The Uniform Civil Code, or UCC, has been a topic of contention for decades. There are people who support and oppose the UCC. Some people support UCC because they believe that there must be a similar set of laws that would govern every citizen of a country. Some people oppose it because they think that their religious freedom will be compromised, and it is regarded as an attempt by the central government to homogenize Indian society. However, these arguments have been made from a layman's perspective.

Contrary to popular opinion, the effects of the implementation of UCC will not be limited to any one community or another. Instead, it will have longstanding implications for each and every person in the country. The UCC seeks to do away with the personal laws in the country that have governed the aspects of Marriage, Divorce, Adoption, and Succession for decades.

There was a long-standing debate on the matter of uniform civil code in the constituent assembly. There were contradictory opinions on the matter from members belonging to different communities. The sub-committee on fundamental rights came up with two sets of rights, i.e., justiciable and non-justiciable. The things that were in the latter half could not be challenged in court.

These later formed the Directive Principles of State Policy. The Uniform Civil Code found itself in the DPSPs. Some members weren't happy with this. Within those members were two groups, i.e., one set of members wanted it to be placed within fundamental rights obligating the government to implement the UCC within 10-15 years, while others thought it would infringe on people's religious freedom. (The Centre for Law and Policy Research )[1]

Under Article 44 of the directive principles of state policy, "the state shall endeavor to secure for all its citizens a uniform civil code." As it was part of the DPSPs, the parliament was not obligated to bring it into effect and was left to the future governments to decide whether to bring in a Uniform Code. The recent interest in this subject has come from the recent notification issued by the 22nd Law Commission of India, headed by Ritu Raj Awasthi, a former chief justice of the Karnataka High Court.

This notification was to elicit public opinion on a uniform civil code for the country. This notification surprised many as the 21st Law Commission stated that a UCC was "neither necessary nor desirable at this stage for the country." (Deka, 2023)[2] In this project, I will elucidate whether the Uniform Civil Code is essential at this stage in India and also the challenges that underlie its implementation.

Necessity For The UCC

Differences In Personal Laws

Marriage

Marriage is considered a sacrament for Hindus. For them, marriage is a necessary samskara. At the same time, Muslim marriages are a civil contract for the purpose of legalizing sexual intercourse and the procreation of children. It is not a sacrament but a contract. Parsi marriages and Christian marriages are also contracts. However, Christian marriage can also be regarded as a sacrament through religious teachings. So, the UCC must recognize both aspects and regard marriage as a sacrament and a contract.

Under the Hindu Marriage Act, bigamy is an offense punishable by imprisonment for up to 7 years; however, in Muslim personal law, a man can have up to 4 wives, and even if he has a 5th wife, it won't be a penal offense rather the marriage would just be irregular. In modern India, only Muslim men are allowed to have more than one wife. Under Muslim law, intersect or interschool marriages are allowed, but interreligious marriages are restricted. A Sunni male can marry Christians or Jews but not Sikhs, Hindus, or Parsis.

However, even if he marries them, the marriage won't be void. It would just be irregular. However, Sunni females cannot marry non-Muslim men. Under the Shia school, interreligious marriages are not allowed for both females and males. Under the Hindu Marriage Act, there are prohibited relationships. Marriage between first cousins is prohibited; however, similar marriages are not prohibited under the Muslim Marriage Act.

Marriage between cousins is prohibited under Hindu Law, while it is allowed under Muslim Law. The Hindu Marriage Act does not allow marriage between first cousins. (Thomas, 2010)[3]. However, first-cousin marriages are permitted for Muslims in India.

The marriage involving a person of unsound mind is void under the Special Marriage Act but voidable at the instance of the other party under the Hindu Marriage Act and permitted with the consent of the marriage guardian under Muslim Law. A concept of Muta marriages exists in Muslim law, which permits temporary marriages. Before the marriage, a duration is specified, after which the marriage will cease to exist. The wife of a Muta marriage cannot get maintenance. These are some of the irregularities in the marriage laws of different religious groups. These irregularities need to be settled on the grounds of morality and contemporary legal scenarios. (Diwan, 1983)[4]

Divorce

According to the Hindu Marriage Act of 1955, a Hindu woman can divorce her husband if he has had voluntary sexual intercourse with any person other than his spouse after the solemnization of their marriage. However, a Muslim woman cannot divorce her husband on similar grounds.[5]

In case a Muslim woman has been divorced by her husband, the husband is free to remarry her. However, in case he divorces her three times, the woman has to follow the practice of Nikah Halala. Under this, the Muslim woman has to marry another man and consummate their marriage; later on, only if the husband dies or willingly divorces his wife can the woman go back to her estranged husband. Such practices are morally unacceptable and must be banned.

Succession

The Hindu Succession Act of 1956, which governs the matters of inheritance and succession for Sikhs, Jains, Buddhists, and Hindus, states that a Hindu woman and man have the same right to the property of their deceased parents. This means that there is no distinction between the inheritance rights of a man and a woman under this law. Even if the woman is married, she is still entitled to the same rights. Another provision under this Act is that in case a man dies, his mother, children, and wife are entitled to equal shares in his property. However, the deceased man's father shall not receive any share of his property during the lifetime of his son's mother, children, and wife.

In 2022, a petition was filed in the Supreme Court by Kamal Anant Khopkar, challenging the gender bias in the Hindu Succession Act. The petition stated that section 15 of the 1956 Act 'unveils deeply rooted patriarchal ideology.' Section 15 of this Act deals with the general rules of Succession in the case of female Hindus. It gave the heirs of a husband more priority than the deceased's parents. (Rajagopal, 2022)[6]

Under Muslim personal law, a Muslim woman is entitled to 1/4th share of her husband's property, and in case they had children, she is entitled to 1/8th of his property. Muslim women are also entitled to the property of their deceased parents; however, the share of property that they are entitled to is half that of their male counterparts.

The inheritance and succession of Christians, Parsis, and Jews are governed by the Indian Succession Act of 1925. A Parsi woman shall be entitled to an equal share of her children. The deceased man's parents shall be entitled to half the share of the children of the man. The property shall be divided equally between the widow and the children if the parents are not alive. A Christian woman whose husband died would receive 1/3rd of the property if the deceased man had children. She receives half of his property if he does not have children but has other relatives or heirs. (Nath, 2022)[7]

These instances show that there are inconsistencies in the succession and inheritance laws of different communities. They need to be rectified, and the woman must receive an equal share as her male counterparts.

Gender Equality

It has been noticed that women have been discriminated against by these personal laws. According to Muslim personal law, a girl who has attained 15 years of age can be married. However, in other personal laws, the marriageable age for women is 18. In India, Muslim men can practice polygamy, which is indeed contrary to the interest of women.

A Muslim woman cannot divorce her husband on the grounds of adultery, while a Hindu woman can. Muslim women are only entitled to half of what their male counterparts are entitled to. Like the above mentioned, there are various instances where women face discrimination due to the personal laws of different communities.

These instances of discrimination can be noticed in many provisions of personal laws. A Uniform civil code will ensure that the provisions are made gender-neutral and reduce the discrimination faced by women. Even though many might argue that personal laws can be amended, the sheer number of provisions that will require amendment makes this unfeasible.

Secularism

People believe that a Uniform Civil Code aligns with the secular nature of our constitution and treats all religions equally. Doing away with religion-based segregation for different religious communities and establishing a uniform code for all will foster uniformity among different sections of society and may increase unity among them. India already has secular laws except in matters that the UCC seeks to deal with. Many have argued that the Uniform Civil Code will bring about uniformity in the civil aspects of all the people of the country. Moreover, it upholds the idea of equal treatment of people before the law, irrespective of their religious identity. (Chugh, 2023)[8]

Arguments Against The Uniform Civil Code

Starting with the debates in the Constituent Assembly regarding the Uniform Civil Code, Mahboob Ali Baig Sahib Bahadur, a member of the assembly, stated that even though most people are of the view that for a country to be secular, a common set of laws is to be followed by the citizens.

He argued that in the truest sense, a state is secular when the people of that state have the freedom to practice their religion and observe their own life and the common laws of their own personal codes. Other points raised against the UCC in the assembly were that it violated the right to religion and would create disharmony within the Muslim Community. It was also argued that no interference should occur without religious communities' approval. (The Centre for Law and Policy Research )

If not appropriately implemented, the UCC will face a massive backlash from the minority communities in India. Taking into consideration the ideas and beliefs of all communities in India might not be feasible because of the extent of diversity in India. The current political situation in India is highly polarised, which may not provide a conducive environment for the implementation of UCC. The political parties may make the issue of the UCC into a communal issue, which would again prove to be detrimental. (Gupta, 2023)[9]

Critics argue that it cannot be forecasted as to what extent the UCC will be able to provide gender justice, which is considered one of its primary goals. Will the UCC have a provision for same-sex marriages, and will it indeed provide equality to women? It is a question that cannot be answered at this stage. However, it is to be noted that the government had filed an affidavit in the Supreme Court against legalizing same-sex marriages. So, it cannot be expected that the government will themselves add such a provision in the UCC.

Many argue that if the primary goal of UCC is to bring about gender justice, then the personal laws that are discriminatory can be amended. They argue that there is no need for UCC and that merely amending the personal laws will do.

Challenges In The Implementation Of UCC
Religious Minorities
The minority communities often see UCC as an attempt to interfere with their religious freedom and argue that implementation of UCC will hinder their right to religion enshrined in Article 25 of the Indian Constitution. The Muslim community often sees themselves as the target of the UCC. The All-India Muslim Personal Law Board asked the law commission "why only Muslims were not being exempted from the proposed UCC when the government is ready to exclude tribals." This is a clear manifestation of the fact that Muslims still see themselves as the "target group" of UCC. (Salam, 2023)[10]

This is a challenge that is very difficult to overcome but needs to be overcome for the smooth implementation of the UCC. The argument that the UCC will violate the Right to freedom of religion is a false notion. The Supreme Court had coined the essential religious practice test in the case of The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt.

According to this test, only essential religious practices shall be protected by Article 25. Many secular practices may be considered an essential part of religion. However, such notions might, in reality, be superstitious and not essential to religion; hence, they shall not be protected by the Constitution of India. The Supreme Court held this in the case of Durgah Committee Ajmer v. Syed Hussain Ali and Ors. (Ghosh, 2017)[11].

The UCC indeed seeks to deal with secular aspects that are not essential to religion, and this means that these secular aspects are not protected by Article 25. Minority communities should be made to understand the same. Article 25 clause (2) subclause (b) provides an exception to Article 25. It states that if any law advocates for positive reform and social welfare, then the operation of this Article shall not be affected.

India has 17 crore Muslims. Even though it may seem like a large number, they are still a minority community in India. The Muslim community feels that the implementation of the UCC will be a threat to their distinct religious practices. They feel that the implementation of the UCC will homogenize society and interfere with their religion. (Wajihuddin, 2023)[12]

Tribal Areas
The Uniform Civil Code, even if implemented in India, may not apply to some parts of Northeastern India. According to Schedule 6 of the Indian Constitution, unless and until the state legislatures of Assam, Meghalaya, Tripura, and Mizoram ratify the center's decision, it shall not be applicable to some tribal areas of these states.

This is why their views must be considered if the UCC is to be applied to these states. (Prasad, 2023)[13]. Article 371A and 371G also exclude the applicability of a parliamentary law on customary practices unless the legislatures of Nagaland and Mizoram give their approval. (Kumar, 2016)[14]. This necessitates a consensus among all the communities about the various provisions, taking into consideration the practices and beliefs of different communities.

Legal Complexities
Article 44 does not clearly explain how the Uniform Civil Code should be made. The Supreme Court has given many judgments that have asked the government to enact a 'common civil code' and mentioned the necessity of it. Some examples of such judgments are Ahmed Khan v Shah Bano Begum and Others, Jordan Diengdeh v S S Chopra (1985), and John Vallamattom and Another v Union of India (2003). However, even the court has no idea how this civil code should be framed. (Kumar, 2016)

A balance needs to be stricken between all the personal laws and the goals of the Uniform Civil Code. Should a marriage under the UCC be seen as a sacrament contract or both? Should first-cousin marriages be allowed or not? Should the property division between men and women be equal in all circumstances or not? These questions need to be answered by taking public opinion into consideration.

Conclusion
Throughout this project, the need for UCC, the challenges to its implementation, and the arguments against UCC have been looked at. Based on all these arguments that have been put forth, the following conclusion shall be drawn.

Most people in India support a uniform civil code because they argue that it fosters national integration and gender equality. During the constituent assembly debates, people in support of UCC argued on the following lines. It is crucial to uphold the secular nature of our country (The Centre for Law and Policy Research ). As mentioned above, the personal laws in themselves are very different from each other and contain different provisions. Marriage, divorce, and succession laws are very different for different communities. So, the UCC strives to bring about uniformity in these aspects. The personal laws are indeed discriminatory towards women, and without UCC, it would be difficult to change these provisions.

It was also argued that a Uniform civil code could bring about amity among communities. If not implemented carefully, it would face massive backlash and large-scale resistance from minority communities. The ability of UCC to foster gender equality has also been questioned. The argument that personal laws can be amended one by one to remove discriminatory provisions is weak. The sheer amount of provisions that will have to be amended makes this option infeasible. Each provision, when amended, will spark opposition from community heads of various religions. In such circumstances, UCC would be the most feasible option.

Whether or not the Uniform Civil Code fosters secularism is the next important question that needs to be answered. On the one hand, there is the argument that it treats all religions equally; hence, it aligns with the secular nature. On the other hand, there is the argument that a state is secular when the people of that state have the freedom to practice their religion and observe their own life and the common laws of their own personal codes. Both these arguments are strong. However, secularism is the idea that the state shall have no religion and treat all religions equally.

Every person in India has different civil laws that govern them based on their religion. This may give more rights to a particular section of society than others. Let's take succession as an example. Hindu women and men are entitled to an equal share in the inheritance, while Muslim women are only entitled to half of what men are entitled to. Here it can be noticed that Hindu women have more rights than their Muslim counterparts in cases of succession.

The All-India Muslim Personal Law Board (AIMPLB) on Sunday said the Uniform Civil Code (UCC) is neither suitable nor useful for a vast multi-religious country like India. (PTI, 2021)[15] This argument can reflect the insecurity of one community regarding the UCC. The UCC must foster the interests of each and every religious community equally and should pay heed to the distinct religious practices of every community.

For the northeastern states to accept the code, it is vital that the UCC has special provisions for them to protect their interest and culture. The lives of tribals are far different than the lives of other people in India. Making the UCC more accommodating to their needs is the only thing that is going to make the state legislatures rectify the code. Otherwise, the UCC will remain inapplicable to these regions.

Many have argued that bringing in a UCC will help reduce the legal complexity that comes due to different personal laws. The UCC will help simplify the legal system. by doing away with diverse personal laws and replacing them with a single set of laws applicable to all. Citizen's access to justice could be improved by this simplification, which would remove the need for people to negotiate various legal systems depending on their connection with a particular religion.

Additionally, it has been argued that a UCC will help foster a progressive society with modernist thinking. It will do away with outdated customary practices such as polygamy, Nikah Hala, etc. (Chugh, 2023)

India is a country with almost 97 crore Hindus, 17 crore Muslims, almost three crore Christians, and crores of people who are Sikhs, Jains, Parsis, Buddhists, and others. (Census, 2011). This shows the sheer amount of diversity within our country. There are differences that exist among these people with respect to their religion, culture, and traditions.

As a secular country, India must accommodate these differences, and the uniform law must be tolerant towards the different aspects of each religion and provide special provisions to minorities. The implementation of the UCC must also be approached with caution. The voices of the masses must be taken into consideration while framing the UCC. Over 75 lakh suggestions have been received by the law panel on UCC. This is certainly not a small number, and the government must pay heed to these responses. (Sarda, 2023)[16]

References:

1. The Centre for Law and Policy Research . (n.d.). UCC-Part-1-Constitutional-History. Retrieved September 30, 2023, from CLPR.
2. Deka, K. (2023, August 14). The politics of a Uniform Civil Code. Retrieved from India Today: https://www.indiatoday.in/magazine/cover-story/story/20230814-the-politics-of-a-uniform-civil-code-2415996-2023-08-05
3. Thomas, S. (2010, September 14). Marriage between 1st cousins illegal, says HC. Retrieved from Times of India: https://timesofindia.indiatimes.com/india/marriage-between-1st-cousins-illegal-says-hc/articleshow/6550296.cms
4. Diwan, D. P. (1983). Family Law.
5. THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 ACT NO. 25 OF 1986
6. Rajagopal, K. (2022, April 4). Supreme Court to hear plea challenging gender bias in Hindu inheritance law. Retrieved from The Hindu: https://www.thehindu.com/news/national/supreme-court-to-hear-plea-challenging-gender-bias-in-hindu-inheritance-law/article65289548.ece
7. Nath, R. (2022, March 8). Inheritance rights of Hindu, Muslim, Christian women are not the same. Retrieved from The Economic Times: https://economictimes.indiatimes.com/wealth/legal/will/inheritance-rights-of-hindu-muslim-christian-women-are-not-the-same/articleshow/90067981.cms?from=mdr
8. Chugh, L. (2023, July 11). Uniform Civil Code (UCC): Positive response towards equality and progress. Retrieved from Times of India: https://timesofindia.indiatimes.com/readersblog/mywriteexpress/uniform-civil-code-ucc-positive-response-towards-equality-and-progress-56242/
9. Gupta, R. (2023, April 23). Is it the right time to implement the Uniform Civil Code in India? Retrieved from The Times of India: https://timesofindia.indiatimes.com/blogs/myview/is-it-right-time-to-implement-the-uniform-civil-code-in-india/
10. Salam, Z. U. (2023, August 25). Muslim Law Board's stand sought on nikah halala. Retrieved from The Hindu: https://www.thehindu.com/news/national/law-commission-seeks-muslim-boards-stand-on-halala-and-muta/article67234729.ece
11. Ghosh, A. (2017, November 1). Essential Religious Paradox? The Supreme Court's interpretation of Article 25. Retrieved from Bar and Bench: https://www.barandbench.com/columns/essential-religious-practices
12. Wajihuddin, M. (2023, June 25). Muslims must not fall into BJP trap on uniform civil code is . Retrieved from Times of India: https://timesofindia.indiatimes.com/muslims-must-not-fall-into-bjp-trap-on-uniform-civil-code-issue/articleshow/101252515.cms?from=mdr
13. Prasad, M. (2023, July 5). Uniform Civil Code Won't Affect Northeast, Tribals, Says Minister. Retrieved from NDTV: https://www.ndtv.com/india-news/uniform-civil-code-wont-affect-northeast-tribals-says-minister-4178840
14. Kumar, A. P. (2016, June 18). Uniform Civil Code: A Heedless Quest? Retrieved from Economic and Political Weekly : https://www.epw.in/journal/2016/25/law-and-society/uniform-civil-code.html
15. PTI. (2021, November 21). Uniform Civil Code not suitable for a multi-religious country like India: AIMPLB. Retrieved from Indian Express: https://indianexpress.com/article/india/uniform-civil-code-not-suitable-for-multi-religious-country-like-india-aimplb-7634374/
16. Sarda, K. (2023, July 28). Uniform Civil Code: Law Commission says it received over 75 lakh responses from the public. Retrieved from India Today: https://www.indiatoday.in/law/story/uniform-civil-code-law-commission-received-over-75-lakh-public-feedback-2413073-2023-07-28