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Explainer: What Is the UCC Indians Are Talking About?

Indians are currently debating the implementation of a Uniform Civil Code to standardize family law practices across the country's many religious communities and federal entities. Supporters argue that the constitution mandates a secular, uniform law for all, but religious conservatives worry that their particular customs may be suppressed.
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India justice

India flag with statue of lady justice, constitution and judge hammer on black drapery. Concept of judgement and punishment © Mehaniq / shutterstock.com

July 06, 2023 23:35 EDT
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The idea of a Uniform Civil Code (UCC) is “one country, one rule.” Backers of the UCC use the slogan “One Nation, One People, One Culture” to support their belief that one code of law for marriage, divorce, child support, inheritance, adoption and property succession should be applied to all segments of society, regardless of their religious beliefs. This is predicated on the idea that there is no relationship between religion and the law. In the present system, each religious community instead follows its own customs.

In some form or another, discussions over whether a UCC is desirable and feasible date back to our country’s founding and long before. The Constitution of India included the UCC in Article 44 of Part IV, Directive Principles of State Policy (DPSP). The provision reads, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” This constitutional mandate is a statement of intention, not something enforceable in courts of law.

Background of the UCC debate

The idea of a single civil code was first discussed in India during the British colonial era. In October 1840, the Lex Loci Report emphasized the importance of uniformity in codifying Indian law related to offenses, evidence, and contracts. It argued that the personal laws of Muslims and Hindus should not be codified. The Queen’s Proclamation of 1858 guaranteed complete non-interference in religious matters, preserving diversity and respecting multiculturalism. As a result, family law continued to be governed by specific codes in different towns and cities, while criminal laws were standardized nationwide.

However, during the post-colonial period (1947-1985), influential figures like Jawaharlal Nehru and B.R. Ambedkar advocated for a uniform civil code during the formulation of the Constitution. Despite resistance from religious fundamentalists and limited public awareness, the UCC and the DPSP under Article 44.

In a recent report titled “Reform in Personal Laws” published by the 21st Law Commission of India between 2016 and 2018, retired Supreme Court Justice Balbir Singh Chauhan expressed the view that implementing a UCC is neither necessary nor suitable at this time. He argued that the simple existence of diverse family laws does not constitute discrimination but reflects the strength of a vibrant democracy. The report further highlighted that many countries are embracing recognition of cultural differences through plural laws rather than pursuing “flat uniformity.”

One of the fundamental principles of the Constitution of India is secularism. Many religions have coexisted for millennia in the varied, cosmopolitan country. According to Article 25, everyone is free to proclaim, openly practice and spread their religion as long as doing so does not interfere with public morality, order or health. Article 26 further specifies that all denominations are free to do their own business in religious concerns. To safeguard many Scheduled Tribes’ unique cultures and identities, Articles 371A–371I restrict Parliament’s ability to interfere with their customary laws and practices.

We value the efforts of the 22nd Law Commission to address regressive and patriarchal legislation, promote gender equality and respect multiculturalism. Legislative modifications within each code of family law are necessary to ensure freedom of religion and multiculturalism for people of all genders, living in diverse family structures, without compromising their right to equality. This remains true even without imposing a single code on all.

Constitutional principles of secularism and equality

Article 44 of the DPSP mandates a uniform civil code, but Article 37 stipulates that the principles of the DPSP “shall not be enforceable by any court.” However, they are “fundamental in the country’s governance.” This shows that even though our Constitution recognizes that a UCC should be applied in some way, it does not impose specific requirements for its implementation.

The basic constitutional principles of India are reflected in many provisions. Article 15 prohibits discrimination based on race, caste, gender, or place of birth. Article 25 guarantees freedom of conscience, profession, practice, and promotion of religion, with reasonable restrictions related to public order, health, and morality. Article 25 (2) establishes rules for secular activities in relation to religion, social welfare, and reform. Article 26 empowers citizens to establish and manage religious institutions, while Article 27 forbids the State from collecting taxes to support a specific religion. Article 28 allows religious instruction in educational institutions. The term “secularism” was incorporated into the preamble through the 42nd Constitutional Amendment Act. The Supreme Court recognized secularism as fundamental to the diversity guaranteed under the constitution in S.R. Bommai v. Union of India

Among the states in India, Goa is the only one that has a uniform civil code in the form of a common family law. The Portuguese Civil Code, which is still in use today, was first implemented in Goa during the 19th century and remained in place after the state’s liberation from the Portuguese Empire. Goa’s progressive UCC allows for equitable distribution of wealth and income between spouses and children, regardless of gender. Every birth, marriage and death must be registered voluntarily, and divorce is provided for under various provisions. Muslims who register their marriages in Goa are prohibited from practicing polygamy and Triple Talaq (instant divorce). All assets and wealth acquired during a marriage are jointly owned by both spouses. In case of divorce, each spouse is entitled to half of the property, and in the event of death, the surviving spouse also receives half. Children cannot be completely disinherited by their parents; they must inherit at least half of their parents’ possessions, which must be divided equally among them.

However, the code has some shortcomings and is not precisely uniform. For instance, under certain conditions outlined in the Codes of Usages and Customs of Gentile Hindus of Goa, Hindu men have the right to practice bigamy if the wife does not bear a child by the age of 25 or a male child by the age of 30. For other communities, bigamy is illegal.

India must have a national conversation

The codification of personal laws specific to Hindus, Muslims, Christians and Zoroastrians in India does recognize their constitutional right of equality, which encompasses a range of rights related to diversity, identity and individuality. No universal family law applies to all Indians and is accepted by all of the religious communities that coexist in India. However, most of them agree that UCC may become desirable when the people of India achieve full educational empowerment, and it could significantly enhance and strengthen Indian nationhood. Different people have different ideas on when and how it should be formulated. Political and intellectual leadership ought to work to forge a consensus rather than utilize it as an emotional issue to advance their political interests.

Political and intellectual leaders should work towards forging a consensus on this matter rather than exploiting it as an emotional issue to further their political interests. The fundamental issue which Indian civil law has yet to address is how to treat every human being with respect. This is not solely about protecting minorities or maintaining national unity.

Therefore, any proposed UCC should be preceded by a process that is democratic, consultative, participatory and transparent, in line with the spirit of the DPSP, considering the complex landscape and the contradictions and conflicts that must be taken into account. The Law Commission might provide a draft of the proposed UCC and give all stakeholders plenty of time to ponder over it. The Law Commission could contribute by drafting the proposed UCC and allowing stakeholders ample time for contemplation. The government should initiate a dialogue on the UCC, in line with the principles of the constitution, across all communities, making them more gender-sensitive while keeping fundamental principles such as equality, non-discrimination, personal autonomy and agency, inclusivity, fairness, and secularism at the forefront to eliminate all forms of discrimination.

[Anton Schauble edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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