Uniform Civil Code: Challenges in Drafting and Implementation

Introduction

The Uniform Civil Code is a Directive Principle of State Policy under Article 44 of the Indian Constitution.¹  Personal laws in India, governing marriage, family, adoption and inheritance are not uniform in India, unlike other laws, and are specific to the religion and are formed based on age old customs and traditions. The Uniform Civil Code will bring all citizens under a common umbrella of personal law and any differences that exist in these laws across different religions would cease to exist. There are two sides of this coin: One that bringing such uniformity would diminish cultural and religious identity and autonomy, while the other side is that such uniformity would bring about equality and would be a progressive step addressing discrimination towards social groups based on gender or caste within the personal laws. 

Through a public notice dated 14.06.2023, the Law Commission of India sought views of the public on the Uniform Civil Code.² While the views were sought, the general public had several apprehensions, biases and divided opinions about the code: that it would undermine the laws of a specific religion or that it would actually solve problems that exist in the personal laws making them regressive. This highlights the inherent complexity in the understanding of this idea, not only about its purpose, but also its feasibility, necessity and impact. 

India is well known by the phrase “Unity in Diversity”. The country is one of the most culturally diverse in the world with about 179 languages and 544 dialects,³ more than 6 religions,⁴ 533 tribes⁵ with their distinct traditions, and several distinct regional cultures and their own history and heritage. Does unity arise only in the presence of uniformity or is recognition of diversity the pathway to a more open and perhaps more “democratic” form of governance and polity? 

A similar question was posed in 1956 when state reorganisation was done on linguistic lines.⁶Would dividing the states on linguistic lines create further rifts between them? The result was the contrary. With all the languages (in the form of different states) getting their own representation, space and platform, the environment became more linguistically democratic. Is the same applicable to personal laws? Should the same rationale be applied and the Uniform Civil Code not be enacted? What could have been the constitutional intent behind putting Uniform Civil Code under the Directive Principle of State Policy? – There can be two ways to think about this decision of the constitution builders: (i) It was not feasible to be enacted as a mandatory constitutional provision in the country, which is why it exists in the DPSP. OR: (ii) It was not feasible at that time, but the intent to bring about UCC in the future was present, otherwise UCC would not have had an article devoted to it in the Constitution of India. It is not merely a sentence put in the constitution to defer it to a future that will never arrive. It is in fact, a provision that the constitution builders left to the people of India and the successive representatives of the people to decide, and enact it, when the country was ready for it.

The next question is: Are we, as a country, ready for UCC? Are we ever going to be ready? Is now the right time to bring about uniformity in personal laws? 

Historical Background

During British rule, the laws of crime, contract and evidence were uniform, but the British left the personal laws untouched, with their interpretation to be based on religious customs and traditions. Governor General of India, Warren Hastings in 1772⁷declared that personal laws of Muslims would be governed under the Quran while those of the Hindus would be governed by the Shastras. The Cornwallis Code of 1793 appointed law officers (Pandits and Mullahs) to advise the court on personal laws.⁸ Even when the First Law Commission under Lord Macaulay was formulating the Indian Penal Code, the personal laws were left untouched. The Queen’s Proclamation of 1858⁹ also declared that the Crown would not interfere in the religious matters of the country. It was only after tremendous pressure from the leaders that laws such as the Abolition of Sati and the Age of Consent were brought into force. 

The question of Uniform Civil Code has existed since India gained independence. The article on Uniform Civil code was earlier Draft Article 35 at the time of Constitutional Assembly Debates, but was eventually limited to the Directive Principle of State Policy. During the drafting of the Indian Constitution, leaders like Pt. Jawahar Lal Nehru and Dr. B.R. Ambedkar strongly pushed for UCC, but had to limit it to DPSP due to strong opposition from the religious leaders.¹⁰ Ambedkar’s position on the Uniform Civil Code suggested that it should be voluntary in nature in the initial stage with its applicability to only those who agree to voluntarily be bound by it.¹¹Nehru attempted to bring about the Hindu Code Bill which sought to modernise Hindu laws but was unsuccessful due to strong opposition to the bill. Due to the strong opposition, few statutes were passed instead of the Hindu Code which were less in their “modernizing intensity” than the bill. However, they still secularized and brought about much needed reforms in the Hindu law. There have been several case laws discussing Uniform Civil Code along with deliberations by the 21^st and 22^nd Law Commission of India and a consultation paper on reforms in family law which was released in 2018¹². The issue has also come to the forefront as the next project of the BJP led government¹³ . 

Judicial Trend

The discourse on UCC by the courts is listed as below:

• The State of Bombay v. Narasu Appa Mali (1951)¹⁴

The case at the Bombay court addressed the validity of the Bombay Prevention of Hindu Bigamous Marriages Act of 1946. The Sessions Judge of South Satara acquitted the accused in appeal No. 331 of 1951, and ruled that the Act was invalid. In this instance, Justice Gajendragadkar determined that the term “custom or usage” does not qualify as “laws in force” in Article 13(1). The Judge’s opinion was that the practice of untouchability was derived from custom and usage. The judgment of the state of Bombay v Narasu Appa Mali has not yet been overruled and continues to govern the issue of the protection of personal laws from the Constitutionality test.

• Shah Bano case (1985)

In the case of Md. Ahmed Khan v. Shah Bano Begum¹⁵, the Supreme Court of India granted a maintenance appeal filed through an SLP to a divorced woman named Shah Bano under Section 125 of the Cr. P.C., despite the fact that she had been denied maintenance under Muslim personal law. This decision was in direct opposition to the beliefs of Muslim personal laws. In 1985, the Supreme Court ruled in her favor under the “maintenance of wives, children, and parents” provision (Section 125) of the Criminal Procedure Code, which was applicable to all citizens, regardless of their religious affiliation. Additionally, the SC proposed the establishment of a uniform civil code. In 1986, the Muslim Women’s (Right to Protection on Divorce) Act (MWA) was passed by the government under pressure, rendering Section 125 of the Criminal Procedure Code inapplicable to Muslim women.¹⁶

• Danial Latifi v Union of India (2001)¹⁷

Shah Bano’s counsel, Danial Latifi, filed a Writ Petition to the Supreme Court in which he contested the constitutionality of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Muslim Women (Protection of Rights on Divorce) Act, 1986¹⁸ was subjected to a test by the Supreme Court in accordance with the principles of fundamental rights. The Muslim Women (Protection on Divorce Act), 1986 was not found to violate the Constitution or fundamental rights by the Supreme Court in 2001.  The bench noted that a Muslim spouse is obligated to provide for his divorced wife’s future and pay maintenance, which may be extended beyond the Iddat period, in accordance with Sec 3(1)(a) of the act.¹⁹

The ratio of this case highlights an inclination towards keeping the personal laws intact, and not wiping them out for a uniform code, if the laws have constitutionality. 

• Shayara Bano vs Union Of India And Ors: Triple Talaq Case²⁰

In accordance with Article 14²¹ read with Article 13(1)²² of the Indian Constitution, the Constitution Bench of the Supreme Court declared the act of immediate Triple Talaq or Talaq-e-biddat, which is the practice of divorce in the Muslim community, to be unconstitutional by a 3:2 majority. The practice of instantaneous Triple Talaq has been declared unconstitutional by a five-judge Constitution Bench, with a vote of 3:2.

This highlights that the Judiciary has the intent to bring about reforms in personal laws. 

However, judicial reforms can only work to an extent, beyond which legislative reforms are required. These reforms could either be within the personal laws or in the form of a uniform code altogether. But these reforms have their own challenges. 

Learning from the past and the present: Goa and Uttarakhand

The states of Goa and Uttarakhand have their own Uniform Civil Codes, with Goa following the Portuguese Civil Code since 1867 and Uttarakhand having implemented it only recently on February 7, 2024. Can these models be studied and used as the guiding light for framing of the code on a national level?

Goa

The Portuguese Civil Code²³ was enacted in 1867 and was applicable to Goa by extension of being a Portuguese colony. The code has several provisions that unified personal laws across religions. Everyone has to follow the same procedure for registration and dissolution of their marriages, and for matters of inheritance and succession. It treats sons and daughters equally in matters of inheritance and also has a special provision of communion of marital assets, i.e.  that one would have joint rights to the property (both ancestral and self-acquired) of his/her spouse (Article 1108, Portuguese Civil Code, 1867). This is unlike the Hindu law, where the wife is a legal heir, but not the joint owner of the spouse’s property by way of communion.

On the surface, the Goan Civil Code seems to have achieved uniformity, but it has its own setbacks and loopholes due to which it is not as uniform and not an ideal model to follow. The concept of communion of marital assets is formulated according to the times of 1867, when divorce was not as prevalent. Divorce would be discouraged in these circumstances, as it would mean potential loss of property. It is not as gender-equal as it seems: a woman can jointly own the property but the husband has the power to manage it. (Article 1189 of the Portuguese Civil Code, 1867). The exceptions to the code are also critical: There are several digressions for the Hindus and the Catholics. The Code of Gentile Hindu Usages and Customs of Goa recognises the concept of Hindu Undivided Family for the purpose of taxation, attributes a Karta (Head) of the family²⁴ and very controversially so, also allows for bigamy if the first wife does not bear a child by 25, or a son by the age of 30.²⁵

The Goan population is limited to a few lakh people and the number on which this code is applicable is even smaller as it only applies to “Goans”: whose parents or grandparents were born in Goa before 1961.²⁶  With its inherent loopholes and the compromise on equality in the deeper layers of the law, it may be difficult to put forth the code as a model for implementation at the national level; but certainly some of its egalitarian principles can be carefully selected, modified and adopted. 

Uttarakhand

On February 7, 2024 the Uttarakhand State Assembly passed the bill of Uniform Civil Code²⁷. It is a fair attempt to bring uniformity in personal laws, but has some serious potential setbacks that point towards the apprehensions of the critics of UCC coming true. While it has done away with discriminatory practices such as triple talaq and unequal share of inheritance for sons and daughters which infringe fundamental rights, it has itself introduced regressive provisions that will undermine individual liberty and right to life. The laws mandating registration of live-in relationships have faded the line of distinction between marriages and live-in relationships, and the power in the hands of the Registrar to reject the application means individual liberty is compromised and so is the Right to privacy, and by extension the right to life. More so, these personal laws have been criminalised pushing the subject matter from the ambit of civil towards criminal law. The nature of these laws indeed indicates an infringement of fundamental rights and violation of the constitutional spirit of Liberty and Equality.

The Goan code may still be excused for some of its laws owing to the period in which it was drafted, but the Uttarakhand civil code is a bill of the present, and nothing can possibly justify compromise of Individual Liberty and Privacy, both of which are fundamental rights under the Constitution of India. The Uttarakhand model, while attempting to achieve progress through unification of personal laws, has gone a little too far, failing to maintain the intricate balance of secular unification in the public sphere and protection of the private sphere. 

Challenges

Socio-political challenges

The implementation of UCC might be seen as a tool of polarization and may cause rebellion and revolt—especially by the minorities who will see this as a threat to their traditions and view it as majoritarian politics and systematic oppression of minorities. In such circumstances, even if the statute is inclusive, it would be difficult to bring it to the level of satisfaction of all the communities in the country—including not only religious communities but also tribals and other indigenous people.

The 21^st Law Commission of India, headed by former SC Judge Balbir Singh Chauhan had deemed Uniform Civil Code to be unnecessary and undesirable “at this stage” in its consultation paper on “Reforms of Family Law”. The commission suggested a series of reforms within the personal laws in order to make them constitutionally aligned with fundamental rights. Flavia Agnes, a renowned legal scholar, in one of her articles reiterated the recommendations of the Law Commission to emphasize on the need of uniformity of rights, not laws.²⁸These reforms would bring about equality within the communities, rather that between the communities.²⁹

If Ambedkar’s voluntary model were to be followed wherein only those who agree would be bound by UCC, there are chances that reverse psychology would apply, and no community would accede to the Code, as doing so would mean letting go of their religious identity while there are other religions who don’t do so. It is only when the code would apply to everyone, that there are chances that the code will eventually be accepted (only if the resistance does not amplify to the point that the code has to be repealed). 

Another challenge is the inclusivity of the code. Despite all the difficulties, even if one assumes that the Code is able to incorporate and accommodate the customs and traditions of most religions, there will still be tribals and other minorities whose interests cannot be accommodated. Creating exceptions may be one solution, but eventually there would be another wave of movements by different categories to be included in the exception category, which may further fuel religious polarisation. 

Legal Challenges

Constitutional Validity: touchstone of Article 14 and 21

The most fundamental question surrounding the implementation of UCC will be whether it is in derogation of fundamental rights under the Indian Constitution. It will be highly dependent on the extent of interference in personal laws in pursuit of uniformity. If that balance were to be drawn, UCC can get through the tests of constitutionality.

Proportionality test

The doctrine of proportionality is a German concept that has been laid down in India by the precedents of Modern Dental College & Research Centre v. State of Madhya Pradesh³⁰ and subsequently re-evaluated by Anuradha Bhasin v. UOI.³¹ It was held that a restriction of the constitutional right will be constitutionally permissible if it fulfils the four-pronged analysis:

“(i) it is designated for a particular purpose; (ii) the measures undertaken have a direct rational nexus to the fulfilment of that purpose; (iii) the measures taken are necessary as they are the least restrictive means available to achieve the purpose (necessity stage) and (iv) there has to be a proper balancing in the relations of achieving the purpose and limiting a right. (balancing stage)”

UCC has a designated purpose of bringing about equality in personal laws, and the measure of uniform personal laws has a direct rational nexus to this purpose. The measures taken would be the least restrictive means as they would only standardise the common parts of all while preserving culture and religion, thereby also qualifying the balancing test. 

Question of Equality

Personal laws in India are grappled with several regressive provisions seeking immediate redressal: Irretrievable breakdown of marriage is not a ground for divorce under Hindu Marriage Act, 1955; Muslim women are not entitled to maintenance under S.125 CrPc³² and polygamy is allowed under muslim laws. Would a law that seeks to enforce Article 14 by eradicating these drawbacks, end up violating it? 

If we learn from the setbacks of the Uttarakhand UCC and draft the legislation in a manner that does not violate the principle of equality and liberty, then UCC will be a harbinger of equality, not its violation.  

 Article 25

Article 25³³ grants the fundamental right to freedom of professing, practicing and propagating one’s religion, subject to public order, morality and health. Article 25 (2)³⁴ also elucidates that this article shall not affect lawmaking or law enforcement relating to regulating secular activities associated with religious practice. 

The most delicate challenge while drafting the UCC will be to strike a balance with Article 25, which protects religious and cultural diversity. The questions of marriage, family, succession, and inheritance overlap with legality and religion. There are certain parts of these laws that are inseparable from religion. Article 25(2)(a) clearly states that the State can make laws on secular activities associated with religious practices. Issues of family law such as marriage may differ in the means of their practice depending on the religion, but the nature of the practice itself is secular, it is a common social institution amongst societal structures albeit diversified in the “how” of these practices.   It is therefore, constitutionally permissible to make uniform laws that regulate marriage, inheritance, and succession, within the boundaries of Article 14 and 21. Separating religion and law, perhaps not completely, but to the largest extent possible without violating Article 25, will also facilitate bringing about equality within personal law. If a distinction can be drawn between religion in the private sphere and religion in the public sphere, then it may be possible to limit certain parts of marriage and family strictly to the law and bring about uniformity. Additionally, uniformity would not mean that all religious practices are eradicated. It simply means that certain legal obligations surrounding these social institutions would be uniform for everyone, irrespective of their religion. For example, all marriages may be required to be solemnized, but the way they are solemnized may be different from religion to religion. This example, however, is a very simplistic portrayal of the inherent complexity and detail that may be required to draw this distinction. Even the Uttarakhand Civil Code has accounted for protection of religious diversity, which can be gauged from Section 4 and 5 of the Act  ³⁵ wherein Section 4 even provides scope for consanguineous marriages in social groups where it has been a custom, thereby ensuring that the voice of diversity does not get brushed under the carpet of uniformity. 

Another similar challenge would be to draft legislation that merges the diversity of all the personal laws. For instance, marriage is a sacrament in Hinduism and a contract in Islam. How would the Uniform Code perceive marriage in this scenario?

Conclusion

The country may yet not be ready for a complete unification of personal laws, but the country is ready for strong discourse and deliberation. Now is the time to raise the right questions and move towards finding the answers to them. The country is ready to handle discussions and draw distinctions between what part of the religion belongs to the private sphere and what belongs to the public sphere. This specific exercise may be a little more difficult than drafting the code itself, but now may be the right time. Indeed, there is a lot of ambiguity and yet more of religious polarisation; but the country is definitely aware enough to push the rolling stone towards the common path that will unite the roads of different personal laws.  

This article is authored by Katyayini Rana, a student at Institute of Law Nirma University.

Views expressed are personal.