Part IV, Article 44 of the Constitution (State shall endeavor to secure for the citizen for the citizens a uniform civil code throughout the territory of India), one of the Directive Principles of State Policy, states that the State must seek to ensure for people a uniform civil code across India’s territory. However, as Article 37 states (The Directive Principles of State Policy (DPSP) are not enforceable by any court), directive principles are guiding principles for government policies and are not enforceable by courts.
Constitution Assembly Debate on UCC
The constitution assembly witnessed a lengthy discussion in a common civil code adopting it as a directive principle. When the said article was being discussed on November 23, 1948, several Muslim members suggested adopting a common civil code with the caveat that it would apply to citizens with prior consent. However, B.R. Ambedkar strongly opposed to the amendments.
Mohamad Ismail, a member from Madras, proposed a proviso be added to it, stating that “the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determined by law.” Ismail also said that a community’s right to follow its personal law was a fundamental one and any tinkering with it would be “tantamount to interference with the way of life of those people who have been observing these laws for generations.”
Afte this, Naziruddin Ahmad from West Bengal said it was not just Muslims who would be inconveniencied by the UCC, as each religious community has its own religious beliefs and practices. Adding to this, Madras-based B pocker sahib Bahadur said, “By uniform, I ask, what do mean, and which particular law, of which community are you going to take as standard?” Making a reference to the differing Mitakshara and Dayabhaga systems within the Hindu Law, he said, ” there are so many other systems followed by various other communities. What is it that you are making the basis?”
Similarly lawyer and educator KM Munshi, who founded Bhartiya Vidya Bhava, said that Hindus themselves have their separate law and aske, ” are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country ? it is therefore not just a question for minorities but also affect the majority.”
Finally, Ambedkar, the then chairman of the drafting committee, pointed out that barring the North-West Frontier Provinces, Muslims in different parts of India like Bombay and the United Provinces were governed by Hindu Law in matters of succession until 1937. However, he assured that the UCC would not be enforced upon the people as Article 44 “merely proposes that the state shall endeavor to secure a civil code”. Ambedkar also underlined the possibility that a future parliament could make provisions for applying the UCC in a “purely voluntary manner.
Law commission Of India UCC
In 2016, a reference was sent by the Ministry of Law and Justice to the Law Commission for examining all matters relating to the UCC ‘s implementation. First came the 21st Law Commission of India, which, after taking in the views of various stakeholders, issued a consultation paper instead of a final report on the issue. The paper titled “Reform of family law”, published on August 31, 2018, argued for reforming family laws across religions through amendments and codification to limit ” ambiguity in interpretation” and application. Citing Sati, devadasi, Triple talaq, and child marriage as examples of ‘social evil’ under the grab of religious customs, the commission observed that these “practices do not conform with basic tenets of human rights and not are they essential to religion “. Relying on the constitution’s six schedules, which provide certain protection to some states, the paper said that while framing laws, it must be remembered that ” cultural diversity can not be compromised to the extent that our urge for uniformity itself becomes the reason for threat to the territorial integrity of the nation”.
Since over three years have elapsed since the paper’s publication, the 22nd law commission considered it “expedient to deliberate afresh over the subject “, in light of its importance, relevance, and also various court orders on the subject. However, even before UCC was taken up by the commissions, it was extensively deliberated by the judiciary, from as far back as 1952. The Law Commission, which was headed by former Supreme Court judge BS Chauhan, observed: “Cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation”. While agreeing that various aspects of prevailing personal laws disprivilege women, the Commission, however, said that “it is discrimination and not difference which lies at the root of inequality”. It should be noted that the suggestions of Law Commissions are not binding on the government but act as a reference for further decisions.
Supreme Court on Uniform Civil Code
In several rulings, SC has supported the introduction of UCC. notable among the rulings is the landmark 1985 Shah Bano ruling in which the Supreme Court upheld the right of Muslim women to seek alimony. The judgment set off a political battle as well as a controversy about the extent to which courts can interfere in Muslim personal law and the decision was undone by parliament. “A common civil code will help the cause of national integration by removing disparate loyalties to the law which have conflicting ideologies,” the court had said. In Sarla Mudgal v Union of India (1995), the Supreme Court while prohibiting conversion to Islam to benefit from laws that allow polygamy said that the need for UCC “can hardly be doubted”. However, it added that this can happen only when the social climate is “properly build up by the elite of the society” and ” statement amongst leaders who instead of gaining personal mileage raise above and awaken the masses to accept the change “. In October 2022, the center responding to a plea before the top court for uniformity in laws of divorce, succession, inheritance, adoption, and guardianship, said the constitution obliged the state to have a UCC for its citizens and the matter would be placed before the 22nd law commission.
Need Of Uniform Civil Code in India
Some examples are, As there are different personal laws acting based on religion, some are discussed below :-
The rights of women regarding inheritance differ based on their religion in India. Under the Hindu Succession Act of 1956, (which governs the rights of Hindus, Buddhists, Jains, and Sikhs) Hindu women have equal rights to inherit property from their parents and have the same entitlement as Hindu men. The rights of married and unmarried daughters are equal, and women are recognized as joint legal heirs for ancestral property partition.
Muslim women, governed by the Muslim Personal Law, are entitled to a share of their husband’s property, which is either 1/8th or 1/4th, depending on the presence of children. However, daughters’ share is half of that of sons. For Christians, Parsis, and Jews, the Indian Succession Act of 1925 applies. Christian women receive a predetermined share based on the presence of children or other relatives. Parsi widows receive an equal share as their children, with half of the child’s share going to the deceased’s parents if they are alive.
Supporting argument on UCC
(i)Dr Babasaheb Ambedkar, chairman of the Drafting Committee of the Indian Constitution, was of the view that a UCC is desirable but following significant division in the constituent assembly he proposed it to remain voluntary for the moment.
“It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary […] so that the fear which my friends have expressed here will be altogether nullified,” Ambedkar said in Constituent Assembly.
Thus later the constituent assembly agreed on putting the clause as a directive principle (DPSP) rather than a fundamental right.
(ii) Over the following years, various interventions by the legislature, judiciary, and civil society organizations have aimed to amend personal laws or establish a uniform civil code. Notable judgments contributing to this discourse include Mohd. Ahmed Khan v. Shah Bano Begum, Jordan Diengdeh v. S.S. Chopra, and Sarla Mudgal v. Union of India.
In the Shah Bano case, the court observed that Article 44 has remained a “dead letter” and added that a common Civil Code will help the “cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. It said that the legislature is entrusted with the duty of securing a uniform civil code for the citizens of the country. “A beginning has to be made if the Constitution is to have any meaning.”
(iii) In the Sarla Mudgal Case in 1995, the Supreme Court requested the prime minister to re-examine Article 44, aiming to establish a UCC throughout India.
However, subsequent orders in the Ahmedabad Women Action Group Case (1997) and the Lily Thomas Case (2000) clarified that the court did not direct the government to enact a UCC in the Sarla Mudgal case.
Against debate on UCC
Constitution assembly witnessed a lengthy discussion on UCC while adopting it is as as a directive principle…
When the said Article was being discussed on Nov 23, 1948, saverala Muslim members suggested adopting a common civil code with a caveat that it would apply to citizens with prior cnnsent
(i)The 21st Law Commission brought up a consultation paper on “Reform of Family Law” in August 2018 in which it said that UCC was “neither necessary nor desirable at this stage”. It, however, recommended that existing family laws across religions are modified and codified to tackle discrimination and inequality in personal laws, eg. The Hindu marriage act.
IV) It added that efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights.
News so far
With regard to the reference dated 17th June 2016, sent by the Ministry of Law & Justice, the 22nd Law Commission of India is examining the subject matter of the Uniform Civil Code.
Initially, the 21st Law Commission of India had examined the subject of the Uniform Civil Code and solicited the views of all the stakeholders through its appeal along with a questionnaire dated 07.10.2016 and further public appeals/notices dated 19.03.2018, 27.03.2018, and 10.4.2018. Pursuant to the same, overwhelming responses have been received by the Commission. The 21st Law Commission issued the consultation paper on “Reforms of Family Law” on 31.08.2018. Since more than three years have lapsed from the date of issuance of the said Consultation Paper, bearing in mind the relevance and importance of the subject and also the various Court orders on the subject, the 22nd Law Commission of India considered it expedient to deliberate afresh over the subject.
Accordingly, the 22nd Law Commission of India decided again to solicit the views and ideas of the public at large and recognized religious organizations about the Uniform Civil Code.
While the Law Commission of India set the ball rolling towards preparing a draft Uniform Civil Code, it may not be a common code for all, rather it could be a uniform application of a set of principles to various personal Laws.
On June 14, 2023, the 22nd Law commission headed by former Karnataka High Court Chief Justice Ritu Raj Awasthi invited public views on UCC. So far, Commission has received over 20 lakh responses through email, and these continue to pour in. Over the next few months, the commission is likely to being nation-wide-public consultations and shared a detailed questionnaire with citizens on the Issue.
Conclusion
UCC is a serious step to codify all diverse laws on the same matter, based on their religion, codified in a single law, which takes away the inequalities among them that govern by diverse laws.
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