The introduction of the Uniform Civil Code ("UCC") has been a perennially contentious issue in the sphere of Indian policy-making. Recently, the debate around the implementation of the UCC has been highlighted with heads of States announcing the introduction of the UCC and the growing need for the same. With the development of jurisprudence surrounding personal laws and religious practices, it has become imperative to review the necessity, introduction and successful implementation of the UCC in a country where secularism and the protection granted to religious practises is guaranteed in Part III of the Constitution of India.

This Article aims to explain the origin of the concept and its roots in the Constitution of India along with discussing the road to implementation of UCC with reference to how laws akin to UCC have been framed by other countries.

ORIGINS OF THE UCC

The origins of implementation of 'uniform laws' can be traced back to 1840, when the British Administration had introduced the 'Lex Loci Report'. The intent of the Lex Loci Report, 1840 was to establish a uniform body of laws governing contracts, crimes and evidence. However, the personal laws governing religious communities were excluded from the Report.

Thereafter, when the Constituent Assembly was set up to frame the Constitution of India, the endeavour to have a 'Uniform Civil Code' was sought to be included as Draft Article 35. During the Constituent Assembly Debates, the Draft Article 35 was deliberated upon1. The proponents argued that Draft Article 35 was a step towards maintaining the unity and secular credentials of the nation. On the other hand, provisos were sought to be introduced which provided for a bar on the supersession of personal laws of religious communities. In view of the oppositions, it was agreed by the Assembly that the idea of the UCC is not novel. Most civil laws were already uniform with the exception of laws governing marriage and inheritance, which may eventually be unified after considering the views of the religious communities.

Hence, the Draft Article 35 made its way into the Constitution of India as Article 44 as a Directive Principle of State Policy and reads as- "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.".

Currently, there is no law akin to a 'uniform civil code' governing religious communities in India. Drafts Bills to implement the UCC in India were placed for discussion in the Rajya Sabha in 2019 and 2020, however, deliberations are yet to take place.

IMPLEMENTATION OF THE UCC IN INDIA:

While laws governing issues such as marriage, divorce and succession have been codified, in a multi-religion country such as India, these issues are also governed by uncodified personal law. Resultantly, these issues are governed by an eclectic mix of statutes, cultural norms and personal laws leading to several jurisprudential issues. As early as 1985, the Hon'ble Supreme Court of India had observed that there is an imminent need for UCC in India. In Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945, it was observed as follows:

"A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so."

This view was reiterated in Sarla Mudgal v. Union of India, (1995) 3 SCC 635, wherein it was stated-

"Ours is a Secular Democratic Republic. Freedom of religion is the core of our culture. Even the slightest deviation shakes the social fibre. `But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression'. Therefore, a unified code is imperative both for protection of the oppressed and promotion of national unity and solidarity. But the first step should be to rationalise the personal law of the minorities to develop religious and cultural amity. The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about the comprehensive legislation in keeping with modern day concept of human rights for women."

Thereafter, the need for UCC in India has been resounded by the Courts on multiple occasions.

In addition to having an integrated and uniform body of law governing issues such as marriage, divorce, succession, there are other benefits to introducing the UCC. Due to the existence of separate and varied personal laws governing different religious communities, there is a difference in lifestyle, status and hierarchy between communities which could be cured by the implementation of the UCC. The UCC also offers an opportunity to consolidate the manner in which common issues could be addressed and the judicial process surrounding them could be streamlined. 'One Nation, One Law' could offer a possible solution to disparities created by different personal laws.

Furthermore, considering that ancient customary practices flow from a patriarchal system of society, the introduction of UCC provides an opportunity to correct this imbalance. The courts have been faced with umpteen situations where the personal laws have been discriminatory on the basis of gender, which could be cured by the implementation of the UCC.

The UCC could also possibly mean the end of vote-bank politics in India. Division of communities and appealing to religious communities has been a mainstay of Indian politics, which is a situation that could possibly be alleviated with the introduction of a common legal system, devoid of the possibility of offering special privileges and concessions to religious communities.

However, the implementation of the UCC does not come without its challenges. The Ministry of Law and Justice had made a reference to the Law Commission of India to 'examine matters in relation to Uniform Civil Code'. The said reference was answered by the Law Commission of India in 2018 through its 'Consultation Paper on Reform of Family Law' wherein the opinion rendered was that 'the Uniform Civil Code is neither necessary nor desirable at this stage'.2 While the Law Commission recommended the codification of personal laws, it was opined that the need for uniformity should not and cannot surpass cultural diversity, especially in a country like India. Thus, the most obvious challenge to the implementation of the UCC is the constitutionally protected cultural and religious diversity as per Article 25, Constitution of India.

Moreover, the implementation of UCC would also prove to be a challenge in terms of reconciling the varied religious perspectives on a multitude of issues. To ensure that the UCC does not lead to a disproportionate change to the practices of a particular religious community, the UCC would have to be a balanced and inclusive statute. One possible solution could be the inclusion of expansive definitions and provisions for the continuance of religious practices which have been upheld by the Courts. However, this approach would have its own challenges in terms of jurisprudential interpretation and identification of specific religious practices that can continue.

Therefore, as desirable as the implementation of UCC may seem in theory, the successful implementation would require modernising existing institutions along with sensitisation and reform of the existing personal laws.

ADOPTION OF UNIFORM LAWS BY DIFFERENT COUNTRIES:

In India, the only state to have a law akin to the UCC is Goa in the form of Portuguese Civil Code, 1867. The Code provides for laws governing marriage, divorce, right to property and remedies for breach of rights. The Hon'ble Supreme Court in Jose Paulo Coutinho vs Maria Luiza Valentina Pereira 2019 (12) SCALE 338 observed that 'Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights.'

Although, the legal system, body of laws, judicial precedents and communal situations in India make it unique in terms of implementation of the UCC, it would be apposite to look at uniform laws implemented in other countries to govern areas which, in India, are mostly governed by personal laws.

An example is the Uniform Adoption Act 1994 which was introduced as a model law in the United States of America. It governs the rights of persons to adopt children and provides for restrictions on who may adopt and be adopted. The Act serves as a model law which can be accepted by different states with variation. Similarly, the Uniform Divorce Recognition Act, 1947 is a model law which governs the registration and validity of divorce and the states can adopt the same with variance.

For instance, the acquisition of properties, transfer and assignment of rights in personal property is governed by the Personal Property Security Act, which refers to the body of statutes governing personal property in Canada. The Act is enacted by each province separately with variations as suitable to that particular Province, subject to a general uniformity across Canada.

What can be taken from the model of United States of America and Canada is the idea of a uniform model law, which can be implemented by different states with regard to their specific demographic situations. Considering the inconsistency in the constitution of religious populations, it is arguable that the UCC would have to be state-specific, rather than a 'one size fit all' legislation.

CONCLUSION:

In summation, the proponents of the UCC may argue that irrespective of the unique demography of India, a model law encompassing elements of such diversity would greatly benefit the nation as it has benefitted others. The hope, aspiration and change the UCC could usher in can be summed up in the words of Mahatma Gandhi – 'Our ability to reach unity in diversity will be the beauty and the test of our civilization'.

However, if an effective implementation of UCC is to be formulated, it could be beneficial to pay heed to the forewarning voiced by Mr. Hussain Imam during the Constituent Assembly Debates, which is perhaps more relevant than ever in this day and age:

"Mr. Vice-President, Sir, India is too big a country with a large population so diversified that it is almost impossible to stamp them with one kind of anything. In the north, we have got extreme cold; in the south we have extreme heat. In Assam we have got more rains than anywhere else in the world; about 400 inches; just near up in the Rajputana desert, we have no rains. In a country so diverse, is it possible to have uniformity of civil law? We have ourselves further on provided for concurrent jurisdiction to the provinces as well as to the Centre in matters of succession, marriage divorce and other things. How is it possible to have uniformity when there are eleven or twelve legislative bodies ready to legislate on a subject according to the requirements of their own people and their own circumstances... I suggest that there are other difficulties also which are purely constitutional, depending not so much on the existence of different communities, as on the existence of different levels in the intelligence and equipment of the people of India. You have to deal not with an uniformly developed country. Parts of the country are very very backward. Look at the Assam tribes; what is their condition? Can you have the same kind of law for them as you have for the advanced people of Bombay? You must have a great deal of difference. Sir, I feel that it is all right and a very desirable thing to have a uniform law, but at a very distant date. For that, we should first await the coming of that event when the whole of India has got educated, when mass illiteracy has been removed, when people have advanced, when their economic conditions are better, when each man is able to stand on his own legs and fight his own battles. Then, you can have uniform laws."3

Footnotes

1. 23rd November, 1948, Constituent Assembly Debates, Volume VII.

2. Consultation Paper on Reform of Family Law, Law Commission of India dated 31st August, 2018.

3. 23rd November, 1948, Constituent Assembly Debates, Volume VII.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.