The Uniform Civil Code debate

(Mains GS - 2 : Government policies and interventions for development in various sectors and issues arising out of their design and implementation.)

Context:

• Recently, the Law Commission of India decided to solicit views and proposals from the public about the Uniform Civil Code (UCC).

Constitutional provision:

• Article 44 contained in part IV of the Constitution says that the state “shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”.
• Part IV of the Constitution outlines the Directive Principles of State Policy, which, while not enforceable or justiciable in a court of law, are fundamental to the country’s governance.
• While there is no draft or model document yet for the UCC, the framers of the Constitution envisioned that it would be a uniform set of laws that would replace the distinct personal laws of each religion with regard to matters like marriage, divorce, adoption, and inheritance.

Constituent Assembly:

• The clause on UCC generated substantial debate in the Constituent Assembly about whether it should be included as a fundamental right or a directive principle.
• The matter had to be settled by vote; with a majority of 5:4, wherein the sub-committee on fundamental rights headed by Sardar Vallabhbhai Patel decided that securing a UCC was not within the scope of fundamental rights.

View of founding fathers:

• Members of the Assembly took starkly contrasting stances on the UCC as some also felt that India was too diverse a country for the UCC.
• Member Naziruddin Ahmad argued that certain civil laws in all communities were “inseparably connected with religious beliefs and practices”.
• While he was not against the idea of a uniform civil law, he argued that the time for that had not yet come, adding that the process had to be gradual and not without the consent of the concerned communities.
• Member K.M. Munshi however, rejected the notion that a UCC would be against the freedom of religion as the Constitution allowed the government to make laws covering secular activities related to religious practices if they were intended for social reform.
• He advocated for the UCC, stating benefits such as promoting the unity of the nation and equality for women. He said that if personal laws of inheritance, succession and so on were seen as a part of religion, then many discriminatory practices of the Hindu personal law against women could not be eliminated.
• Dr. B.R. Ambedkar had more of an ambivalent stance toward the UCC. He felt that while desirable, the UCC should remain “purely voluntary” in the initial stages.
• He stated that the Article “merely” proposed that the state shall endeavour to secure a UCC, which means it would not impose it on all citizens.

Supreme Court on UCC:

• The Supreme Court in various judgments has called for the implementation of the UCC.
• In its Mohd. Ahmed Khan vs Shah Bano Begum judgement of 1985, where a divorced Muslim woman demanded maintenance from her former husband, the apex court while deciding whether to give prevalence to the CrPc or the Muslim personal law, called for the implementation of the UCC.
• The Court also called on the government to implement the UCC in the 1995 Sarla Mudgal judgement as well as in the Paulo Coutinho vs Maria Luiza Valentina Pereira case (2019).

Reform familial relations:

• The question of personal laws is basically the question of personal and religious autonomy versus the state’s authority to reform familial relations.
• Since each religious group has cultural autonomy, it is thus being argued that the community should itself come forward to seek reforms.
• This is the justification for the adoption of internal law reform or voluntary UCC.
• At present, not just Muslims but even Hindus, Jains, Buddhists, Sikhs, Parsis, and Jews are governed by their own personal laws.

Previous observation:

• The 21st Commission had released a consultation paper in 2018 that categorically said a uniform civil code was “neither necessary nor desirable” at that stage.
• It had then argued that the focus of initiatives to reform the various personal laws should be the elimination of all forms of discrimination rather than an attempt to bring about uniformity in the laws governing various religions.
• The document was progressive in nature as it emphasised non-discrimination over uniformity, and recognised that there could be diverse means of governing aspects of personal law such as marriage, divorce, inheritance and adoption instead of imposing a single set of rules on society.
• This would entail the removal of discriminatory provisions, especially those that affect women, and adoption of some overarching norms rooted in equality.

A just code required:

• Accordingly, the 21st Law Commission (2015-18) had boldly favoured equality between men and women in communities rather than aiming for equality between communities. 
• A just code should be the primary goal as just laws are more important than a mere one uniform law.
• India’s tryst with preserving its multicultural diversity is often found at the crossroads with values such as secularism.
• Despite secularism being a fundamental tenet governing the Indian polity, India decided not to adopt the French model of laïcité, which strictly prohibits bearing any religious outfit or marker in public that considers religion in public as a threat (and not a prominent promoter) to the nation’s secular fabric.
• Indian society, therefore, ‘accommodates’ and not just ‘tolerates’ the wide array of group and ethnic differences.

Measure to take:

• It is possible that a uniform code may be adopted without offending any religion, but the concept evokes fear among sections of the minorities that their religious beliefs, seen as the source of their personal laws, may be undermined.
• Basic reforms can be given priority such as having 18 as the marriageable age for all across communities and genders.
• Introducing a ‘no-fault’ divorce procedure and allowing dissolution of marriage on the ground of irretrievable breakdown, and having common norms for post-divorce division of assets were other matters the previous Commission threw up for a debate.
• Within each community’s laws, it will be desirable to first incorporate universal principles of equality and non-discrimination and eliminate practices based on taboos and stereotypes.

Conclusion:

• Experts suggest that the Commission must bear in its recommendation that for a diverse and multicultural polity such as India, the proposed UCC must be emblematic of India’s ‘mosaic model’ of multiculturalism.