UCC- Is “unity in diversity” to “harmony through uniformity” possible?

Half-way through 2023 ,when many of us were engrossed in achieving our year’s resolutions, is when the law commission of India had plans of revisiting and examining it’s previous reports. They decided to start afresh regarding the Uniform Civil Code (UCC), by issuing a notice stating that it is soliciting opinions and ideas about the same.

Soon after this notice, the UCC again took the limelight in news channels, newspaper columns, social media and podcasts. This article aims to explore UCC and it’s ramifications beyond its limelight from a pragmatic lens.

FROM PAST TO PRESENT - Journey of UCC to the Constitution of India

During colonial rule in India, laws were codified for the ease of governance by Britishers; but personal laws of different religions were not codified due to their complexity.

While the constitution was being drafted , UCC was stated under Article 35 and was a matter of intense debate. On 23rd November 1948, different ideas were put forth favoring as well as objecting the idea of UCC by the members of the constituent assembly; few amendments were also suggested instead of contradicting the article. It was later settled by voting and was added as a directive principle of state policy (DPSP).

Part IV of the Indian constitution lays out DPSPs and these are the principles laid down which can be applied by the state for making laws. It is imperative to note that DPSPs are not enforceable by any court.

Article 44 of Part IV of the Indian constitution states that the -”The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” In simple terms, UCC establishes uniform laws to govern all citizens, irrespective of religion.

UCC has been highly debated and is an evergreen topic from the pre-independence era to the contemporary scenario.

Understanding India: Is there a need for UCC in the land of diversity?

The term “secular,” used to describe the nature of the state, was added in the preamble of the Constitution by the 42nd Amendment Act in 1976. A secular state implies that the country is neutral in matters of religion and does not consider any religion as an official religion. Additionally, Article 25 stated in Part III under 'Fundamental Rights' of the Indian Constitution bestows the right to freedom of religion. This only concludes that the framers of the constitution and law-makers in the past were cognizant of the fact that India is home to multiple religions and their religious beliefs and personal interests had to be secured.

Statistically, India’s population is primarily distributed among six major religious communities and more than 500 tribal communities in which personal laws play a prominent role in governing their lives. It is imperative to note that personal laws can stem from various customs and traditions and a custom is also considered a valid source of law.

There are few rules like antiquity, continuity, exercised as a matter of right, reasonableness, morality and is in compliance with the law to determine a custom’s validity. The Hindu Succession Act, 1956 ,The Hindu Marriage Act,1955 are examples of personal laws based on customs.

While customary laws and traditions bind us to our roots, and also contributing in conserving historical and cultural heritages , they pose a complex legal framework because of the coexistence of multiple personal laws.

It is crucial to underscore that not all personal laws give rise to legal challenges , only a select few present contentious issues, and identifying those customs that are in conflict with existing laws and assessing their impact on society is an onerous task. It is in this very situation where UCC can play a pivotal role for the betterment of society and resolve the discrepancies, irrespective of their religious or cultural background.

Key scenarios where UCC could have simplified governance and administration of justice

The Shakti Vahini v Union of India case, which dealt with honor killings in India, specifically in northeastern states, shed light on inconsiderate acts by a few Khap panchayats. Khaps are community-based assemblies which administer personal issues like marriage, dowry and education on traditional customs. Few decisions by Khap panchayats were unconstitutionally breaching the fundamental rights of a citizen.

The honorable Supreme Court observed that the state does not recognize informal institutions of justice and thus instructed that in any such instance, the state has to establish criminal proceedings against everyone guilty of such atrocious activities. In response to this case, “The Prohibition of Interference with the Freedom of Matrimonial Alliance Bill” was recommended by the Law Commission of India.

In the historic Shayara Bano v. Union of India case, which dealt with customary practice of triple talaq in India, it was noticed that the customary practice was infringing the fundamental rights of equality and justice and made a section of women vulnerable without adequate legal protection. The apex court in this landmark judgment declared this practice of instant triple talaq unconstitutional.

These aforementioned cases counter the notion that UCC can only curtail fundamental rights and can have no positive impact, as it highlights the instances where certain customary laws are also infringing fundamental rights. A common civil code must be implemented to provide justice where customary laws are curtailing them and it should be used as a tool to enhance the justice-delivery system. A common law can be formulated where any group, section, or community of people shall not be obliged to give up its own personal law. As stated by the Supreme Court in John Vallamatton v. Union of India,” A common civil code will enhance the cause of national integration by removing the contradictions based on ideologies.”

Way Forward: Implementation and Adversities

The concerning argument about UCC is that the personal laws of various communities will be dissolved. A possible solution to this predicament is introducing laws that mandate certain criteria that can be resorted to when encountered by a legal complexity. For instance, In Seema v. Ashwani Kumar, the Supreme Court held that marriages, irrespective of their religion, should be compulsorily registered. This case is a paradigm of UCC being implemented to address issues common to all communities. It also needs to be ensured that UCC considers elements of various religions and communities so that it does not conflict with fundamental rights.

Goa is the only state that has implemented UCC, though the code is not completely uniform and has certain complexities Yet there are a few aspects of the code like daughters having equal share of property, and matrimonial property rights ensuring that the wife is an equal inheritor, which can be acknowledged as a template for successful implementation of UCC. However, the incongruities and non-uniform aspects in the civil code should also be a key takeaway to avoid adversities in any manner.

To conclude, there might be dissensions stating UCC as a utopian concept but there is no dearth of scholars in India. With thorough research of society and laws, a common code can be formulated to address the issues faced by society. The implementation of UCC should be precise, addressing only areas with evident disparities.

References-

[1](n.d.). CONSTITUENT ASSEMBLY DEBATES. https://eparlib.nic.in/bitstream/123456789/763009/1/cad_23-11-1948.pdf

[2] (Constitution of India, n.d.) https://legislative.gov.in/constitution-of-india/

[3] CHANDER, S. (2018, March 27). REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 231 OF 2010 Shakti Vahini …Peti. Supreme Court of India. https://main.sci.gov.in/supremecourt/2010/18233/18233_2010_Judgement_27-Mar-2018.pdf

[4] PUROHIT, S., & Ali, A. Y. (2017, August 23). Reportable IN THE SUPREME COURT OF INDIA Original Civil Jurisdiction Writ Petition (C) No. 118 of 2016 Shayara Bano … Petition. Supreme Court of India. https://main.sci.gov.in/supremecourt/2016/6716/6716_2016_Judgement_22-Aug-2017.pdf

[5] John Vallamtton V. Union of India, n.d.) https://main.sci.gov.in/jonew/judis/19151.pdf

[6] (Seema V. Ashwani Kumar, n.d.) https://main.sci.gov.in/jonew/judis/29704.pdf

The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic and scholarly discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.