“Injustice anywhere is a threat to justice everywhere”- Martin Luther King

INTRODUCTION

The ongoing political narratives in India, seen in newspaper columns, heard in drawing rooms,
and bolstered by specific statements by political leaders from the ruling Bharatiya Janata Party
(BJP) and its allies are pointers towards moves to put in place a Uniform Civil Code (UCC) by
the nationalist right wing on India’s proud, plural, and diverse country and society. This,
however, is not a new debate. The movement for the creation of a UCC for the country is over a
180 years old (if, as we shall see, we take the starting point of this momentous debate as the
report of the Second Law Commission of 1835) and has been debated and discussed widely,
albeit intermittently, in public and political discourses ever since. The ruling party at the Centre,
the BJP, is already speaking of a UCC, which merited a specific subhead in its manifesto for the
2019 Lok Sabha elections

UNIFORM CIVIL CODE

Article 44 of the Constitution of India lists Uniform Civil Code as one of the Directive Principles
of State Policy. BJP believes that there cannot be gender equality till such time India adopts a
Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to
draft a Uniform Civil Code, drawing upon the best traditions and harmonizing them with the
modern times.”3

An ideologue of the Rashtriya Swayamsevak Sangh (RSS), Seshadri Chari, as recently as August
19, 2019, made the case for the BJP government to bring in a UCC on the heels of the revocation
of Article 370.

“The Uniform Civil Code (UCC) was part of the BJP manifesto and had been of the Jan Sangh’s
manifesto too. The RSS has also been claiming it. In fact, the UCC and abrogation of Article 370
have been the longest-standing demands of the Jan Sangh right from its formation. The only
addition in the BJP manifesto is Ram Janmabhoomi."4

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Therefore, this seems to be an opportune moment for the government to address the long pending
matter of a UCC. A careful look at the manner in which the issue of the UCC evolved in India
will be fruitful for all of us and shall assist us in arriving at a better understanding the complex
issues involved.

HISTORICAL BACKGROUND

The Second Law Commission, constituted by the British Government, which submitted its report
in 1835, which stressed the need for uniformity in codification of Indian law relating to crimes,
evidences and contracts, however, specifically recommended that personal laws of Hindus and
Muslims should be kept outside such codification.

"In their Second Report the Commission examined the problems of Lex Loci and codification
and came to the conclusion that 'what India wants is a body of substantive civil law, in
preparing which the law of England should be used as the basis, but which, once enacted,
should be the law of India on the subject it embraced. And such a body of law, prepared as it
ought to be with a constant regard to the condition and institutions of India, and character,
religions, usages of the population, would, we are convinced, be of great importance to that
country.' The Commission also recommended that codification should not extend to matters like
the personal laws of the Hindus and Mohammedans which derived their authority from their
respective religions."5

The Report was informed by the views of J.H. Harington, member of the Viceroy’s Council in
Bengal, who argued against a more general application of British laws to the inhabitants of the
country. He did so on three grounds: first, that the fixed habits, manners and prejudices and the
long established local customs were totally opposite in principle and practice to that of England;
second, that the people here are not only ignorant of the language in which these laws were
written, but could not possibly acquire a knowledge of "our complex, though excellent, system of
municipal law"; and third, that the laws of England could not be applied here, as they ought to be
"suitable to the genius of the people and all the circumstances in which they may be placed".6

The conscious decision taken by the 1835 Report was to separate the personal laws of the various
religions and communities of India and keep it out of the proposed codification. Ultimately, this

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was reflected in Queen Victoria’s Proclamation of 1858 – issued when the British government
took over the sovereign power of the administration of the country after displacing the East India
Company in the wake of the 1857 revolt – promising absolute non-interference in religious
matters.

"We do strictly charge and enjoin all those who may be in authority under Us, that they abstain
from all interference with the Religious Belief or Worship of any of Our subjects, on pain of Our
highest Displeasure."7

This specifically meant the clear separation of the two spheres of law. The public sphere,
governed by the British and Anglo-Indian law, in crime, land relations, laws of contract and
evidence, which applied equally to every citizen irrespective of religion; and the personal laws of
the people on matters such as inheritance, succession, marriage, and religious ceremonies and so
on.

Three contextual issues

There are three issues that immediately crop up:

One; it could be argued that it was probably wise in 1858 for a foreign colonial power to stay
clear of the dangers of dabbling in areas related to religion and personal custom in the overall
interest of maintaining peace and tranquility in the nation. This emphasizes the wisdom inherent
in the Queen’s Proclamation, for it was then necessary to soothe the troubled storm waters of the
1857 turmoil. In the present context.

Two; it is not only non-Hindus who may have severe objections to the promulgation of a law
that will govern their most inherent beliefs and faith as well as customs and practices.

In fact, when the issue was being hotly debated in the Parliament during the discussions on the
Hindu Code, some apologists for the status quo referred to the Vedas and the dharmashashtras,
stating that the rule of conduct is the highest law: they tried to place custom and tradition on a
pedestal even above the protection of human rights. Other speakers, while supporting the need
for a UCC, cleverly disguised their opposition by emphasizing the need to respect diversity

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amongst the various communities and castes within the Hindus. Of course, some of the more
vocal critics spoke about the dangers to the Hindu religion if the UCC was approved.

And three, and in favor of the UCC, it is also well known that the Hindu law for a long time
discriminated against women by depriving them of inheritance, remarriage and divorce. Their
condition, especially those of Hindu widows and daughters, was poor due to this and other
prevalent customs. Could religious practices be employed to deny basic fundamental rights and
freedoms to women? Could not the UCC be employed to rectify the errors of a rigid
discriminatory society and bring greater equity and compassion into social life? Of course, the
question applied to other religions as well.

The Hindu Code and the "curious" call for a UCC

The question remains to this day: why was the personal law of the Hindus alone being codified
and why a uniform code for the entire populace was not being attempted by the framers of the
Constitution? G.R. Rajagopaul, himself a witness to the developments of those momentous days,
as a member of a "small committee" set up by Ambedkar "to examine" the Hindu Code Bill
when it was pending in the Constituent Assembly in 1948, attempts an answer:

"…it was felt that an attempt should be made to codify the Hindu law and if this succeeded,
and of the measures produced thereby had in themselves intrinsic merits commending them
for universal application, the time would not be far off when other communities might like to
follow suit and ask for reconsideration of their own law in the light of changed situations." 1

It was a pious hope, but that one that did not materialize.

The Hindu Code that had been prepared in this context had the stamp of Ambedkar who, as a
radical thinker, had criticized the Hindu law on many an occasion. The draft Hindu Code Bill
received much criticism and the issues that were opposed pertained to monogamy, divorce,
abolition of coparcenary (women inheriting a shared title) and inheritance to daughters.
1
Rajagopaul, G.R. 1975. The Story of the Hindu Code, Journal of the Indian Law Institute, Vol 17, No 4,
October-December, pp. 537-55

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The first President of the country, Rajendra Prasad, opposed these reforms; other critics included
Sardar Vallabhbhai Patel, a few senior members and Hindu fundamentalist parties. The
fundamentalists called it "anti-Hindu" and "anti-Indian". In order to deliberately stall the
proceedings, they demanded a UCC applicable to all religions and not only for the Hindu2.

In fact, the opposition to the Hindu Code Bill, in the form presented to the Parliament, came
from an array of members representing various factions of the Hindu majority and others within
and without the Parliament. As mentioned above, the most important of them were conservative
hardliners of the Congress party, among them veterans like Vallabhbhai Patel, Rajendra Prasad,
and J.B. Kripalani who had a completely different world view from Nehru’s. Rajendra Prasad
even threatened to refuse Presidential assent to the Bills: Patel concurred in private, but was
disinclined to argue with Nehru.

The other critics included "the Hindu fundamentalists within the Congress Party who were
substantial in number led by Deputy Speaker M. Ananthasayanam Ayyangar"; the Hindu
Mahasabha and its women’s wing, "with representatives like Shyama Prasad Mukherjee, N.C.
Chatterjee and others who opposed the Bill strongly for threatening the so-called religious
foundations of Hindu society."

Importantly, some throws light on how the UCC came into the political narrative, and why and
how Ambedkar responded to this move for a common code:

"By using inverse logic the Mahasabha leaders tried to suggest that the Hindu Code was, after
all, a communal measure and a uniform Civil Code should have been made instead, to give
effect to the secular ideals of the country. The motives of the Mahasabha, however, were
betrayed when Dr Shyama Prasad Mukherjee made the suggestion that the Hindu Code be
optional. Ambedkar was provoked into dismissing S. P. Mukherjee's remarks as not worth
serious consideration since he had after all, as member of Nehru's Cabinet, whole-heartedly
supported the Code which he was now opposing. Ambedkar also pointed out that innocuous

2
Rajagopaul, G.R. 1975. The Story of the Hindu Code, Journal of the Indian Law Institute, Vol 17, No 4,
October-December, pp. 537-55

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suggestion that a uniform Civil Code be initiated seemed curious, as he wondered how could
opponents of the Bill turn overnight into protagonists of a Civil Code."3

Some also gives details of the other groups which opposed the Hindu Code: the Sikh group "who
resented being clubbed with the Hindus" and feared that the Code would be an attempt to absorb
them into the Hindu fold; the Muslim group who "were obviously encouraged by the Hindu
fundamentalist group within the Congress to tilt the scales in their favour"; and finally, the
women parliamentarians, not because they were opposed to the Code, but because they felt that
the measures "were not going far enough".

The arguments they pushed forward included the following: the need to protect the hallowed
traditions of the Hindu shastras; the resentment arising from the fact that the Muslim Personal
Law remained untouched; the proposed measures affecting the bulk of the population had not
been circulated so as to ascertain public opinion and was being pushed through hastily; and,
most importantly, the grant of equal property rights to women threatened the well-entrenched
economic rights of the male in the society.

It was the powerful voice of Nehru that kept the discussion going. He was disgusted by the
repeated by the pristine references to the Hindu shastras.

"For Nehru, the Hindu Code was a necessary reform measure which fitted into his larger
perspective of all-round national development. As he put it, 'we talk about Five Year Plans, of
economic progress, industrialization, political freedom and all that. They are all highly
important. But I have no doubt in my mind that the real progress of the country means progress
not only on the political plane, not only on the economic plane, but also on the social plane. They
have to be integrated, all these, when the great nation goes forward.'”4

The women Members of Parliament, had previously thrown their weight with the
fundamentalists; but now, probably influenced by Nehru, they began to understand the
contradictions they would have to confront as the Hindu Code was going a long way in granting

3
Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance? Modern Asian Studies, Cambridge
University Press, February, Vol. 28, No. 1, pp. 165-194.
4
Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance? Modern Asian Studies, Cambridge
University Press, February, Vol. 28, No. 1, pp. 165-194.

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them significant rights. In a significant political move, they reversed their position, and backed
the Hindu law reform. They feared that publicly allying with the conservative Hindu group
would cause a further setback to their rights and seriously damage their future attempts to gain
equality with their men folk in all other matters. Ultimately, therefore, an abridged and diluted
version of this Bill was passed by the Parliament in 1956, which while excluding non-Hindus
from the ambit of the reform, brought into the statute books four separate Acts, namely
the Hindu Marriage Act, the Hindu Succession Act, Minority and Guardianship Act and the
Adoptions and Maintenance Act.

THE GOA FAMILY LAW

Surprisingly, Goa is the only State in India which has a form of UCC. The Goa Family Law,
originating from the Portuguese Civil Code, continued to be implemented even after Goa's
annexation in 196130. A word about the mother law may not be out of place: The Portuguese
Civil Code of 1867 - which was extended to Portugal’s overseas provinces including Goa in
November, 1869 - is a remarkable piece of legislation promulgated by King Luiz Augusto
Rebello da Silva. Comprising 2538 articles, it underwent various legislative amendments from
time to time by inclusion of other related laws such as law of marriage, protection of children,
divorce, civil registration, civil procedure etc. Interestingly it defines important concepts of civil
law, including its scope, the sources of rights and obligations etc. The function of civil law has
been defined thus: "Civil Law recognizes and specifies such rights and corresponding duties;
ensures and protects the enjoyment of rights and the performance of duties; lays down the
circumstances in which a citizen may be disabled from exercising rights and the manner in which
such disability may be overcome." It is significant to note that within the scope of Article 9, and
through a separate decree of 16 December 1880, "it ordered safeguarding in favour of the gentile
Hindus of Goa, without distinction of Old and New Conquests, their special and peculiar usages
and customs reviewed and codified by this decree." 5 There is a lesson for us in there somewhere;
a Christian Catholic Government situated in Lisbon, ordering the protection of the customs and
practices of its Hindu subjects, residing in faraway Goa on the Indian sub-continent. And this
happened about 140 years ago.

5
Government of Goa, 2018. Portuguese Civil Code, 1867, Panaji.

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JUDICIAL MARCH THROUGH THE YEARS

In the case of Mohammad Ahmed Khan v. Shah Bano Begum6 popularly known as Shah
Bano case, the Supreme Court held that “It is also a matter of regret that Article 44 of our
Constitution has remained a dead letter.” Though this decision was highly criticized by the
Muslim Fundamentalists, yet it was considered as a liberal interpretation of law as required by
gender justice. Later on, under pressure from Muslim Fundamentalists, the central Government
passed the Muslim Women’s (Protection of rights on Divorce) Act 1986, which denied right of
maintenance to Muslim women under section 125 Cr.P.C. The activist rightly denounced that it
“was doubtless a retrograde step. That also showed how women’s rights have a low priority even
for the secular state of India. Autonomy of a religious establishment was thus made to prevail
over women’s rights.”
In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and Others 7 the
Apex Court while delivering the judgment directed the Government to implement the directive
of Article 44 and to file affidavit indicating the steps taken in the matter and held that,
“Successive governments have been wholly remiss in their duty of implementing the
Constitutional mandate under Article 44, Therefore the Supreme Court requested the
Government of India, through the Prime Minister of the country to have a fresh look at Article 44
of the Constitution of India and endeavor to secure for its citizens a uniform civil code
throughout the territory of India.”
However, in Ahmadabad Women’s Action Group (AWAG) v. Union of India 8, a PIL was
filed challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory and
non-statutory law. In this case the Supreme Court became a bit reserved and held that the matter
of removal of gender discrimination in personal laws involves issues of State polices with which
the court will not ordinarily have any concern. The decision was criticized that the apex court
had virtually abdicated its role as a sentinel in protecting the principles of equality regarding
gender related issues of personal laws of various communities in India.vi
The Apex Court pursued the same line in Lily Thomas etc. v. Union of India and others9 and
held that the desirability of Uniform Civil Code can hardly be doubted. But it can concretize only
6
(1985) 2 SCC 556
7
AIR 1995 SC 1531
8
AIR 1997 SC 3614
9
AIR 2000 SC 1650

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when social climate is properly built up by the society, statesmen amongst leaders who instead of
gaining personal mileage rise above and awaken the masses to accept the change for the
betterment of the nation at large.
The situation regarding the personal laws for Christians in India was different. In their case, the
courts seemed to be bolder and took a progressive stand in terms of gender equality. For instance
when the case of Swapana Ghosh v. Sadananda Ghosh10 the Calcutta High Court expressed the
view that sections 10 and 17 of the Indian Divorce Act, 1869, should be declared
unconstitutional but nothing happened till 1995. Again in yet another case, the Kerela High
Court in Ammini E.J. v. Union of India11 and Bombay High Court in Pragati Verghese v.
Cyrill George Verghese12 have categorically struck down the section 10 of Indian Divorce Act,
1869 as being violative of gender equality.
Recently in Ramesh Jangid v. Sunita13, 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 Prabhakar v. Shanti Bai14, 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.
The Law Commission of India and the Supreme Court have recommended that the irretrievable
break down of marriage should be made a separate ground of divorce by the legislature. No
useful purpose would be served by keeping alive de jure what is dead de facto. It is possible that
if Parliament does not act on this recommendation the legislature of some states of India may
take the lead, exercising power under entry 5 of the concurrent list of the 7th schedule.

10
AIR 1989 Cal. 1
11
AIR 1995 Ker.252
12
AIR 1997 Bom. 349
13
2008 (1) HLR 8 (Raj.)
14
2008 HLR 250 (Nagpur)

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The Law Commission has suggested that immediate action needs to be taken to introduce an
amendment in the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 for inclusion of
irretrievable breakdown of marriage as another ground for grant of divorce.
For long Christian women too had the law loaded against them. A Christian man could obtain a
divorce on the basis of adultery; a woman had to establish an additional charge like desertion or
cruelty under the Indian Divorce Act 1869 as well. But in 1997, cruelty, physical and mental
torture were made ground enough for a Christian woman to obtain a divorce, with the Bombay
High Court recognizing cruelty and desertion as independent grounds for the dissolution of a
Christian marriage. Divorce under the Hindu Marriage Act 1955 can be obtained on the grounds
of adultery, cruelty, desertion for two years, conversion in religion, an unsound mind, suffering
from venereal disease or leprosy or if the spouse has renounced the world and has not been heard
from for seven years. Also no resumption of co-habitation for one year after the decree of
judicial separation, no restitution of conjugal rights for one year after decree for restitution of
conjugal rights, or if the husband is guilty of rape, sodomy or bestiality. All major religions thus
have their own laws that govern divorces within their own community, and there are separate
regulations under the Special Marriage Act, 1954 regarding divorce in interfaith marriages.
Under a common civil code, one law would govern all divorces for all communities based on
religion. One should not forget that nationhood is symbolized by one Constitution, a single
citizenship, one flag and a common law applicable to all citizens and India’s obligations under
international law and requirements of various international instruments relating to the human
rights of women such as Universal declaration of Human Rights, 1948 and the Convention on the
Elimination of all forms of Discrimination Against Women, 1979 also demand that even if one
rules out Article 44 the Union of India cannot evade its international obligation to make laws to
remove discrimination against women.
The Article 44 of the Constitution of India requires the state to secure for the citizens of India a
Uniform Civil Code throughout the territory of India. As has been stated above, India is a unique
blend and merger of codified personal laws of Hindus, Christians, Parsis and to some extent the
laws of Muslims. However, there exists no uniform family law in a single statute which is
applicable for all Indians which are universally acceptable to all religious communities who co-
exist in India.

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CONCLUSION-: THE INDIAN CONTEXT

An international survey would reveal that, in fact, there are few countries where common civil
laws do not exist, dispensing justice in a fair and neutral manner. As we have seen, in India, the
nature of the structured and layered social formations, the chaturvarna hierarchies approved and
mandated by religion and tradition which have existed for several millennia, complicates the
social fabric in more ways than can be decipherer. It may be argued that the immense diversity of
social customs, the plurality of social mores and traditions, the staggering variety of rituals and
practices and the presence of hundreds of castes and sub-castes, all make our country so complex
that to even think of a universal law that will encompass these variations, without trampling on
individual freedom and the right to practice one’s chosen religion.

In India, the complex mosaic of these overlapping personal, social, local and community
traditions and practices make the task of implementing a UCC truly difficult. Yet, if we are to
move on to a truly unified country with treats all its citizens with dignity, respect and equity,
without sacrificing their basic human rights, while at the time, protecting those individual
variations and cultural practices of each community, which do not militate against basic
principles of our vast and magnificent Constitution, then we would have achieved a near
impossible task. This balance between general principles of civil law and specific traditions of
individual religions: that is the desiderata we must aim for.

As Herrenschimidt remarkably said:

"It is necessary to further add that there was yet another powerful reason for this refusal,
loudly voiced for a few years, including amongst intellectuals considered as progressive: this
Code is the harbinger of a western secularism, deeply atheist, which does not suit a profoundly
religious India whose 'secularism' means respect and protection for all religions."15

The Government of India would soon constitute the new Law Commission, the 22 nd, and, it can
be conjectured, would urge it to think more innovatively and courageously than its predecessor.

15
Olivier, H. 2009. The Indians' Impossible Civil Code, Published online by Cambridge University Press, Vol.50,
Issue No. 2, pp. 309-347.

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Despite the cautious warning of the earlier Law Commission, it appears that an irreversible
movement towards securing a UCC for our country has begun. The repeated exhortations of the
Supreme Court, the call of the Directive Principles as enunciated in the Constitution of India in
Article 44, the political determination of the ruling political dispensation steadfastly manifest
now, all make it apparent that there will soon be a push towards obtaining a wide consensus in
the Parliament for a UCC for "We, the people of India”.

REFERENCES-:

 Shakeel Samdani, Uniform Civil Code, Problem and Prospects, Quest, AMU
Hall Magazine, Sir Shah Sulaiman Hall, A.M.U., 1996-97
 Mohd Shabbir, 'Uniform Civil Code and Muslim Personal Law, Civil and
Military Law Journal (Vol, No. 4, 1981)

 THE HINDU CENTRE PUBLICATION- article no.29792731

 https://www.thequint.com/explainers/uniform-civil-code-explained-what-it-is-and-why-
it-matters
 Shiv Sahai Singh, A Plea for Uniform Law of Marriage and Divorce in
India, 1983 (Ap.-Je): Civil and Military Law Journal (Ap-Je), 198
 Atish chakra borty- Uniform civil code & The Indian judiciary

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