The Delhi High Court on July 7 backed the need for a Uniform Civil Code (UCC) that would eliminate struggles citizens have to face due to the conflicts and contradictions in various personal laws. The high court further directed this present judgment to be placed before the Law ministry for further action.
Justice Pratibha Singh observed that the modern Indian society was "gradually becoming homogenous" and the "traditional barriers of religion, community and caste are slowly dissipating". "The youth of India belonging to various communities, tribes, castes or religions who solemnize their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce," she added.
The high court's observation came in a judgment given on a plea involving the applicability of the Hindu Marriage Act (HMA), 1955 to a couple belonging to the Meena community.
Justice Singh observed that the "hope" expressed in Article 44 of the Constitution, which says that the State shall secure for its citizens Uniform Civil Code, "ought not to remain a mere hope".
The high court's order re-ignites the more than seven-decade-old debate on the need to implement UCC over the prevalent personal laws.
What is a Uniform Civil Code?
The UCC refers to a common set of laws that will govern personal laws like marriages, divorce, adoption, and inheritance. Replacing personal laws, which are drawn from religious scriptures, with UCC would mean laws governing marriages, divorce, adoption and inheritance would be universal to all citizens of this country irrespective of their faith and religion.
The UCC finds its roots in Article 44 of the Directive Principles in the Indian Constitution which addressed discrimination against vulnerable groups and sought to harmonise diverse cultural groups.
Article 35 of the Draft Constitution spoke of the UCC. Though mooting the idea, Dr. BR Ambedkar acknowledged that at the time, the UCC should remain voluntary.
Thus, the UCC was then rewritten as the Directive Principles of the State Policy in part IV of the Constitution of India as Article 44.
The debate over the Uniform Civil Code
Minority groups have balked at the idea of the implementation of UCC. In July 2018, Muslim women representatives sent a representation to the Law Commission of India seeking codification of personal laws as opposed to the introduction of the UCC.
While Hindu personal laws are codified, the Muslim personal laws, that are inspired by Shariah, are not.
However, those in favour say UCC would end religious discrimination, while those opposing it, say UCC would rob the country of its religious diversity and violate the provisions of Article 25 which call for the right to practice one's religion.
In 2018 the Law Commissions 2018 concluded that codification of personal laws would be more desirable than implementing UCC to end religious differences. The conclusion of its two-year exercise ended with the observation that UCC was "neither necessary nor desirable at this stage."
Does UCC apply to those who commit crimes?
Criminal laws are different from civil laws which include personal laws. Criminal law in India is codified in the Indian Penal Code (IPC), 1860, Code of Criminal Procedure (CrPC), 1973, the Indian Evidence (IE) Act, 1862 and other special laws. These determine criminal liability and the penalty for the same.
Criminal laws are uniform for all irrespective of one's faith or religion.
Civil laws help resolve disputes between organizations and individuals that are not criminal in nature. Except for personal laws, most of the civil laws are uniform in nature. However, several states have amended certain civil laws to reflect the faith of its indigenous society.
The UCC is intended to replace these fragmented personal laws. In its 2019 election manifesto, the Bharatiya Janata Party (BJP) had backed the implementation of the UCC.
Does any State follow UCC?
Goa is the only state in India that follows the Uniform Civil Code. In September 2019, the Supreme Court had observed that Goa was a "shining example" of how the UCC was "applicable to all, regardless of religion except while protecting certain limited rights".
Goa largely follows the Portuguese Civil Code (PCC), 1867, which applies to all domiciles of the state irrespective of their faith, ethnicity, or religion. However, the PCC is not completely uniform. It also makes certain provisions on religious basis.
Earlier this year, Chief Justice of India SA Bobde (since retired), had lauded Goa's UCC and urged intellectuals academically debating the issue to visit the state and "learn the administration of justice" there "to know what it turns out to be".
"Goa has what Constitutional framers envisaged for India – a Uniform Civil Code. And I have had the great privilege of administering justice under that Code. It applies in marriage and succession, governing all Goans irrespective of religious affiliation. I have heard a lot of academic talk about the Uniform Civil Code. I would request all those intellectuals to simply come here and learn the administration of justice to know what it turns out to be," CJI Bobde had said while inaugurating the new building of the Bombay High Court at Goa.
What is the courts' opinion of the UCC?
Over the years, the Supreme Court has often favoured uniform laws where it has been confronted with conflict in personal laws. However, it has been conscious of its limitations and crossing the boundary into the legislative domain.
In 1985, the Supreme Court in its Jordon Diengdeh observed that laws relating to judicial separation, divorce, and nullity of marriage were "far, far from uniform" and called for the need to implement Article 44 in letter and spirit.
However, a few months later in its landmark Shah Bano case where the SC accorded Muslim women maintenance rights, it lamented the UCC was a "dead letter" and even though it would "help the cause of national integration".
"No community is likely to bell the cat by making gratuitous concessions on this issue. It is for the State, which is charged with the duty of securing a uniform civil code and it has legislative competence to do so," the five-judge constitution bench had then observed in Shah Bano.
In fact, the Shah Bano verdict had created a furor among the Muslim community. Reacting to politics, the Congress government at the time enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted SC's Shah Bano verdict and restricted the right of Muslim divorcées to seek alimony from former husbands for only 90 days after the divorce (the period of Iddah in Islamic law).
More recently, the Supreme Court missed its chance to decide on the issue when it outlawed triple talaq in 2017.
The Supreme Court has one more chance. On December 16, 2020, the top court issued notice with "great caution" on a plea that sought uniform guidelines for grounds of maintenance, alimony & divorce across religions, race, caste, sex, or place of birth.
"You are taking us in a direction where you are asking for demolition of personal laws," CJI Bobde told advocate Ashwini Upadhyay, who had filed the plea. Reluctant to take on the matter, SC had suggested the issue be left to the legislature. "Government has the pulse of the people, or at least it is supposed to have it," CJI Bobde had said.
Upadhyay has filed at least five pleas in the supreme court which essentially seeks the replacement of personal laws with UCC.