The Uniform Civil Code (UCC) implies a single law for all the citizens of the country applicable to their personal matters such as marriage, divorce, inheritance, custody and adoption etc. In the context of UCC in India, Article 44 of the Indian Constitution lays down that the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. As per the Part division in the Constitution of India, Article 44 falls in Part IV which deals with the Directive Principle of State Policy (DPSP). As defined in Article 37 of the Indian Constitution, DPSP are not enforceable and justifiable yet, they are fundamental in the governance of the country, and it is the duty of the State to apply those principles mentioned in Part IV of the Constitution in making laws.
That even after being a decade of direction by the apex court in the case of Ms. Jordan Diengdeh (1985) to the Ministry of Law and Justice for such action by suggesting for the intervention of the legislature in matters as involved in the said case to provide for a uniform code of marriage and divorce, no result of intervention or implementation as such has been made so far. However, as recent development in today's time, BJP leader Ashwani Kumar Upadhyay who has been raising the issue of having UCC from time to time had filed petition demanding UCC draft which is still pending for adjudication before the hon'ble Delhi High Court.
BACKGROUND OF ORIGIN:
The concept and origin of the Uniform Civil Code in India can be traced back to colonial India when the British government submitted a report in 1835 emphasizing the need of uniformity in codifying the Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification. Later, with the increase in legislation dealing with personal issues during the British rule, the government was compelled to form a committee and thus, the B N Rau Committee was formed to codify Hindu law in 1941. Thereafter, based on recommendation of the said B.N Rau Committee, the bill regarding Hindu Personal Law was then adopted in 1956 as the Hindu Succession Act codifying the law relating to intestate or unwilled succession among the Hindus. However, the Act 1956 was not applied to other such as Muslim, Christian and Parsis as they are governed with separate personal laws.
RECOGNITION STATUS OF UCC IN INDIA
Reading modern history of India, it revealed that the British allowed personal civil laws of various Indian communities to continue in civil matters like marriages, divorce adoption, succession etc. Notably, it systematized the entire process of law making. Under the Charter Act of 1833, all the law-making authority was in the hands of the Governor-General. The Indian Law Commission at that time was headed by Lord Macaulay who had been appointed for codification of existing laws. Thus, it was for the first time in the history of India, the Indian Penal Code and the Code of Civil and Criminal were enacted through efforts of Lord Macaulay making applicable the Said Code's applicable throughout the entire country bringing all Indians under one umbrella of a single system of laws.1 The interpretation were now rested with the Judiciary of the country.
Apart from the above uniformity Code, certain other Act/law such as Indian Contract Act 1872, Transfer of Property Act 1882, Indian Partnership Act 1932 and the Indian Evidence Act 1872 had uniform applicability in the country. However, in those Act's, States have made numerous amendments and thus in certain matters, it has a diversity to those law. Likewise, even most recently, despite the enactment of uniform Motor Vehicle Act 2019, several states refused to be governed by it. A conclusion is drawn that the concept of UCC is not new in Indian law which the framers of the Constitution mindfully kept under Article 44 of the constitution for the effective governance of the Country.
JUDICIAL ATTEMPT FOR THE NEED OF UCC IN PERSONAL LAW:
The courts in order to bring uniformity to the laws of the Country, have also expressed the need of having one single code as to personal laws. The apex court in Shah Bano case (1985)2 said that it is a matter of regret that Article 44 of the Constitution has remained a dead letter. The apex Court also said that a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It was also observed that the state is charged with the obligation of securing UCC for the Citizens of the Country. Moreover, in the case of Sarla Mudgal Case (1995)3 , which dealt with issue of bigamy and conflict between the personal laws existing on matters of marriage, the apex court said and expressed the same meaning to Article 44 of the Indian Constitution. Furthermore, the apex court in the case of Ms. Jordan Diengdeh (1985)4 , opined and observed for the reformation of law of marriages by having a uniform law applicable to all people irrespective of religion and caste. Even the High Courts have observed the need for the UCC as reiterated by the Supreme Court from time to time. However, till date it remains a debatable topic pending before courts waiting for an outcome.
IMPLICATION OF HAVING ONE CODE OVER PERSONAL LAWS
Having a single code will protect the vulnerable section of the society including women, religious minorities and will also promote the nationalistic feeling of unity. It will also simplify the complexity of having different marriages ceremonies, adoption, and succession etc. for all citizens irrespective of their faith. One can say that, with the implementation of UCC, all the personal law will cease and will eliminate the gender bias within the existing laws.
CHALLENGES TO IMPLEMENTATION OF UCC ON PERSONAL LAW
There is exception to all central family laws enacted by the Parliament. Firstly, the preliminary sections of central family law declare its non-application to Jammu and Kashmir. Secondly, such law does not have application to the union territory of Pondicherry pronouncing that nothing contained in this Act shall apply to the Renocants of the union territory of Pondicherry5 . Third exception is that none of the central family law is applicable in Goa, Daman and Diu which relied on the code given by Portuguese. Fourthly, there is an exemption to the north-eastern states of India which grant special protection under Article 371 (A) to 371(G) of the Indian Constitution to the states of Nagaland, Mizoram, Assam, and Manipur etc. envisaging that no parliamentary legislation will replace the customary law and religion-based system for its own administration.
Another major challenge will be of Communal Politics that one can say of majoritism. Furthermore, implementation of UCC will abrogate the concept of Freedom of religion enshrined in Article 25 of the Constitution getting into conflict with Article 14 of the Indian Constitution too.
Looking into the origin of the UCC, it is clear that even the British did not interfere much on the personal law. Judiciary had also played a vital role in having a codified law as is evident from the case of Shah Bano case (1985) pronouncing entitlement of Maintenance under section 125 of Criminal Procedure Code for divorced Muslim wife. However, reluctantly Muslim Women (Protection of Rights on Divorce Act 1986) was later enacted diluting the secular judgement of the Supreme Court. Thus, Muslim women were again deprived of the provision of section 125 of code of Criminal Procedure. But of course, later with the Danial Latifi case6 Judgement, the damage that law cause was subverted.
Thus, looking into Article 44 of the constitution, it is the duty of state to apply the UCC in governance listening to the grievances. The random implementation and application of the same at one's own whims will cause prejudice to the integrity and unified diversity of the country amounting to breach of fundamental rights. It can be understood that the framers of the Constitution had cleverly kept the concept of UCC within the ambit of DPSP giving importance to the diversified society. It can also be concluded that Article 44 of the constitution even if implemented, enforcement can be made after thorough analysis of the social, economic and culture of the states and not as a whole, like raising the marriageable age of girl child to 21 from 18 may not cause jeopardy to the citizens or societies. Last but not the least, the legislature and the judiciary must keep in mind the above challenges while enacting, implementing, and interpreting the UCC as the finality lies in the decision of the Parliament and the judiciary
1. Modern Indian History by Sonali Bansal & Snehil Tripathi @ Pg.3.47
2. 1985 AIR 945
3. 1995 AIR 1531
4. 1985 AIR 935
5. The Pondicherry (Extension of Law) Act 1968
Originally published January 2022
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