In a democracy like India where the Constitution provides for equality to all its citizens, different sets of personal laws for different religious communities go against this very principle of the constitution. Is it time for India to adopt a Uniform Civil Code.

Model Answer

Answer:

Recent observations by the Supreme Court have put the spotlight back on the debate over a Uniform Civil Code.  A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.

The Second Law Commission, constituted by the British Government, which submitted its report in 1835, 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.

The Constitution of India on UCC

• Article 44 of the Constitution of India lists Uniform Civil Code as one of the Directive Principles of State Policy.
• It lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.
• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “the state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be the obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

Is there one common personal law?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.
• Muslims of Kashmir were thus governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on registration of marriage among Muslims, laws differ from place to place.
• It was compulsory in J&K (1981 Act) and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland.
• Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc. States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws. Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.
• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List. Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

The debate:

• The debate on the UCC is centred on the argument to replace individual personal customs and practices of marriage, divorce, adoption and successions with a common code.
• Those in favour of one code argue that it will end discrimination in religions.
• Detractors contend that it will rob the nation of its religious diversity and violate the fundamental right to practise religion enshrined in Article 25 of the Constitution.
• In fact, they hold that a state action to introduce the UCC is against the quintessence of democracy.
• The secular state is, after all, an enabler of rights rather than an inhibitor in sensitive matters of religion and personal laws.

The road ahead:

Universal Civil Code is mandated by the Constitution itself. If the country not ready for it after 70 years, things can take a wrong turn. It’s time to take a firm decision to make it a reality.