Article 44 of the Indian Constitution underscores the State's responsibility
to establish a Uniform Civil Code (UCC) for the citizens of India. While this
provision falls under the category of Directive Principles of State Policy (DPSP),
recent developments have prompted the State to consider the implementation of a
UCC or similar legislation as a binding legal framework.
The establishment of a uniform standard is envisioned to ensure equitable
treatment for individuals in various aspects such as marriage, divorce,
inheritance, adoption, and more. Nevertheless, it is essential to approach the
implementation of a uniform standard in India with in the socio-political
context to effectively address any potential challenges that may arise. In this
paper an attempted would be made to looked at pros and cons of uniform civil
code in the 21st century
Need For Uniform Civil Code
India, being a diverse country has accommodated various religions by recognizing
and applying their respective personal laws. This includes the Hindu Code for
Hindus and Jains, the Shariat Law for Muslims, and the Parsi Law for Parsis,
among others. These legal systems are predominantly rooted in the religious
principles and values of each respective community, leading to distinctive
treatment, both within and outside the religion.
While such laws were historically accepted. However, the ever-evolving
jurisprudence around these laws and social and cultural dynamics has questioned
it and said whether such laws are relevant in the contemporary framework too.
The Approach Of The Judiciary In Interpreting Personal Law
The conflict between personal laws and fundamental rights arises from the
diversity of personal laws governing different religious and cultural
communities, which often clash with the fundamental rights enshrined in the
Constitution. Over the years, two distinct approaches have emerged in the Indian
judiciary to address this issue - the "Non-Interventionist Approach" and the
The Non-Interventionist Approach gained prominence through the landmark case of
State of Bombay v Narasu Appa Mali. In this case, the Bombay High Court adopted
a stance of non-interference with personal laws, asserting that these laws do
not qualify as 'laws in force' under Article 13(3)(b) of the Indian
The court argued that personal laws were enacted before the
Constitution came into effect and, therefore, could not be challenged. This
approach was further evident in cases like Ahmedabad Women Action Group v. Union
of India and P.E. Mathew v. Union of India
. These judgments revealed a
reluctance to resolve the conflict between personal laws and fundamental rights
due to the sensitive nature of the issues involved.
One significant consequence of this approach was the emergence of conflicting
opinions between different courts. For example, while Narasu Appa Mali held that
personal laws could not be challenged, the case of Madhu Kishwar v. State of
ruled that customs could be challenged if they conflicted with fundamental
rights. This discrepancy highlighted the need for a more coherent and principled
The Scrutinizing Approach
The Scrutinizing Approach emerged as a response to the shortcomings of the
Non-Interventionist Approach. Courts began to recognize the inconsistencies in
the judgment of Narasu Appa Mali and sought to bring personal laws in line with
fundamental rights using legal using settled principles like doctrines of
Eclipse, Severability, and purposeful Interpretation of Statutes.
A notable instance of the Scrutinizing Approach in action is seen in the Indian
Young Lawyers' Association v. State of Kerala, often referred to as the 'Sabarimala
Case' In this case, a nine-judge bench, led by Justice D.Y. Chandrachud, tested
the custom of 'non-entry of women' into the Sabarimala Temple against
fundamental rights and found it unconstitutional. This judgment effectively
discredited the non-interventionist stance of Narasu Appa Mali.
While this Approach has provided a more flexible and rights-oriented framework
for addressing conflicts between personal laws and fundamental rights, there
remains a need for a comprehensive and standardized method for governing the
diverse religious and cultural communities in India. This should balance the
rights of individuals with the preservation of cultural and religious practices.
Striking this delicate balance while upholding the principles of justice and
equality remains an ongoing challenge for the Indian legal system.
Potential Challenges Arising From A Uniform Civil Code
While the establishment and enforcement of a standardized governance framework
are of paramount importance, there are two potential challenges that must be
considered. While proponents of a Uniform Civil Code see it as a remedy for the
religious conflicts that persist in the country, it is not guaranteed that its
implementation would completely resolve cases of religious and fundamental
These challenges can be categorized into two main areas, as outlined below:
- Conflict with Article 25
One of the key initial concerns that arises regarding the implementation of the
Uniform Civil Code (UCC) pertains to Article 25, which guarantees citizens the
freedom to profess, practice, and propagate their respective religions. Since
personal laws have their origins in religious principles, imposing a uniform
standard could be seen as a violation of individuals' religious rights.
However, proponents of the UCC argue that there is a notable exception to this
concern within Article 25, which pertains to 'public order, morality, and
health.' This implies that the freedom to practice one's religion is subject to
the criteria mentioned above and other principles outlined in this part of the
law. This debate remains unresolved, as the interpretation of this exception
varies across different perspectives.
Ironically, the implementation of the UCC, meant to address religious conflicts,
may inadvertently give rise to even more conflicts, which is contrary to one of
its primary motivations.
- The Issue with Implementation
The implementation of the Uniform Civil Code (UCC) in India has been a
contentious issue, sparking debates and disagreements among various communities
and political groups. The UCC aims to replace diverse personal laws governing
different religious communities in India with a common set of laws governing
matters such as marriage, divorce, inheritance, and adoption. While proponents
argue that a uniform code would promote gender equality, social justice, and
national integration, opponents fear that it might infringe upon the religious
and cultural rights of different communities.
The complexity of India's diverse cultural and religious landscape has made it
challenging to find a balanced approach that respects individual freedoms while
promoting uniformity in laws. Political considerations, historical
sensitivities, and deep-rooted social norms further complicate the
implementation process. Striking a balance between the need for a unified legal
framework and respecting the cultural and religious diversity of the country
remains a significant challenge in the ongoing discourse surrounding the
implementation of the UCC in India.
The fundamental essence of a Uniform Civil Code (UCC) lies in establishing a
standardized framework for governance. While there have been reservations about
implementing a UCC nationwide, and for valid reasons, it might be necessary to
explore alternative measures.
For instance, as we analyze the evolution of our society's social structure, it
becomes evident that we have transitioned from a conservative to a progressive
society. This transformation has been driven by shifts in judicial decisions,
discussions, deliberations, and the acceptance of these changes by legislative
bodies, along with various amendments.
Considering this and addressing the ongoing conflict between personal laws and
fundamental rights, one can anticipate further transformation if the judiciary
and legislative bodies give this matter more comprehensive attention through the
To bridge the gap between these two aspects, it is crucial to rectify the
inconsistencies within various personal laws, aligning them with fundamental
rights. This can serve as a middle ground and a viable alternative to the issues
at hand, while also ensuring compliance with Article 25 of the Constitution.
By strengthening the existing mechanisms and governing bodies, we can overcome
the challenges associated with the implementation and execution of a UCC without
forgoing the prospect of significant societal change.
The implementation of a UCC in India should be a gradual, inclusive, and
well-thought-out process that respects the diversity and cultural richness of
the nation while upholding the principles of justice, equality, and secularism
enshrined in the Indian Constitution. It is imperative to address concerns and
involve all stakeholders to make this transition as smooth as possible.
The debate surrounding the Uniform Civil Code remains a complex and contentious
issue, with valid arguments on both sides. On one hand, proponents argue that a
uniform civil code can help bridge the divides in a diverse and multicultural
society, ensuring equal rights and justice for all citizens, regardless of their
religious or cultural background. This approach emphasizes the importance of
gender equality, individual rights, and the principles of a secular state.
On the other hand, opponents argue that imposing a single, uniform code may
deepen the differences and exacerbate social and cultural tensions. They
highlight the need to respect and preserve the diversity of traditions, customs,
and personal beliefs in a pluralistic society. Striking a balance between these
competing interests is a complex challenge, and the way forward requires careful
consideration and open dialogue.
In the end, the path toward a Uniform Civil Code should prioritize principles of
justice, individual freedoms, and gender equality, while also respecting the
cultural and religious diversity that enriches our society. Achieving this
balance will require thorough deliberation, consultation with all stakeholders,
and a commitment to upholding the core values of a democratic and inclusive
nation. The ultimate goal should be to foster unity without erasing the
beautiful tapestry of differences that makes our society unique.
Award Winning Article Is Written By: Mr.Rohit Gome, 3rd Year Student, National Law Institute University, Bhopal (NLIU)
Email ID: [email protected]
Authentication No: NV330824505311-4-1123