On March 30, 1947, a Sub Committee on Fundamental Rights set up by the Constituent Assembly to discuss the much talked about now the UCC. Four members of the committee – Minoo Masani, Hansa Mehta, Bhimrao Ambedkar and Rajkumari Amrit Kaur – felt that a uniform civil code, one law to govern all matters relating to marriage and property of every Indian, should be a fundamental right. However, five other members were hesitant as it was a time when Muslim League could still be persuaded to join the undivided Indian Union. At this juncture a talk of a uniform civil code would strike a dissonant note.
During the debates in the Constituent Assembly, B.R. Ambedkar, had demonstrated his will to reform Indian society by recommending the adoption of a Civil Code of western inspiration. He stated that:
“I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations and other things, which conflict with our fundamental rights.”
They prevailed, and Ambedkar could only obtain an article of the Directive Principles stipulating that:
“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Hence not enforceable as opposed to the fundamental rights under Articles 25 and 26 which guarantees the right to practice, profess and preach any religion of our choice, gives religious denominations and sections freedom over their religious affairs, institutions, and property.
This recommendation was to remain a dead letter and that debate set the future trajectory of the UCC narrative – it was firmly cast as Hindu-Muslim issue, especially the minorities took a hard line on their personal laws and many traditional thinkers opposed a reform of Hindu practices concerning inheritance, marriage (and divorce) and adoption, as shown by the fate of the Hindu Code Bill.
It empowers women and upholds their fundamental rights.
UCC envisioned a social parity for all the citizens of the country by simplifying the legal system and eliminating the complexities and contradictory multiple laws.
To understand this we need to look into the recommendations of the Law Commission on the Uniform Civil Code:
To enact a UCC, it is imperative that a model comprehensive, inclusive and gender just family law code is drafted. The Law Commission of India has an opportunity to draft such a code that can provide clarity and attempt a difficult, but an achievable consensus. An iteration of such a law has been recommended by a group of researchers to the Law Commission.
We can rightly state that Goa as a model state for Uniform Civil Code, as it follows a common civil code that was implemented by the Portuguese in 1867 and the only state in India to enact the civil code in 1961. It applies to all citizens of Goa regardless of their religion. The code covers a wide range of matters, including marriage, divorce, inheritance, and adoption.
Following the state of Goa, the Assam government recently has proceeded to enact a law prohibiting polygamy in the state, said a retired HC judge-led expert committee, while concluding that the non-mandatory custom of Muslim men marrying up to four women is not an essential religious practice in Islam.
“It is the considered and unanimous opinion of all the members of the expert committee that the state of Assam has the legislative competency to enact law to end polygamy, subject to the provisions of Article 254 with respect to the Doctrine of Repugnancy”, as per the report submitted to Assam CM Himanta Biswa Sharma, as reported in the Times of India, dated, August 7, 2023. The issue of repugnancy arose because, the Shariat Act of 1937, a pre- Constitution legislation governing Muslim marriages and divorces, is a central law. It is a settled constitutional practice that when a subject already covered under a central law, and if a state enacts a law on the same issue, in this case polygamy, it would have to be sent to the President for her assent. Once it receives assent, the state law will be in force within its territorial jurisdiction.
The Judiciary has been playing a key role in promoting the enactment of Uniform Civil Code through various precedents. We can cite few case studies such as –
For marriage a key distinction needs to be drawn between the legal and the sacred. The law needs to concern itself only with whether the marriage is between two freely consenting adults who are not in an existing marriage. That requires a registration process. Several women’s groups have long argued that registration is the remedy needed to prevent men from marrying multiple times on the sly. The Times of India reported on August 6, 2023, that fifteen couples in and around Kolkata who got married during the Covid lockdown will have to “get married again”. They will have to visit a district court, get their marriage annulled and remarry to avoid legal hassles because their marriage registration certification bears errors that cannot be rectified. Prima facie, it appears that the marriage registrars who uploaded these personal data had erred, as stated by a senior official. Beyond that, the law should leave it open for every person to choose how to get married – whether around a ritual fire, by signing a contract, or may be at a party with friends and family.
On 30 July, 2019, the Parliament of India declared the practice of instant Triple Talaq (talaq-e-biddat) among Muslims a criminal offence, unconstitutional and made it a punishable offence from 1 August 2019, for a term which may extend to three years, shall also be liable to fine. Thus, the Supreme Court of India held that there is no necessary connection between religion and personal law in a civilized society. It is no matter of doubt that marriage, succession, and the like matters of a secular character cannot be brought within the guarantee enshrined, under Articles 25 and Article 26 of the Constitution.
For parental unions, it is critical to protect children who may be part of atypical families like those born to homosexual couples or outside wedlock. In these situations, it is critical the child is not discriminated against. Children in such families should be treated exactly as children in typical ones – entitled to inherit parent’s property. The concept of “illegitimate” children should be dispensed forever.
To enact a UCC, it is imperative that a model comprehensive, inclusive and gender just family law code is drafted. The Uniform Civil Code however may difficult but not unachievable to attain. The enactment of Uniform Civil Code aims at proper implementation of the right to equality enshrined under Article 14 and the prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth enshrined in Article 15 of the Constitution of India. It provides a homogenous structure of law and especially helps in preventing discrimination against women which generally arise due to dissimilar personal laws which favour the men. Under the Uniform Civil Code a collection of laws will be prepared which will protect the personal rights of all citizens without considering the religion, which seems to be the need of the hour. In reality this is the foundation stone of the secularism. Such progressive reforms will not only help to end discrimination against women but also help in strengthening the secular structure and encourage integrity.
As we know that there is Penal Code in our country which is equally applicable to all without considering the religion, caste and domicile. But there is no uniform law in our country with regard to divorce and succession and these subjects are controlled by the personal laws. Hence the Uniform Civil Code should be ensured to all citizens residing in areas where the population of entire geographical area resides.
At the time the Constitution was being framed, there was a 150-year-long history of communities being governed by their personal laws. Realising that the overhaul of such structures was impossible in one day, the framers of the Constitution left UCC as an aspirational goal for the future to decide.
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