The origin of the UCC dates back to colonial India, when the British Government submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification. Increase in legislation dealing with personal issues in the far end of British rule forced the government to form the B N Rau Committee to codify Hindu law in 1941. The task of the Hindu Law Committee was to examine the question of the necessity of common Hindu laws. The committee, in accordance with scriptures, recommended a codified Hindu law, which would give equal rights to women. The 1937 Act was reviewed, and the committee recommended a civil code of marriage and succession for Hindus. The UCC calls for the formulation of one law for India, which would be applicable to all religious communities in matters such as marriage, divorce, inheritance, adoption. The UCC aims to provide protection to vulnerable sections as envisaged by our sagacious constitutional experts like Dr Ambedkar.
“Any attempt to have a uniform civil code must ensure that it is women-centric while not being disadvantageous to other genders.” – Justice Nagarathna, Judge Supreme Court of India
Overall, the Hindu personal laws are codified under four Acts the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. In the case of Muslims, the personal laws are derived from their religious texts including the Quran and the Sharia. Among the various legislations concerning the Muslim community are the Shariat Application Act and Dissolution of Muslim Marriages Act. For Christians, the personal laws applicable include the Indian Christian Marriages Act and the Indian Divorce Act. There are differences in the three personal laws, which the UCC seeks to equalise. The idea comes from Article 44 of the Constitution, which is one of the Directive Principles of State Policy. It provides that the State shall endeavour to secure for all citizens a UCC throughout the territory of India. The constitution is thus very clear that unless a UCC is followed, integration cannot be imbibed.
When enacted, the code will work to simplify laws that are segregated at present on the basis of religious beliefs, like the Hindu code bill, Shariat law, and others. The code will simplify the complex laws around marriage ceremonies, inheritance, succession, and adoptions, making them one for all. The same civil law will then be applicable to all citizens, irrespective of their faith. So far, the personal laws of Hindus, Muslims, Parsis, Christians etc. find their source and authority in their religious ancient texts. The devil lies in the details. UCC is a complex issue concerning various sections of society across castes and communities. It will require far wider consultation and much deeper research. Given the size of the country and its diversity, it will not be easy to complete that process so soon.
Why UCC is important?
However, the fact is that it is only a directive principle laid down in the Constitution, and as Article 37 of the Constitution itself makes clear, directive principles shall not be enforceable by any court. Nevertheless, they are fundamental in the governance of the country. This shows that although our constitution itself believes that a UCC should be implemented in some manner, it does not make this happen. For the purpose of equality and equal justice, we need UCC. Personal laws violate the basic rights and dignity of women. In personal laws, women did not get their rights after divorce or at the time of the death of their husbands, but with the implementation of UCC they will get their rights, children can have a bright future, and even it will also help our country to grow and to develop. Personal laws are outdated and not relevant to the 21st century.
Personal laws are highly gender-biased. Most major religions developed, over time, a bias towards women – treating them as somewhat inferior. In Christianity, Eve was meant to be the root cause of all evil. In Hinduism, Sati was practiced in some communities for ages till the British formally put a stop to it. The practise of dowry and the ill treatment of widows continue till today in many regions. In Islam, the staunchest Muslims don’t let women travel alone, wear something revealing, go to work or drive a car etc.
These are just a few examples of the deep underlying biases that lie within faiths. Such practices are justified via religious texts or customs that simply must not be broken. It has taken generations of rebellion to inculcate any change within these religions. In India, most Muslim women get restrained from their right to property, dowry settlement and divorce. Muslim law allows polygamy and is a patriarchal law allowing a man to give divorce to his wife by allowing Triple Talak which has been abolished. However Muslim women have been given no right to file for divorce without the permission of their husbands as given in Quran and hadiths. Gender justice cannot be achieved through personal laws, especially in the case of Muslim women. Muslim personal law, as followed in India, is inherently biased against women and many times leads to their exploitation.
UCC will do away with all kinds of discrimination?
Moreover, because of the application of personal law in matters of marriage, divorce, maintenance, inheritance etc., Muslim women are precluded from enjoying the benefits accrued to them through secular law, which their counterparts from other religious communities enjoy. Through UCC speedy justice can be delivered and all people will get equal status and there would be no discrimination. Overlapping provision of law will also be avoided. The need for UCC is related to inconsistencies in Tax laws. Like in Hindu Undivided Families they are exempted from taxes whereas Muslims are exempted from paying stamp duty on gift deeds and also it deals with the problem of Honour killings by extra-constitutional bodies like Khap Panchayats.
Contrary to popular belief, a UCC will not take away all the personal entitlements of an Indian Muslim; it will only make those entitlements unenforceable in a court of law. Parties will still be free to practice their religion as they like, though the legal enforceability attached to these practices will be extinguished.
It must be understood that a UCC is not just a demand for Hindus, Muslims, Christians or Parsis. It is rather for giving all women their human rights. It is time we depoliticize the question of UCC. At the heart of the desire for a UCC is the determination to do away with discrimination. It is time we brought all personal laws within the constitutional principle of equality. After all, how can a country be secular if its laws are not?
The last time this nation witnessed something this momentous was back in 1947, when we had just gained independence and were deciding to make laws for independent India with an independent mind and soul. During the constituent assembly debate, the issue was moved from the Fundamental Rights chapter to that of the Directive Principles of the State Policy of the Constitution of India, a political compromise that made it only recommendatory for the state to enact law on it. It is to be noted that during the constituent assembly debates, most of the Muslim members who voiced their opinion on the UCC were all men and except for one, all others wanted to exclude it. On the other hand, a parsi (Minoo Masani), a Christian (Rajkumari Amrit Kaur) and a Hindu (Hansa Mehta) wanted to make it a fundamental right. Jawaharlal Nehru wanted to bring Hindu Code in effect as soon as possible, as he thought that it would not only bring uniformity in the country but also free Hindu women from age-old superstitions, complexes, patriarchal feelings, and deep-rooted prejudices running along caste, class, religious and region. But unfortunately, he did not hold the same opinion for Muslim women. No steps were taken by his Government to codify laws for Muslims, and overlooked the concept of having a common code all together. In fact, Nehru believed that bringing UCC immediately after partition will leave the Muslims who stayed back in India ‘insecure’ and that they were not ready for the change. Today, we are closer to the goal than ever before. The India socio-legal scene is past the debate on whether the UCC is desirable. In BJP’s manifesto of 2019 Lok Sabha election, UCC was a key promise. The debate to have a uniform code has been invigorated in this era. From increasing the age of consent of a married girl u/s 375 of IPC from 15yrs to 18 yrs to having a law that criminalizes triple talaq, there is a natural tilt towards having a uniform code that could bring equality.