Uniform Civil Code – Achieved?

Authors – Sanjay Jain & Nishant Sasidharan.

India had always operated a personal law system with different family laws for Muslims, Hindus and others. Indian Constitution, which was brought into force on 26^th January 1950, adopted Article 44, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

According to Menski, Uniform Civil Code (“UCC”) means a complete restructuring of the Indian legal system, abolition of the personal law system and creation of one new Indian family law for all Indians. In India Hindus, Muslims, Christians – and many religious communities live together and are governed by one overarching legal system, admittedly very diverse, but nevertheless a well-functioning legal system, and not anarchy or confusion. India adopted Article 44 with a view that the country’s legal system would be developed on the principle – “We have a system of religiously-founded personal laws of great complexity and confusing diversity. We have to change this. We want to achieve a number of policy objectives at once by creating a secular uniform family law for all Indians.”

India aimed at legal centralism (as in the case of Western states) – a situation where the State, and the State alone, determines the legal rules. So family law systems are the same for everyone in any particular country, irrespective of religion, community, local norms and other differentiating factors. Is this is a fiction or a fact ?

Adoption of Article 44 reflects expectation of following Western legal models, perceived as superior forms of legal regulation. The dominant expectation therefore remains that countries like India should follow a kind of Western trajectory of development in all respects. From this perspective, one of the central expectations was that India should have, or should work towards having, a Uniform Civil Code. The state continues to make ‘symbolic legislation’ – they postulate ideals for the future, rather than rules which are to be obeyed to the last dot. This is classic social engineering. For instance, India’s anti-dowry law, Hindu Succession (Amendment) Act of 2005 and amendment to section 25 of the Criminal Procedure Code, 1973 through the Criminal Procedure (Amendment) Act of 2001. The Constitution and fundamental rights guarantees are coming in. The Constitution manifests itself in laying down certain minimum expectations as ground rules for all Indian citizens, fundamentally linked to basic expectations of fairness and justice, irrespective of ‘religion’, ‘culture’ and ‘tradition’. For instance, decisions passed in various public interest litigations which have vigorously expanded understanding of ‘right to life’ under Article 21 of the Constitution. This also achieves social-engineering through law, such as emphasis on the basic expectation that in a patriarchal society, it is mainly males who will have to face an obligation to use their powers over resources to the benefit of all those individuals who are in any form dependent on their support, especially women, children and aged or disabled persons.

Development of Indian Uniform Civil Code

Several events / legislations towards achieving legal uniformity have happened in the Indian legal system. Some of which are illustrated.

By about 2001, there have been significant developments in the virtual unification of the ground rules for marriage and divorce across all communities and the completion of the jigsaw puzzle of Indian post-divorce maintenance

The UCC contemplated under Article 44 of the Constitution is realistic. This is also borne out by the debates in the Constituent Assembly in relation to present Article 44, which reflect that while personal laws per se are an ancient phenomenon, the Indian personal laws in their present form date back to the late 18^th century when the administrators of the East India Company (in a bid to dissipate opposition to the colonial rule and for administrative convenience) exempted parts of religious law from the purview of their regulatory action. Hindus and Muslims were to be governed by their own religious laws in disputes relating to inheritance, marriage, caste and other religious usages and institutions. It was the British and British Courts which had fostered and perpetuated the attitude of mind in Indians that personal law is part of religion.

It was fallacious to state that muslim personal law had been an immutable law which the Muslims had been following from ancient times. It was only in 1937 that the Central Legislature introduced the Shariat Act which made the Shariat Law applicable to muslims in various parts of the country. Prior to that in parts of North-West Frontier Province, United Province, Central Province and Bombay muslims were being governed by the Hindu Law. Similarly, in North Malabar (part of Kerala), muslims were following the Marumakkathyam Law – a matriarchal law. It was around this time that there was a demand for a separate state of Indian muslims. This ultimately culminated in India’s partition in 1847 and violence in the months that followed.

It was in these turbulent and communally charged times that the Indian Constitution was drafted and adopted. The framers of our constitution contemplated that a secular UCC would contribute to unity among the communities. They wanted the nation to be unified and consolidated by every means without interference with the religious practices.

Religious practices in the past did not cover the whole field of life. However, if they were so construed to do, then the nation had reached a point where it had to put its foot down and say that those matters are not religion, they are purely matters or secular legislation. The framers of the Constitution felt that if that were not so, then you could never give, for instances equality to women (who were even then being discriminated under various personal laws). They felt that this would run counter to a fundamental right which had already been adopted, namely, there should be no discrimination based on sex. Our constitution framers were of the view that religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that India evolves as early as possible into a strong and consolidated nation.

Our constitution framers were aware that retention of personal law was nothing new. There were precedents for the same even in European countries. Ironically, the framers of our constitution also give the example of Yugoslavia, which was inhabited by Serbs, Croats and Slovenes, who were obliged under treaty obligations to guarantee the rights of muslims. They were also aware that similar clauses could be found in several other European constitutions.

Our constitution’s framers were also conscious that India is too big and diverse a country with a large population so diversified that it is almost impossible to stamp them with one kind of anything. In fact, they had given special protection to backward classes, aboriginal tribals inhabiting various parts of the country as well as some backward regions of the country in the constitution. Dr.B.R. Ambedkar pointed out that India had a Uniform Code of Laws covering almost every aspect of human relationship. He gave the examples of the Indian Penal Code, the Criminal Procedure Code, the Transfer of Property Act, the Contract Act and the Negotiable Instruments Act as instances of Uniformity in Law. He pointed out that India had practically a Civil Code, Uniform in its contents and applicable to the whole of the country. The only province the civil law had not invaded by then was marriage and succession.

If religious and/or personal laws were so sacrosanct, then untouchability could not have been abolished (as was done by adoption of Article 16 of the constitution). Article 44 did not contemplate that a secular uniform family law for all Indians was to be created at once. This is evident since Article 44 was included in Part IV of the Constitution titled the ‘Directive Principles of State Policy’ (“DPSP”). Article 37 of the constitution provides that DPSP “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” DPSP are threads to weave the fabric of the nation. They have to be kept in mind by policy makers of our country. But they are non-binding on citizens.

Dr. B. R. Ambedkar pointed out that people read too much into Article 44, which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the code is framed, the State shall enforce it upon all citizens merely because they are citizens. He felt that it was perfectly possible that the future Parliament may make a provision by way of making the UCC applicable on a purely voluntarily basis. He pointed out that this method was adopted in the Shariat Act of 1937 when it applied to territories other than the northwest frontier province.

Nothing in the constitution debates suggests that our constitution framers ever envisaged that UCC would be introduced in one swoop. Even the subsequent conduct of the first Union Government of India (which also enjoyed majority in the constituent assembly) does not reflect the same. On the contrary, our constitution framers were wise. They first experimented by introducing bills to codify some Hindu laws. When they faced resistance for the same, they devised a new strategy to achieve their goal.

The Indian constitution is not centrist but plurality-conscious. Article 15 contemplates that the State can make special provisions for women, children, socially and educationally backward classes of citizens, for Scheduled Castes and the Scheduled Tribes, and economically weaker sections. Article 26 provides, inter alia, that every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion. Article 29 provides that citizens having a distinct language, script or culture of its own shall have the right to conserve the same. Article 244 read with Schedule V expressly provide special provisions for the scheduled and tribal areas. Part XVI of the Constitution makes provisions for the reservation / representation and welfare of scheduled castes, scheduled tribes and Anglo-Indian community. Article 370 provided for temporary, transitional and special provisions for the then state of Jammu & Kashmir. Article 371 provides for temporary, transitional and special provisions for the then states of Maharashtra & Gujarat.

By successive amendments to the constitution, Articles 371A to 371I read with Schedule VI have been adopted to make temporary, transitional and special provisions for North-Eastern States, Andhra Pradesh and Goa. In case of the North-Eastern States, tribes of those areas are to some extent protected from application of the State law. For instance, CrPC is not applicable to the State of Nagaland and other tribal area. These exceptions entail preservation of not only distinct family law systems but also various other exceptions relating to other aspects of civil law.

Inclusion of Article 44 was not a necessity. Even without its inclusion, the State can make laws which abrogate the so-called personal laws. Neither religious nor other personal laws were contemplated as being sacrosanct. Article 25 which protects freedom of conscience and the right to profess, practice and propagate religion is subject to public order, morality and health and other fundamental rights. It also specifically provides that Article 25 shall not prevent the State from making any law providing for social welfare and reform. Thus, even without adoption of Article 44, the Indian state could make laws for social welfare, reform, public order and morality. These are some of the objectives of a UCC.

The Law Commission of India had published a consultation paper dated 31^st August 2018 on Reform of Family Law (“the CP”). It contemplates four areas of family law which require reforms, namely, (i) Marriage and Divorce; (ii) Custody and Guardianship; (iii) Adoption and Maintenance; and (iv) Succession and Inheritance. It suggests potential legislative actions which would address discriminatory provisions under all family laws. The CP has endeavored to best protect and preserve diversity and plurality that constitute the cultural and social fabric of the nation.

Due to the diverse status of personal laws under the constitution, the CP seeks to preserve their diversity but at the same time ensure that they do not contradict fundamental rights guaranteed under the Constitution. It suggests that the legislature should first consider guaranteeing equality ‘within communities’ between men and women, rather than ‘equality between’ communities. The issue of family law reform does not need to be approached as a policy that is against religious sensibilities of individuals by simply as one promoting harmony between religion and constitutionalism. No citizen must be left disadvantaged on account of their religion and at the same time every citizen’s right to freedom of religion is equally protected. ‘Equity’ and not mere equality ought to be granted to citizens meaning that preferential rights and protections are maintained for vulnerable or historically subordinated sections of the society. Cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation. Secularism cannot be contradictory to plurality.

Conclusion:

If legal pluralism as a concept is accepted, does this consequently mean that Article 44 is a “dead letter” as the Indian Supreme Court called it in the Shah Bano case? This is answered by Menski In his 2008 article[7] by stating that slowly the various personal laws have been made more and more similar, and are today in effect largely harmonized, though they remain formally different. In this way, India has found a mirror image of the UCC. Consequently, Article 44 is still very much alive, in the sense that its essence – uniformity and equality – is provided through other means.

[1] (1985) 2 SCC 556

[2] (1997) 6 SCC 233

[3] (2001) 7 SCC 740

[4] (2006) 2 SCC 578

[5] (2017) 9 SCC 1

[6] (2019) 3 SCC 39

[7] Menski, Werner “The Uniform Civil Code debate in Indian law: new developments and changing agenda” German Law Journal, 9 (3), pp.211-50,

Sanjay Jain is a Counsel practicing before the Bombay High Court. He has an extensive practice of Commercial as well as Constitutional matters.

Nishant Sasidharan is a Counsel at the Bombay High Court, practising commercial litigation.