Reading time : 8 minutes
Table of Contents
- Development of Uniform Civil Code in Colonial Times
- Post-colonial era
- Uniform civil code through Constituent assembly debates
- Article 44
- HINDU CODE Bill
- Shah Bano Case
- Personal laws and Article 13
- UCC and Gender Equality
- UCC in Goa
India is a diverse country. From north to south and east to west the diversity is very prevalent. With 6 major religions and a number of castes and sub-casts. Ours is the most diverse country on the planet. Each religion stems from different roots and ancient scriptures. These customs and usages have been ever evolving and, in the process, have taken form of laws. These laws are termed as personal laws. The Hindus, the Mohammedans, the Christians, the Parsis all possessing their own personal laws dealing with the issues arising within their communities. Apart from the broader religious distinctions in personal laws the laws also differ from caste to caste and even from one geographical territory to another. There is no one set of rules governing all even though all live in one country. That’s the Unity in Diversity Nehru talked about in his book. []
Talking about preserving the Diversity in India the Supreme court of India in Navtej Singh Johar v. UOI [] said ‘vision is to accommodate all differences of culture, ideology and orientation’.
Even when we talk about protecting this diversity, the Uniform civil code has always been a point of contention right from the constitution of this nation, in fact even before that. The Uniform Civil Code seeks to bring all personal laws under one common framework governing all these diverse religious and cultural communities. Hence creating “one rule for all”. It was the vision of the Framers of the constitution to eventually establish a common code for all in the pursuit of achieving oneness and integrity []. But it’s been 75 years since the inception of this Republic and the Uniform Civil Code (hereinafter referred to as UCC) still remains a vision to be sought. With the election manifesto of the current government promising the implementation of UCC across India and many state Chief ministers too talking about working towards the same the discussion on this topic cannot be any more relevant.
But before we come to the current scenario lets look into the history and development of UCC in this country.
- Development of Uniform Civil Code in Colonial Times
The debate over the UCC dates back to the 19th Century when India was a British colony and the administration legal, legislative and executive was managed by the colonizers. The Lex Loci report of 1840 though talked about the unification and codification of Indian laws relating to crimes, evidence and contracts, it deliberately kept out of its realm the personal laws. Some attribute this to the British policy of Divide and rule. Some attribute it to the fear of backlash from the orthodox religious communities taking lessons from the Mutiny of 1857. The Queens Proclamation of 1858 declared nonintervention in matters of religious beliefs in British India.
Still the Crown did not completely abstain itself from legislating on religious matters. As stated earlier there were discrepancies even within the religious laws for example the Shudras allowed widow remarriage contrary to Hindu law. There was conflict in customs governing communities like Jats and Dravidians. The Hindu Widow Remarriage Act 1856, The Married Women’s Property Act 1923 and the Hindu Inheritance (removal of disabilities) Act 1937 may be seen as some of the instances where the British Raj tried to bring reforms in the personal laws.
Even the sharia law was enforced for Muslims across the country as there were differences as to the local laws as many of the converts still continued to abide by their local customs and usages. All of this created a lot of issues in delivering justice. In 1866 the Judicial committee of the Privy Council placed the Shariat over all the local customary laws. In the following years the High courts of Calcutta (1882) and Allahabad (1900) disallowed the use of customs. However, the Judicial Committee of 1913 decided that customary laws play an important role in Muslim law and hence allowed them.
It also needs to be noted that only the Hindu and more so the Muslim communities were feared in the sense of legislating on them. The Indian Christian Marriage Act 1872 brought major reforms and procedural changes in regard to Christian marriages.
- Post-colonial era
As seen above even after a number of legislations there still existed large scale discrepancies in personal laws. The B.N Rau committee which was set up to study the need for common Hindu laws concluded that it was time to move towards a Uniform Civil Code in order to get past the discrepancies and unequal treatment of women. This committee only focused on Hindu laws.
Implementation of common code was also the intention of the constitutional framers and thus Article 44 was inserted in the Constitution.
- Uniform civil code through Constituent assembly debates []
There was a lot of contention over the UCC in the constituent assembly. There was a division over whether or not to include UCC in the Fundamental Rights Chapter. There was backlash pre-dominantly from the Muslim members.
Kazi Kamaruddin argued that local laws and customs are very significant part of Muslim personal law and there was not a single Muslim who wanted change in the personal laws. So, the state should not interfere.
Hasrat Mohani contended that the Muslims derived their personal laws from the holy Quran and they are interpreted therein. No human agency has ever interfered in these personal laws. Any interference will lead to a significant backlash from the Muslim community.
Naziruddin Ahmed was of the view that there was no doubt that there would be a common civil code in this country. But the state should not be in a hurry. What the Britishers couldn’t do in 175 years what even the Muslim rules did not do over 500 years the state should not at once. That the state should work with caution and all the communities that are to effected by any such legislation should be comprehensively consulted. Another member called the article tyrannous to the minorities.
In support of the article KM Munshi (Bombay General) argued that the submission that it would be tyrannous to the minorities is farfetched and unreasonable. He also stated that many modern Islamic nations do not recognize the local customs of minorities. He also submitted that “When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Cutchi Memons were highly dissatisfied. They then followed certain Hindu customs; for generations since they became converts, they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried their point. The Khojas and Cutchi Memons most unwillingly had to submit to it. Where were the rights of minority then?”
He also said that if there is no Civil code it would be disadvantageous not only to the minority but also to the majority. Hindus have different schools of thoughts Mitakshara,, Dayabhaga etc all with different sets of rules. How come in a unified nation a same religion be governed by different laws. Addressing the opposition of Hindus to the Civil Code Munshi said “They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for instance, equality to women. But you have already passed a Fundamental Right to that effect and you have an article here which lays down that there should be no discrimination against sex. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India”.
DR. B. R. Ambedkar while addressing the issue whether it was desirable or possible to have a common code stated that there was already a uniform criminal code in Indian Penal Code, there is Transfer of Property Act and Indian Contract act for certain civil matters and various other examples proving that there is a Uniform Code in the country except for the matters of marriage and succession. That only a little corner was left untouched and Article 35 [ UCC was Article 35 in the original draft] was intended to bring about that change. He too like Munshi reiterated that many Muslim communities were already governed by Hindu derived laws due to their conversion and it was only recently after Shariat was made mandatory that they came to be governed by it. He stated that “Therefore if it was found necessary that for the purpose of evolving a single civil code applicable to all citizens irrespective of their religion, certain portions of the Hindus, law, not because they were contained in Hindu law but because they were found to be the most suitable, were incorporated into the new civil code projected by article 35, I am quite certain that it would not be open to any Muslim to say that the framers of the civil code had done great violence to the sentiments of the Muslim community”.
But Ambedkar also clarified that the article was not a compulsion on the state to enact a Uniform Code as soon as the constituent comes into being, rather it was more of an advisory. So, the citizens should not be apprehensive that the parliament will immediately proceed to implement a code found objectionable by them.
B.N. Rau the advisor to the Constituent Assembly stated that the Directive Principles were intended as moral precepts for the authorities of the state and that they have at least an educative value.
The issue whether to include UCC in Fundamental rights was settled by a 5:4 majority. The fundamental rights sub- committee led by Sardar Vallabhai Patel held it to be of less importance than freedom of religion and outside the scope of Fundamental Rights.
- Article 44
Article 44 included in Part 4 of the Constitution states that – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India
The very fact that it was included under Directive Principles of state policy and not under Fundamental Rights highlights its advisory nature and lack of enforceability. Article 37 makes it very clear that none of the directive principles will be enforceable by any court, but the principles are fundamental in governance of the country and it shall be the duty of the state to apply these in making laws.
Also read: LEGALITY OF MARITAL RAPE
It is also interesting to observe the language used in the Articles of Part 4 in most of the articles the language is the state shall in particular thrive, shall be the obligation of the state, shall in particular direct its policy, shall endeavour by suitable legislation etc while in the case of article 44 merely says that the state shall endeavour which seems to give it less of a priority.
The Supreme Court in Minerva Mills 1980 [] that the Indian Constitution was founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles). To give supremacy to one over the other was to disturb the harmony of the Constitution.
But still in reality there is no contention that Fundamental rights take precedence over Directive Principles.
- HINDU CODE Bill
As mentioned above [post-Colonial era] The B.N. Rau committee’s report directed the creation of a uniform code for all Hindus. The report received wide publicity and in 1944 the Hindu Commission was revived under the chairmanship of Rau and a draft code including Succession, Maintenance, Marriage, Minority Guardiandship and Adoption was prepared. The Law Ministry revised the first draft in 1948 and made some changes to it, making it more suitable for discussion in the Constituent Assembly, where it was then introduced. It was referred to a select committee under the chairmanship of Dr Babasaheb Ambedkar, and the committee made a number of important changes in the Bill. The bill when introduced faced major backlash, the major opposition came from Sardar Vallabhai Patel, Pattabhi Sitaramaiya, M A Ayyangar, M M Malviya and Kailash Nath Katju. The then President Dr Rajendra Prasad threatened to use his powers of sending the bill back to the parliament or vetoing it. Ambedkar resigned over the bill not being passed. Nehru agreed to divide the bill in parts and dilute several provisions and eventually 4 different acts were passed namely, The Hindu Succession Act, Hindu Marriage Act, Minority & Guardianship Act and Hindu Adoption &Maintenance Act.
- Shah Bano case
The UCC debate again came in the limelight during the Shah Bano Case [] The case highlighted the conflict between secularism, UCC and freedom of religion. Islamic groups sighted the judgment as an attack on their religious freedom and right to their personal laws. Western concept of secularism -non-interference by the state in religious matters – was used to mobilize support against the judgment. A question whether secularism, freedom of religion are in conflict with UCC was raised. The doctrine of secularism adopted by us did not mean absolute non-interference but principled distance from the religion. Thus, implementation of Article 44 was under the provision of secularism. Article 44 being based on the concept that there is no necessary connection between religion and personal law, Marriage, succession and like matters are of secular nature so law can regulate them.
The whole debate can be summarized by the judgment given by Justice R.M. Sahai. He said that Ours is a democratic republic that is secular. Religious liberty is at the heart of our civilization. The social fabric is shattered by even the tiniest departure from it. However, religious activities that violate human rights and dignity, as well as sacerdotal smothering of fundamental civil and material liberties, constitute oppression, not liberty. As a result, a uniform law is required to safeguard the downtrodden as well as to promote national unity.
- Personal laws and Article 13
Article 13 of the Constitution addresses Laws inconsistent with or in derogation of fundamental rights.
In Narasu Appa Mali [] the court held that Personal laws are not Laws for the purpose of Article 13.
As per Article 13 (3) a law includes customs and usage, but Justice Chagla in this case differentiated personal laws from customs and usages stating that personal laws are derived from scriptures and texts, while customs and usages are more specific to practices that deviated from personal law. Hence both of them being different personal laws were not part of law under Article 13.
Justice Chagla further consolidated this stand saying that if keeping personal laws out of the ambit of Article 13 weren’t the intention of the framers then they wouldn’t have included article 17(abolition of untouchability), article 25 (Freedom of conscience and free profession, practice and propagation of religion), article 26 (Freedom to manage religious affairs) and article 372 (Continuance in force of existing laws and their adaptation) as it would leave these articles redundant.
After this judgement a number of similar as well as diverging judgements have been pronounced by the court.
In cases like Krishna Singh v. Mathura Ahir 1980, Reynold Rajamani & Anr. v. UOI 1982 and Pannalal Bansilal & Ors. v. state of A.P 1996 the court held that personal laws are not affected by Fundamental Rights i.e Part 3 of the Constitution and shying away from the matter declared that it was on the legislature to examine this nexus.
However, a three-Judge Bench of the Supreme Court in the case of Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil 1996 has taken a contrary view and has held that personal laws to the extent that they are in violation of the fundamental rights are void.
In John Vallamotham v. UOI 2003 while considering the validity of S. 118 of the Indian Succession Act 1925, struck it down as being violative of Article 14 of the Indian Constitution. The court held that in any case, even if a provision wasn’t really unconstitutional the day it was got enacted or the Constitution entered into operation, it may be deemed unconstitutional as a result of circumstances that emerge later.”
The right of women to equality, compared to men is universally recognised and that
discriminating against a woman on the basis of her gender is immoral. It was also said that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. And any legislation that brought succession and the like matters of secular character within the ambit of Articles 25 and 26 was suspect legislation.
In the recent Sabrimala judgement [] too the court differed from the view taken in the Narasu Appa case. Justice D.Y. Chandrachud observed that “Customs, usages and personal laws have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny is to deny the primacy of the Constitution.”
In Shayra Bano v. UOI 2017, a constitutional bench with a 3:2 majority held that triple talaq was unconstitutional being violative of Part 3 of the constitution. The court also opined that there was a need to reconsider the views expressed in Narasu Appa.
Increasingly more and more judgements have differed from the view taken in the Narasu Appa Mali case. If the implementation of a Uniform Civil Code is to be achieved the courts need to further deviate from it and work towards bringing personal laws in the ambit of Article 13.
- UCC and Gender Equality
A plea has been filed in the Supreme court just 2 months back seeking issuance of direction for constitution of a High-level Judicial Committee for preparing a UCC for ensuring gender equality, justice and dignity of women. Let us examine how implementation of UCC relates to achieving gender equality. Personal laws though amended are still very derogatory towards women. May it be polygamy or refusal of maintenance in Islamic law, or may it be refusing women the right of primary guardianship in Hindu Minority and Guardianship Act. In Parsi law a Parsi woman marrying a non- Parsi man loses the property rights and rights to practice religion but the same is not true if the situation is reversed. These are only a few examples but the are many more that make it very clear how personal laws look down at women. Article 51 (A) e which calls to renounce practices derogatory to the dignity of women should be kept in mind by the state while framing laws. In Sarla Mudgal v. UOI [] the court held that converting to Islam only for the purpose of entering into a second marriage is circumvents Section 494 of IPC [] and cannot be allowed. The court was highlighting the injustice done to the first wife. The court also pointed out that it was the failure of the Governments to implement the UCC mentioned in Article 44 of constitution. But some doubts can also be raised as to the effectiveness of UCC in countering gender discrimination. Considering the Goa UCC, the code is not applicable to Catholics and other communities in the same manner. Also, the code allows Hindu Men to enter into Bigamous marriage in certain situations, like when the wife is not able to bare a son. All these doubts need to be addressed.
- UCC in Goa
Goa is today the only state in India that has uniform civil code regardless of religion, gender, caste. In Goa Hindu, Muslim, Christians are governed by the same law with regards to marriage, divorce and succession. When Goa became the part of union of India in 1961 by the virtue of the Goa Daman and Diu administration act 1962 the parliament authorized the Portuguese civil code of 1867 to Goa which shall be amended and repealed by competent legislature.
In Goa marriage is a contract between two people of different sex with the purpose of living together and constitute the legitimate family which is registered before the office of civil registrar. And the particular rules and regulations have to be followed by the parties after that they can live together and start their life. But there are certain limitations according to which these categories of people are prohibited to perform marriage for example: any spouse convicted of committing or abetting the murder of other spouse shall not marry. Also, a Muslim man cannot commit polygamy, husband and wife have equal share in property, assets are apportioned equally in case of divorce.
Even the former CJI SA Bobde lauded the UCC in goa and termed Goa as a shining example of UCC. But there are certain criticisms of the Goa model like the religious ceremonies of marriage given more importance than the compulsory registration, provisions of bigamy for Hindu male in certain cases, no separation of church from the state as the church laws are used for solemnizing the marriage, the church even has authority to annul the marriage.
Like the framers of the Constitution dreamed working towards the implementation of UCC should be the aim of the government. India is a unique blend to various communities and their personal laws. These different laws create various problems and pose an unnecessary challenge to the integrity and unity of this country. The contentions raised in the Constituent assembly Debates need to be examined deeply as the issues and counters raised there remain relevant even today. The framers were reluctant to implement a Common Code at the time of independence because it was seen that the nation isn’t ready for it. But times have changed. No doubt the government has worked towards achieving neutrality through various legislations by making women coparcenary in fathers’ estate in case of Hindus, the triple talaq bill, the raising of legal marrying age of women to 21 placing both men and women at an equal pedestal. But there still seems to be a long journey to be travelled to reach the goal.
 The Discovery of India, 1946
 Navtej Singh Johar v. Union of India 2018 WP (criminal) No. 76 of 2016
 Article 44, Constitution of India
 Constituent Assembly Debate on 23rd November 1948, Indian Kanoon
 Minerva Mills v. Union of India 1980 AIR 1789
 Mohammed Ahmed Khan v. Shah Bano Begum 1985 AIR 945 SC 945
 The State of Bombay v. Narasu Appa Mali AIR 1952 ILR 1951 BOM 775
 The Young Lawyers Association v. The State of Kerala 2018 WP (civil) No. 373 of 2006
 Smt. Sarla Mudgal, President …. V. Union of India & Ors. 1995 AIR 1531, SCC (3) 635
 Section 494 IPC – Marrying again during the lifetime of husband or wife.
Author: Yogesh Naidu, Shri. Navalmal Firodia Law College, Pune.
Editor: Kanishka Vaish, Senior Editor, LexLife India