Debate on Uniform Civil Code (UCC)

The debate on uniform civil code (UCC) revolves around 3 issues

1.Secular nature of Indian State
• According to those favour UCC, India will become secular in the true sense, only when
there is a UCC. UCC is based on the idea of Universal citizenship and the understanding of
secularism as religious neutrality.
2.National Integration
• According to the supporters of UCC, as longas the different communities countries to
practice different personal laws. Special right give to then they will continue to remain
conscious of their separate identities and will never average as a strong Nation.
• Gender Justice
• According to Feminists UCC will result into gender Justice. It will help in realising the
constitutional ideals of
• Equality Before Law
• Human Dignity
The debate on UCC in the country dates back to the constituent
assembly, Leaders like Hansa Mehta ; Rajkumari Amrit Kaur K.M. Munshi
favoured the introduction of UCC

Members of the minority like Ismail Sahib Pocker Sahib, strongly opposed
UCC.

Pundit Nehru’s Ambedkar favoured UCC.

However, Ambedkar was realistic enough to understand that conditions
are not conducive, Hence, he wrote that “once conditions become
conducive, UCC can he introduced.
 UCC is a European Concept
In 17th century Europe, it is linked to the process of modernisation and secularisation in the west.

Basis of secular nationalism.

• The experience of the 30 years’ war forced these countries to roll back the religion and to establish Solidarity.

European nation status accepted the principle of sovereignty of the state rejecting the sword of the Hope Church.
• Hence, state became the supreme institution to determine law. There has been no limitation on the power of
law making by the state
HOBBES,- Liberty is where law is silent
• Freedom to conduct life according to its own way was dependent on the will of the sovereign. Hence, in these
countries, even the laws governing family, marriage, divorce, inheritance, so called personal laws came within
the scope of legal sovereignty of the state.
John Locke- In these countries, religious freedom means freedom of conscience
• It does not involve freedom to practice, profess & propagate religion.

Thus, the European Neutrality led to UCC. (in the public sphere) state – uniform laws irrespective of religion
Status of Codification of Muslim Personal laws

The 1937 Act prohibits the state from intervention. As per the religion,
Muslims are not supposed to live under man made laws.

However, in many Muslim countries, there is a codification of laws. But the

issue is that they are Islamic states.

Within Islam, there are different sects within each sects, there are different
schools, of interpretation. Hence, even when the community goes for
codification, they have to first arrive at the consensus among themselves.
 Judiciary over the debate on the Uniform Civil Code
Shah Bano Case (1985)
• Supreme court had declared that the Muslim women are eligible to get maintenance in case of divorce at par
with Hindu women, which means that they can get maintenance even after the Iddat period (after Iddat-
maintenance used to be by community blood relating of women see if legist overreach/exec. Overreach

The Parliament had passed Muslim Women Protection of Rights on Divorce Act 1985
• The act restored the earlier position where Muslim women would got maintenance only for the iddat period by
the husband.

Shayara Band v/s Union of India, 2017

• Supreme Court has declared that talaq –e- biddat is not the essential practice of Quran. Means that state in
India is changing).
• Doctrine of eclipse applies but law doesn’t end
• P.B. Mehta said Indian Judiciary is self-perpetuating institutions
• Opportunities otherwise unnecessarily, it won’t conflict with legislative
• SC gave the judgement just to build its image – not really because of concern for Muslim women.
• The GOI had passed a bill in Lok Sabha Muslim women (Protection of Rights on Marriage) Bill, 2017 and also
an ordinance has been promulgated for the same (to bypass his Rajya Sabha) ordinance – not an executive
order it is a legislative power of president.
 Will the Goa model work?
Goa is often heralded as a model state, the only one which has a Uniform Civil Code, so
it’s interesting to look at its experience.

Muslims, Hindus and Christians in the state are bound by the same family laws which
retained the 1867 Portuguese civil code even after its merger with India in 1961.

lawyer-activist Albertina Almeida says it doesn’t automatically ensure equality.

• “Uniformity in law does not necessarily mean there is no discrimination. We have
some provisions that are uniform in discrimination. The management of the property
is the privilege of the male spouse in Goa and it is uniformly applicable to all
communities,” says Almeida.
 UCC and Secularism
Uniform Code is presented to Indians is mostly within the frame of ‘Secularism’, in other words as if it is
only to do with ‘minority appeasement’.

the ‘Secularism’ frame, naturally, brings in politics.

• The one active voice standing for a Uniform Civil Code has been the Bhartiya Janta Party. It has been one of their
three key planks, besides Article 370 and Ram Mandir.
India’s constitutional ethos also protects plurality.
• Its objective is not to produce homogeneity. Uniformly distributed rights are desirable. But no one will say the
‘Hindu Undivided Family’, with the rather patriarchal notion of a ‘Karta’ (the oldest male as its head, as codified at
present), presents any equitable ideal.
Hindu Code Bills in 1955-56
• The showdown between Nehru and Rajendra Prasad made headlines.
• The first Lok Sabha passed the Hindu Code Bills in 1955-56, in the form of four separate acts, the Hindu Marriage
Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act.
• The resentment of the Hindu right-wing, for the ‘exception’ that was made for the Muslim community, goes back to
that even though the new Hindu laws too were rather modest when seen in a reformist, gender equity light.
 Law commission on UCC, 2018

“UCC is neither desirable nor feasible at this stage.

Former law commission chief, Justice B.S. Chauhan is of the opinion that the
government should start working on reforms of family laws across
communities.

It is going to be a long process and the government should proceed carefully.

Bringing in a unified law for tribal will be legally difficult.
What is the status of Indian state modifying personal law?
Britishers codified personal laws related to the Christians and Parsis.

They tried to codify the Hindu personal laws (Hindus, Jains, Buddhists, and Sikhs). But there was a strong opposition by
Hindus. (Note: Either make Parties represented law to come from communities Hinduism

Upper caste Hindus even opposed Ambedkar’s attempt to modify the Hindu personal laws in the form of Hindu code Bill

Hindu personal laws have been gradually modified and codified. (Note: Hindus did not accept Britishers modify then
personal laws how can you expect Muslim except)

Recently, a separate law known as Anand Marriage Act has been codified for the Sikh community

So far, the codification of Muslim laws yet to the done remains. As per Muslims personal law Shariat application Act,
1957. State shall not intervene in Muslims personal laws.

A Special Marriage act also exists. Person following and religion can option for special marriage Article (marriage has
become on civil basis, rather than on religious grounds).
 Opinion of Scholars
Opinion of feminists scholars
• Flavia Agnes (Jurist)- UCC is not a Silver bullet that will bring Justice automatically.
• Codification of Hindu law is not a guarantee that women have achieved equality
• Constitution does not envisage uniformity in the Indian constitution, personal laws are in the concurrent list- This
itself means their Constitution permits diversity.
• Different ethnic communities (schedule – VI) are allowed to practice their customs & traditions.

Niveditha Menon – (political scientist)

• Any reform of Muslim personal laws should not be based on ‘Self-assured arrogance of Hindu customs &
traditions. In many ways, Muslim personal laws are more advanced that Hindu personal laws.
• Example: Among Muslims, all wives have equal status. Bigamy is more in practice among Hindus. Uptil recently
the second wife had no protection.

Prof. Faizan Mustafa

• He also feels existing gaps in the realm of personal laws must be addressed in a community-specific way first.
• “A committee of experts is needed to look at all these questions first. They should create a uniform law for one
community, and then try to create a code based on good provisions of different personal laws,” he says.