriage laws of various
religions, in a historic judgments , emphasized the need for a legislation by Parliament on
common civil code. Stressing that there was no “necessary connection” between religious and
personal laws in a civilized society, a three judge bench held that it was matter of regret that
article 44 of the Constitution, which provided for the state to „Endeavour” to secure a UCC
for its citizens throughout India, had not been affected. The Court further observed that
“Parliament is still to step in for framing a UCC in the country. A UCC will help the cause of
the national integration by removing the contradiction based on ideologies.”

17
2008 (1) HLR 8 (Raj.)
18
AIR 1996 SC 1023 paragraph 12: (1996) 2 SCC 498
19
1994 Supp (1) SCC 713
20
AIR 2003 SC 2902

16
It can be said that after mentioning the apex court view regarding the implementation of UCC
that Art. 44 needs to be interpreted to sustain the plurastic character of the Indian community.
It should be on the gender justice rather than on uniformity. Although the Supreme Court has
not yet interpreted Art. 44. On all his decisions the Court enjoined upon the parliament to enact
a UCC without specifying what a UCC would mean. However, the word “uniform” should not
mean the same law for all but it should mean similar laws for all and similarly should be
regarding equality and gender justice.

In Danial Latifi v. UOI 21, a very controversial question of political significance (in the
background of a secular constitution and the concept of welfare state) was revisited i.e.
whether or not a divorced Muslim woman after divorce post iddat period  is entitled to
maintenance by her husband. Here, the Supreme Court adopted a middle path and held that
reasonable and fair provisions include provision for the future of the divorced wife (including
maintenance) and it does not confine itself to the iddat period only.

In the case, Reynold Rajamani v. UOI 22, the court rejected a prayer to remove the
discrimination between men and women under S.10 23 (applicable to Christians). The Court
based its approach on the limits of the court’s jurisdiction. It held that when a legislative
provision enumerates the grounds of divorce, those grounds limit the courts’ jurisdiction and
the court cannot re-write the law, so as to add grounds of divorce not permissible under the
section.

In Lily Thomas etc. v. UOI and others24 the Court held that:- “The desirability of
UCC can hardly be doubted. But it can concretize only when social climate is properly built up
by elite of the society, statement amongst leaders who instead of gaining personal mileage rise
above and awaken the masses to accept the change.”The court further added while it was
desirable to have a UNIFORM CIVIL CODE, the time was yet not ripe and the issue should
(be) entrusted to the Law Commission which may examine the same in consultation with
minorities Commission. That is why when the court drew up the final order signed by both the
learned judges it said, “the writ petition are allowed in terms of the answer to the questions
posed in the opinion of kuldip Singh, J. These questions we have extracted earlier and the

21
2001 7 SCC 740
22
AIR 1982 SC 1261
23
The Indian Divorce Act, 1869
24
AIR 2000 SC 1650 at 1668.

17
decision was confined to conclusions reached thereon whereas the observations on the
desirability of enacting the UNIFORM CIVIL CODE were incidentally made.”

In Prabhakar v. Shanti Bai 2008 HLR 250 (Nagpur), parties were married in 1955 however
they have not stayed together since 1958, and no cohabitation was there since last 49 years.
The court granted the decree of Divorce as the marriage between the parties was irretrievably
broken and it was no use to continue with such a marriage any longer.

Khursheed Ahmad Khan v. State of U.P. and Others 25

The Hon’ble Supreme Court upheld the validity of the rule that prohibits second marriage
during the subsistence of first marriage without the permission of the government and held that
this provision affect the rights of the Muslims at all. Thus if the legislature has not made direct
laws for the UCC, the Judiciary has taken good step by interpreting the secular laws in such a
way that they help in implementing it. Though it is good that the Judiciary has come forward,
but legislative work has its own value.

So, laws should also necessarily be made to implement the UCC. Dr. Tahir Mahmood 26 has
made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: "In
pursuance of the goal of secularism, the State must stop administering religion based personal
laws". He wants the lead to come from the majority community but, we should have thought
that, lead or no lead, the State must act.

Prof. M P Jain has rightly stated: “It is necessary that law be divorced from religion. With the
enactment of the UCC, secularism will be strengthened; much of the present day separation
and divisiveness between the various religious groups in the country will disappear; and India
will emerge as a much more cohesive and integrated nation. ” 27 Even our Judiciary has also
realized the importance of UCC and has emphasized to establish it for many times. In Sarla
Mudgal Case28, the Supreme Court has emphasized that UCC is imperative both for the
protection of the oppressed and promotion of the national unity and solidarity. Justice Kuldeep
Singh even lamented that Indian government, even after 47 years of independence, had failed
to enact a uniform civil code. The same was held in Lily Thomas v. UOI29.

25
Civil Appeal No. 1662 of 2015
26
Muslim Personal Law, 1997 Ed., at 200-202
27
Indian Constitutional Law, 5th Ed., at 1386.
28
AIR 1995 SC 1531
29
(2000) 6 SCC 224

18
Objections against UCC

There are several objections which are usually raised by the people who are against the UCC.
Such objections are;

(A) The UCC is against Arts. 25 and 26: Fundamental rights incorporated under Arts. 25
and 26 of the Constitution, are always used as weapon to fight against UCC for those people
who, for any reason do not want the UCC to become the reality. Their argument is that, these
Arts, protect their right to have their own personal law.

(B) Personal Laws are Religious hence Immutable: People who argue against UCC have
very strong belief that personal laws are religious and hence, cannot be changed or altered.
This belief is real or artificial can not be decided truly as per their aspect.
(C) State can not Interfere with Personal Laws: In view of Article 13, it is many times
argued that, the State can not interfere with the basic structure of family laws and they do not
come under the purview of “laws”.

(D) No need of UCC at this juncture: On several occasions, it is being said by many
politicians and selfish intellectuals, as well as social representatives, that there is no need to
have a UCC for the country like India, where multi cultural and multi-religious people reside,
who are not able to leave their religious belief, that their personal laws are of divine in origin.
Change in their personal law system would snatch their right to freely profess their religion and
right to live with the system of their own choice.

Impediments against UCC

There have been many hurdles in the way of forming and enacting a UCC. Due to which,
nothing concrete could be done in this regard. The main such hurdles are as under;

(A) Role of Governments: It is the duty of the government to implement UCC. But, from
the time, this mandate has been incorporated in the Constitution, there is no any reported
activity on the part of any government, which might have even initiated this issue. The reasons
are many but the main reason is that, no government could dare to face the objection raised by
the minorities. There is not even a single reported incident when, any government, ruled this
country so far, might has tried to talk seriously with the minorities on this issue. In fact, the
role and attitude of government has remained static and against the UCC. In fact, attitude of
governments have remained negative towards the UCC. BJP, in its Election Manifesto, 2014,

19
has promised to implement UCC in the country. But till yet in that reference too, there is no
any serious official activity is noted so far.

(B) Lack of Political Will Power: For any change or development, in any nation, strong
political will power is an immense necessity, which totally lacks in reference of UCC, in this
country. In fact, politicians are very much against the implementation of UCC. In the name of
“Secularism” politics is always played against the UCC. This tendency of politicians and
different political parties, has led UCC to remain a dead mandate of the Constitution.

(C) Objection by Minorities: Except some individual, different religious minorities have
always shown their objection against the UCC. They have a misconception that their personal
laws are of divine and religious origin. They are also afraid that, by UCC, their distinct identity
will be lost. This is nothing but a vague fear, which is constructed and supported by such
people of the particular community who don't want their people to be freed from wrong
impression of religion.

(D) Opposite view of some Constitutional Debaters: During the Constituent Assembly
debate, on different rights provided for religious freedom, incorporated under fundamental
rights, few debaters always showed their negative approach towards the slightest variation in
religious rights, which were in fact not tenable legally and logically. Against draft Art. 35 and
adopted Art. 44 too, many Muslim members filed very strong objection and also proposed
several amendments in this Art., so that the rights of their community can not be modified at
any point of time. Though such arguments were rejected and not included, their side effect can
be observed still, on the mindset of the people of the particular community.

(E) Stubborn Attitude of Religious Minorities: Religious minorities have been very
stubborn in their view towards UCC. Their fear is not real but artificial in many aspects. They
are not ready to adopt progressive approach regarding these personal laws.

(F) Absence of public opinion: Whatever objections are there against UCC, are filed by
few leaders of political parties and a group of such people who are leading their community or
society. The general public opinion has never been noted or tried to be noted. The voice of few
persons has created the present picture, which proves that the society is not ready to accept
UCC. But, if the opinion of public is taken, it is surely in the favour of UCC because, they are
the victims of different personal laws.

20
(G) Lack of Information among Citizens: It is a well admitted fact that the every
information regarding UCC has not reached to all the citizens of this country. The nature, need,
reliability and the authenticity of UCC is totally unknown to the general public. Hence, they
are unable to express their thoughts regarding UCC.

(H) Ignorance and Illiteracy: Illiteracy is one of the serious socio-political problems in
this country. The illiterate people can not understand the true nature of law, made for them.
Moreover they can not read and understand such issues. Illiteracy leads them to ignorance. And
both, illiteracy and ignorance, lead such people to be keep quiet. Such people strongly believe
that, they are not the part of policy making system. Hence, they never try to file their view
regarding any issue.

(I) Lack of effective Communication by Media: Yet too, many parts of this country are
very far from the reach of the media of any kind. They are so remote that, the people of these
parts are always very far from expressing their views, on any subject. Till yet, electricity
supply has not been possible in several parts of this country. Due to this too, electronic media
remains unused and unwarranted for them. This has led the issue undiscussed and unreached to
such people who are far from media.

(J) Misinterpretation and Misconception regarding several Fundamental Rights:

Fundamental rights enshrined under Arts. 25 to 30 have led several problems to policy making
in this regard. Due to the misinterpretation and misconception of the object of these Arts.,
citizens have never understood the basic concept incorporated under these provisions.

Misconception Regarding UCC

There are many misconceptions regarding UCC and these misconceptions are causing many
ambiguities in the way of UCC. Such misconceptions are;

(A) There is a misconception among the people of different religions that, their personal
laws are of divine origin, disturbing which shall make them lose their identity in the society,
and their personal laws are of unchangeable in nature.

(B) Minorities also fear that, in the name of UCC, the Hindu Law shall be applicable to
them.

(C) Minorities have fear that, right to freedom of religion shall be snatched in the name of
UCC.

21
Reasons for Misconception regarding UCC

There are several reasons for misconceptions due to which, even after sixty five years of the
enactment of Constitution of India, no effort is made in the direction of fulfilling the
imperative of UCC. The tragedy is, these reasons do not exist in reality. They are not only
fake, but are also artificially arose for the self-interest by those people who want to dominate
their people in the name of religion. Willfully and intentionally, such people or leaders do not
allow to reach true religious knowledge to the common people. Several of Such reasons for
misconception are as under;

[A] Role of Political Parties: All the political parties have played an immense role in
developing anti-UCC atmosphere by one or other way. Vote bank politics can work only till
the people are separated, and do not know their rights well. To maintain vote, these parties
want the people to be ignorant.

[B] Role of Religious Leaders: Different religious leaders have wrongly interpreted or
misinterpreted the meanings and true senses of religious verses. Many times they have carried
out such kind of activities intentionally. To hold the command over their religion people, they
have misrepresented them regarding their rights and duties, from and towards law and order.

[C] Illiteracy and Superstition: In India the ratio of illiteracy is very High. And, people
believe in religion more than anyother thing. Believing in religion is not a matter of worry,
provided, they should be knowing and following true path of religion. Many times, the
religious leaders, themselves do not possess religious knowledge in its true sense. And if they
know then too, they misguide the people. Because, they know that if the people would come to
know the reality, they would not be in position to dominate them. Due to illiteracy and high
ratio of superstition is also high, people believe religious leaders rather believing religion.

Most of such believers are not even in position to read the real versions of their religious
books. Hence, they have to be dependable on their religious leaders, who are generally
working for name, fame and power. Rather giving religious Knowledge, they produce their
own twisted thoughts to their followers.

Sometimes religious leaders who are not in fact related to religion in any manner, show off the
people to follow them and by this, they bring mass public in their favour and such "So Called"
religious leaders do their several illegal business in the name of religion. Past decade has
witnessed so many instances of such nature.

22
[D] Customs and Usages: Customs and usages of different parts of this country also
dominate the mindsets of the people. People follow what have been practiced till yet, but they
don't try to find out, what they are following has any basic authenticity or not, in the eyes of
their religion?

[E] Anti-UCC Practice by Gender Bias Persons: UCC intends to eradicate all inequalities
from the different personal laws, and more or less, all the personal laws are gender bias. If it is
enacted, there will be cut-off in males rights, to compensate females rights and most of the
leaders either political or religious are males and it will effect their rights too. That is why,
they don't want to create atmosphere in favour of UCC. And they are developing mindsets of
the common people, against UCC.

[F] Mindset of Minorities: Nearly all the minorities are opposing UCC, but main objection
comes from Muslim Community. The law followed in the name of Muslim Law is not purely
of Quranic nature. Muslim Law in India is not really, what exists in Holy Quran. Different
customs usages and social practices have greatly influenced it. Specially in Muslim
Community, some rights are said to be specially confired on males and they practiced them in
unilateral manner but in fact its nature, what is exactly stated in Quran, is very different than of
what is practiced, i.e. "Triple Talaq", is irregular but then too, most of the Muslims in India,
follow it whenever they wish. The facility of "Triple Talaq" was given as "fire exit" but it is
used as main door. Such people who are misusing their personal law, would not be able to do
such things after the enactment of UCC and hence, they strongly object it.

If in colonial society, it was difficult to bring changes in traditional personal laws, it is much
more difficult to usher in changes in the present democratic society. The politicians are afraid
of facing the wrath of their voters. The vast number of women continue to be illiterate and
unaware of their rights as equal citizens and hence it is men who decide what is good or bad
for them.30

The Core object of UCC

A uniform civil code relating to personal laws does not mean the extension of Hindu personal
laws to other communities. It involves, the evolution of a rational system removing the
inequality, injustice, particularly to women and children, inherent in those ancient system and
the replacement of all existing personal laws by such a rational system. Now the matter is on a

30
Supra 29 at p. 6

23
common level of civilization and common standard of decency, which should, in the course of
time be unified and secular, we want to separate religion from personal laws. It has been seen
that Muslim's generally are too sensitive to any sort of interference in their personal laws, but
Tahir Mahmood a scholar on the Muslim Jurisprudence, holds that a uniform civil code is not
violative of "Shariat" and says "A Muslim can remain Muslim even, if he opts, out of Shariat
and subscribes to a uniform civil code.” 31

Uniform Civil Code thus contradicts neither the religion nor the preaching of Islam nor the
concept of Secularism. What it comes in conflict with is vested interest, and it is that vested
interest which is raising its voice louder and louder. They conveniently forget that even in
Muslim countries, Muslim law has been changed so as to bring it in conformity with the times
and the needs of the society. But in this part of the sub-continent, we have the same law, and
the same underlining principles, and the same decrepit details as in the sixth century. This is
the tragedy of times and this is where reason is falling prey to passion. 32

It is not that, in the name of UCC, Hindu code would be imposed on all the citizens of India. It
should also be remembered that the present Hindu Law is not in its original forms. While
drafting new Hindu law, nearly all the religious rituals are omitted except, the rituals for
marriage. If Hindus can adopt drastic changes in their personal laws, why not other
communities?

The Constitution of India equally treats all the citizens in respect of their fundamental,
Constitutional and legal rights. Not only the Constitution of India but other laws too, which are
not of purely family law nature, give equal treatment to all the citizens. Then, all the citizens
should also respect laws equally.

UCC is required for bringing clarity, simplicity and intelligibility in personal laws, because till
yet the scenario in this regard is very ambiguous.

UCC is required as a safeguard against political dominations. It is necessary to bring gender

justice, equality and uniformity in personal laws.

UCC is also required to secure the unity and integrity of this country which is divided on the
grounds of different personal laws.

UCC would replace old, obsolate and outdated personal law system of India.
31
Shivlal Yadav, “Some Reasomfor Uniform Civil Code”, 1995(1) GCD atp.27(J).
32
Supra 7 at p. 89

24
While religious ideologues have been responsible for derailing rational debate on a uniform
code, secularists have done the nation grave disservice by opposing movement towards a
uniform code or reform of personal law. A touch-me-not secularism has resulted in stalling the
process of modernization and social reform by pushing large sections of emotionally besieged
and ghettoized Muslims and even Christians into the arms of the religions orthodoxy. One
needs to be wary of the liberal secular ideal becoming a narrow and hollow "ism." 33

A uniform civil code has been wrongly posited as an assault on religion and religions
identities. What it essentially aims at is secular reform of property relations in respect of which
all religions have grossly discriminated against women. UCC is, therefore, foremost a matter
of gender justice. But male chauvinism and greed have joined with religions conservatism to
forge and unholy alliance to perpetuate a major source of gender discrimination thereby
impeding the modernization of social relations and national integration. 34

CONCLUSION

It is also clear that Uniform Civil Code is not violative of Article 25 and 26 of the Constitution.
It should rather be a new law and not the blend of personal laws. The problem in blending
personal laws is that there is every chance for a bias to arise. The Parliament should introduce
a new code similar to the Special Marriage Act of 1954 which does not extend any favours or
bias towards any religion.

What the people must understand is that religion and laws are two different concepts. This is
because the Constitution allows the people to follow their religion which will continue despite
the enactment of a uniform code. The uniform code will nowhere curb their right to follow or
profess their religion. For example, the religious scriptures prescribe punishments for crimes
but the Indian Penal Code, 1860 is the only penal laws that are followed in India. Thus, it is
high time that people start viewing religion and law as two different concepts and focus on the
empowerment of all class of people. There is an urgent need to bring in uniform laws in India.

But to conclude, I would like to say that citizens belonging to different religions and
denominations follow different property and matrimonial laws which is not only an affront to
the nation’s unity, but also makes one wonder whether we are a sovereign secular republic or a

33
By verghese, “writings and commentaries", www.bg-verghese.com/about/htm, Retrieved on 19-06-2015
34
Ibid.

25
loose confederation of feudal states, where people live at the whims and fancies of mullahs,
bishops and pundits.

It is necessary that law should be separated from religion. With the enactment of a uniform
civil code, secularism will be heightened; the differences between various religious groups will
disappear and India will emerge as a much more cohesive and integrated nation.

26
RECOMMENDATIONS

 The UCC should be blend of all personal laws picking up the best elements from them
and should adhere to constitutional mandate. It should be based on gender equality and
impartiality with regard to religious or political consideration.
 The Special Marriage Act, 1954 is a good example of it. It provides for a marriage
outside the realm of any specific religion. It applies to whole of India except the State
of Jammu and Kashmir irrespective of the religion, community or caste etc. Under this
Act, polygamy is illegal and succession is governed by the Indian Succession Act,
1925. Such law, with necessary modification if necessary, may be compulsorily
applicable to all.
 Thus, the UCC is imperative for the country. It may successfully be made and enforced
by reconciling the divergent laws and formulating a common code acceptable to all the
communities. The State should do no more delay in formulating it and should take
prompt action for it.

27
BIBLIOGRAPHY

Almeida, A. 2016. Goa's Civil Code Shows That Uniformity Does Not Always Mean Equality, The
Wire, August 08

A.S. Alteker, State and Government in Ancient India p. 100(1958).

B.M Gandhi, Hindu Law 376 (Eastern Book Company,Lucknow,4th edition,2016)

Basu,D.D. (2009, 20th Edition) Introduction to the Constitution of India, New Delhi, Universal
Law Publishing Company

F. E. Noronha, Outline: Goa Civil Code{F. E. Noronha, 2011, Panjim, Goa).

Jyoti Rattan, “Uniform Civil Code in India: A Binding Obligation Under International And
Domestic Law” 46 JILI 577 (2004).

Nilanjana Bhaduri Jha, “Does India really need a Uniform Civil Code?” from website of Times
of

Paras Diwan and Peeyushi Diwan,; Law of Marriage and Divorce, 47 (Lexis Nexis, Gurgaon
2016).

Paras Diwan The Uniform Civil Code: A Projection of Equality" in Mohammad Imam pg. 420.

Ramesh Chander Nagpal, Modern Hindu Law, 182 (2008 Butterworths Wadhwa Publications,
Nagpur)

Shabana Azmi, Women, Stand Up For Your Rights, The Times of India, 7 July 2005

This was how the Hindu Law Committee researched public opinion and how it supported its
conclusions. See PARASHAR, 5, at 81–82.

Virender Kumar, “See the Rift, not the Fault” 12, The Tribune, 21 May, 2016.

W.Friedmann, Law in a changing society 24 (Universal Law

Publishing Co. Pvt. Ltd., New Delhi, 5th edn. 2011)

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