Uniform Civil Code: A Constitutional Imperative Amidst Religious Diversity

Uniform Civil Code (UCC) in India

The Uniform Civil Code (UCC) is one of the most talked about issues in India’s socio-political and socio-legal scene, and it balances itself on the thin line between religious freedom, the importance of personal laws, and traditional customs, and a long-standing vision to unify laws and eliminate custom-made inequality and prejudice.

Residing under Part IV Article 44 of the Indian Constitution, the UCC is part of the Directive Principles of State Policy, and the Constitution itself states that the directive principles “shall not be enforceable by any court”^[1], yet it also mentions that they are “fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”^[2], and reiterating what Justice M.C. Chagla said about the application of UCC, Article 44 is a binding provision that obligates the government to implement its directives and that the Constitution was enacted for the whole Country, and all must accept its provisions.^[3]

While there has always been a debate on how the implementation of UCC will lead to the suppression of minorities, reinforcing only the majoritarian law, with the BJP government’s coming to power in 2014, the push for UCC has been much greater. India is constituted into a Sovereign Socialist Secular Democratic Republic, as per the Preamble of the Indian Constitution, and secularity defines India to be a State with multiple religions living in harmony, with no State Religion. The laws governing an individual should stem only from the Constitution and not from religious beliefs.

It was held by Justice Jeevan Reddy that religion is concerned with individual faith and cannot be intertwined with secular activities, making them regulatory under State affairs.^[4] This brings us to secularity being directly in correlation with equality before the law^[5] and the right to practice one’s religion^[6], and practicing one’s religion has a clear distinction and laws governing the relationship between religion and society through institutions like marriage and related affairs like divorce, adoption, and inheritance.

UCC, in its true essence, envisions a single legal framework governing marriage, divorce, inheritance, and adoption for all citizens, irrespective of religion, caste, creed, or gender, and aims for a society that is based on similar lines of legal rights and obligations in regards to personal laws.

Other countries like Turkey and Tunisia have already implemented a uniform personal law system, and there are also countries like the US, UK, and Canada, who, despite not having any uniform system, have accommodated diverse religious practices by upholding the principles of secularism while also respecting cultural and religious diversity.

Religion, culture, and their integration with laws is never a simple, by-the-book issue. Practically, there is no panacea to all of them, yet the least we can strive to is upholding the principles of the Constitution and also maintaining religious and social harmony in a diverse country like India, and the implementation of the Uniform Civil Code may be one of the key ways to achieve such a setting.

Research Questions

• Why was UCC placed under the Directive Principles of State Policy instead of the Fundamental Rights, and how does this debate still continue in the modern political scenario?
• How can the implementation of the Uniform Civil Code, under Article 44 of the Indian Constitution, be reconciled with the right to freedom of religion under Article 25?

Analysis

The debate between the enforcement of the directive principles of state policy and fundamental rights has been an eternal and long-standing concern, and at the forefront lies the issue of the Uniform Civil Code and its application in the State of India.

This discussion on the enforcement of the UCC goes back to the constituent assembly when our Constitution was being drafted, and the amusing, or rather the interesting part is that the arguments for and against its application in the state have remained the same. This brings forward a fundamental concern that we have not progressed in the last seven decades since our independence and still lie there.

Through this essay, let us trace back to when our Constitution was being drafted and the rationale behind the makers and join the dots to see how all these decades have led to the modern upheaval of putting forward the bill to implement the UCC in the parliament. The Uniform Civil Code, as we all know and also mentioned earlier, is placed under the Directive Principles of State Policy in our Constitution, which by law is not enforceable in any court, but getting placed under the DPSP and not the fundamental rights has been a point of contention since a long time.

First, briefly understanding the distinction between DPSP and fundamental rights, the DPSP guides the State toward the collective welfare of the society. In contrast, fundamental rights protect individual rights, and the Supreme Court, in multiple instances like the Keshavananda Bharati and the Minerva Mills case, has talked about the fine balance between DPSPs and fundamental rights in the way that they must complement each other without imposing one on the other.

When talking about society, and in particular, Indian society, the institution of marriage, the issues of divorce, inheritance, and adoption are fundamental and affect the society at large, and placing a provision like UCC that unifies all citizens under the same blanket law under the DPSP is not a step ahead but a step behind.

There have been instances where subjects originally under the DPSP have been brought under the scope of Fundamental Rights and included in them, like the Right to Education and the Right to Livelihood, which have evolved through judgements in the Mohini Jain v. State of Karnataka (1992), Unnikrishnan v. State of Andhra Pradesh (1993), and Olga Tellis v. Bombay Municipal Corporation (1985), respectively.

Setting them as a precedent, there must be an active resolution to implement the UCC, with legal stalwarts like former Chief Justice of India, Justice Gajendragadkar, who observed that “in any event, the non implementation of the provision contained in Art 44 amounts to a grave failure of Indian democracy and the sooner we take suitable action in that behalf, the better”, and “in the process of evolving a new secular social order, a common civil code is a must”.

UCC, for the first time, was raised in the Constituent Assembly on 23rd November 1948 by Congress leader Meenu Masani, which led to a widespread debate about the implementation and application of UCC in the Indian State. The arguments made in the both for and against were made by a very clear section of people, and the rationale behind these is what we would analyse in this essay.

Support for UCC in the Constituent Assembly

At the forefront in support of UCC stood Dr. Ambedkar, KM Munshi, and Sir Alladi Krishnaswamy. Ambedkar argued that despite religion being sacred to citizens, the legislature did interfere with laws governing religions, and in fact, the Muslims in the United Provinces, the Central Provinces, and Bombay were governed by Hindu Law on matters of succession until the passing of the Muslim Personal Law (Shariat) Application Act, 1937^[14]. Similarly, in North Malabar, the Marumakkathayam Law was applicable to both Hindus and Muslims.^[15]

Munshi argued that there was no violation of the Freedom of Religion since Article 25 confers the State the power to make laws regulating the secular activities associated with religious practices, hence the parliament has the power to legislate so long as it falls within these exceptions. Munshi and Ambedkar were also of the opinion that certain laws or their portions cannot be a concern and affect the sentiments of any other community, even if they are the most suitable ones, just because they belong to some other community.

Munshi also called for ‘divorcing religion from personal law’^[16], and along with Ayyar, he also pointed out that the citizens must trust the democratic state and that these laws are not tyrannical. Drawing reference from Europe and countries like Egypt and Turkey, the Civil Code in place is for everyone and is not considered tyrannical to minorities.

Opposition to UCC

The arguments opposing the provision of UCC were threefold:

• Firstly, religion being sacred cannot be interfered with.
• Secondly, the provision is a violation of the Right to Religion.
• Finally, it is tyrannical to minorities.

Mohd. Ismail Khan put forward these arguments along with Mahboob Ali Baig. Naziruddin Ahmed was of the view that such an interference was necessary, but it must not be sudden, and the stage is not set yet. Taking into consideration the large number of communities in a secular country like India, uniformity was necessary but could not be brought by ‘one stroke of the pen’^[17], and such a move would trample the religious rights and practices.

Other members of the constituent assembly, like KT Shah, Frank Anthony, and T Prakasam, were also against the imposition of UCC, expressing their concern about the violation of the Freedom of Religion and suppression of the rights of minorities.^[18]

Context and Constitutional Vision

Taking into account these arguments and interpretations of the members of the constituent assembly and reiterating what Prime Minister Nehru said in the Parliament while introducing the Hindu Code Bill instead of a Uniform Civil Code in 1954:

“I do not think that at the present moment, the time is ripe in India for me to try to push it through.”^[19]

Even after seven decades, the time does not seem to have ripened to the extent that the people realise the need for a uniform system of personal laws. The vision behind UCC, which people have always misinterpreted as the suppression of religion and going against the said norms of the divine, is actually aimed at exterminating laws that are discriminatory in nature, those which differentiate between genders and create unnecessary divisions in society.

Primarily, the goal is to refine our attitude, which the British and British Courts have fostered by stating personal law as a part of religion. This misconception is what we need to outgrow and separate ourselves from, maintaining a sharp difference between religious faith, practices, and traditions stemming from religion and personal laws dealing with inheritance, divorce, and marriage, which cannot be placed directly under the ambit of religion and have a societal and legal identity.

These socio-legal issues must be uniform for all citizens, and a uniform civil code is considered to be the most essential step towards the secular identity of the state^[20], since the plurality of laws is a direct threat to the integrity of the nation-state.

Role of Judiciary and ERP Doctrine

Religious practices need reform from time to time, and the legislature and, as and when required, the judiciary must intervene to bring these changes while preserving the identity of religion. Essential Religious Practices (ERP), which the Indian Supreme Court has evolved, can be a striking reference point for implementing UCC in India, thereby maintaining a balance between secularity and religious faith.

The ERP doctrine, which in essence draws a line between matters of religion and those which are not, has gone through multiple developments in cases like:

• Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt^[21]
• Durgah Committee Ajmer v. Syed Hussain Ali^[22]

In these cases, the court held that only practices regarded as essential and integral to a religion are protected under Articles 25 and 26, and purely secular practices, even if associated with religion, are not protected. This brings us to the three-pronged test^[23] established to determine the state’s regulatory ambit over religious matters:

1. Is the practice religious in nature?
2. If yes, is it integral or essential to the religion?
3. Is there any substantial evidence to prove the same?

Judicial Approach to Personal Laws

Courts in India opined that personal laws themselves are not subject to the scrutiny of fundamental rights^[24] and that personal rights are outside the purview of Part III of the Constitution. Personal laws could not be modified by judicial interpretation or modern concepts unless they had been changed by statute or custom.^[25]

With time, there has been a key shift in this view with the Triple Talaq^[26] and Sabarimala^[27] judgements, where the Supreme Court took a more direct approach and a bolder stance by stating that customs, usages, and personal laws significantly affect individuals’ civil status and thereby cannot be made immune under the garb of freedom of religion. Doing so would undermine the status of the Constitution.^[28]

Way Forward

This brings us back to implementing the Uniform Civil Code, which needs a nuanced and phased approach:

1. A clear distinction must be made between essential and non-essential religious practices to avoid conflict between Articles 25 and 44 of the Indian Constitution.
2. The public must be enlightened with the true vision of what UCC holds. Misconceptions such as the curtailment of religion, elimination of cultural practices, and imposition of majoritarian law must be dispelled.
3. The UCC must strive to be a utopian law that includes fundamental matters uniform for all. Sub-laws concerning essential religious practices must be respected and be free from discrimination, upholding the constitutional principles of equality and the ‘Golden Triangle’ of Articles 14, 19, and 21.

Conclusion
Thus, the Uniform Civil Code is controversial yet one of primary and fundamental importance in the Indian legal horizon, finely balancing religious freedom with constitutional values of equality and secularism. The UCC envisions uniform, personal laws in India, yet its implementation must strictly conform to religious practices and caste-based social observations while strictly sticking to constitutional values.

This debate relates as far back as the Constituent Assembly when concerns about the rights of minorities and interference with religion have remained as it is. However, judicial interpretations in Triple Talaq and Sabarimala reveal a shift towards more inclusive legal systems. Thus, implementing the UCC would require careful delineation between essential religious practices and secular activities, public awareness, and a phased, inclusive approach to ensure societal harmony while fostering constitutional ideals of equality and justice.

Sources and References:

1. Article 37, The Indian Constitution
2. Ibid
3. Chagla, M.C. Plea for Uniform Civil Code, Weekly Round Table, March 25, 1973, p. 7.
4. S.R. Bommai v. Union of India (1994) 3 SCC 1
5. Article 14, The Indian Constitution
6. Article 25, The Indian Constitution
7. Kesavananda Bharati Sripadagalvaru … vs State Of Kerala And Anr AIR 1973 SUPREME COURT 1461, 1973 4 SCC 225
8. Minerva Mills Ltd. & Ors vs Union Of India & Ors 1980 AIR 1789, 1981 SCR (1) 206
9. Unni Krishnan, J.P. And Ors. Etc. Etc vs State Of Andhra Pradesh And Ors. Etc. Etc on 4 February, 1993
10. Miss Mohini Jain vs State Of Karnataka And Ors on 30 July, 1992
11. Olga Tellis & Ors vs Bombay Municipal Corporation & Ors. Etc on 10 July, 1985
12. Gajendragadkar, Secularism and the Constitution of India 126 (1971)
13. D.C. Manooja, Uniform Civil Code: A Suggestion: Vol. 42, No. 2/4, Constitutional Law Special Issue (April-December 2000) http://www-jstor.org.nujs.remotlog.com/stable/43953824?
14. INDIA TODAY, What framers of our Constitution said about UCC and why they didn’t implement it — https://www.indiatoday.in/nation/story/uniform-civil-code-what-farmers-of-our-constitution-said-about-ucc-constituent-assembly-debates-2402758-2023-07-07
15. India’s Constitution Origins and Evolution, Vol.2, Lexis Nexis, 2015, P.257 Constituent Assembly Debates, Vol.VII, pp.538, 540-552.
16. THE BASIC STRUCTURE, Religion, Reform and Khilji: Uniform Civil Code and the Constituent Assembly — https://thebasicstructureconlaw.wordpress.com/2022/12/13/religion-reform-british-and-khilji-uniform-civil-code-and-the-constituent-assembly/
17. Ibid
18. Ibid
19. Supra Footnote 13
20. Smt. Sarla Mudgal, President, Kalyani & … vs Union Of India & Ors on 10 May, 1995
21. K.M. Munshi and Alladi Krishnaswamy Iyer, Constituent Assembly Debates, Vol. VII (Nov. 23, 1948)
22. AIR 1954 SC 282
23. AIR 1961 SC 1402
24. Tikayat Shri Govindlalji Maharaj v. State of Rajasthan AIR 1963 SC 1638
25. The State Of Bombay vs Narasu Appa Mali on 24 July, 1951 AIR 1952 Bom 84
26. Sri Krishna Singh vs Mathura Ahir And Ors. on 7 September, 1981 (1981) 4 SCC 421
27. Shayara Bano v. Union of India is AIR 2017 9 SCC 1 (SC)
28. Indian Young Lawyers’ Association v. State of Kerala (2019) 11 SCC 1
29. Ibid