Why India Needs a Uniform Civil Code
The debate around introduction of a UCC in India is clearly not a legal or sociological issue, but a political one.
The Imrana Rape Case of 2005: A 28-year-old woman, a mother of five children was raped by her father-in-law in 2005. Soon after, a local Muslim panchayat asked her to treat her husband as her son and declared their marriage null and void. This judgment was given on the basis of Islamic rulings that did not distinguish between rape and adultery.
The incident mentioned above is just one amongst the many others that cannot possibly be justified by any law of the land and yet prevail in the Indian society since citizens as of now are governed by a set of ‘Personal Laws’ in matters regarding Marriage, Divorce, Maintenance, Inheritance, and Succession.
These Personal Laws are followed by different communities and are largely influenced by their religious customs. The laws governing the said ‘personal matters’ of Hindus are thus very different from those of Muslims, Christians, and so on. The Hindu Personal Law which governs Hindus, Jains, Buddhists, and Sikhs is codified by an Act of the Indian Parliament, as are the Personal laws of Parsis and Christians. The Muslim Personal Law, however, is un-codified and based on ‘Shariat’.
Personal Laws are Immune to Reform
On the whole, all Personal laws can be viewed as discriminatory for a modern democracy like India. Regardless of religion, their subtext remains that women are somewhat inferior to men, and deserve limited rights and legal privileges. However, while the Modern Hindu law has been subjected to various reforms, the Muslim Personal Law has pretty much remained stagnant. Any attempts to introduce new comprehensive changes have been met with opposition from Muslim bodies calling it an ‘interference in their religious freedom’.
An example of this is the practice of Triple Talaq, by which a Muslim man could divorce his wife merely by uttering the word ‘Talaq’ thrice. This was only declared unconstitutional in 2017 in the Supreme Court’s landmark judgment on the Shayra Bano Case. This justice was long overdue for women of a particular community in a progressive society. However, despite the discriminatory and inhuman nature of this practice, Muslim bodies such as the Bebaak Collective stood up against its criminalization. They claimed that the Muslim Women (Protection of Rights) Bill would make Muslim women vulnerable to violence and insecurity instead of protecting their rights.
With India’s long-standing history of appeasement politics, and prominent Muslim bodies and legislators being instrumental in blocking any judicial action to safeguard women’s rights from such archaic laws, these unconstitutional customs have been allowed to remain in vogue in the guise of freedom of religion. This is clearly not a legal or sociological issue, but a political one.
Uniform Civil Code & The Indian Constitution
During debates in the Constituent Assembly, Dr. BR Ambedkar had maintained that,
“I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, discriminations, and other things, which conflict with our fundamental rights.”
For a country where the Preamble of the Constitution secures to all its citizens equality of status and opportunity, assurance of the dignity of the individual, and the unity and integrity of the nation, these Personal laws often seem to be in stark violation of these basic principles.
After all, it makes little sense to allow Muslims, for example, to marry more than once, but prosecute Hindus or Christians for doing the same. This discrimination solely based on religion seems very much against the said principles of equality. Yet, any attempt to bring uniformity in laws regarding civil matters is viewed as an attempt to interfere in the religious practices of a particular community, especially by Muslim groups. It is important to note that no mention of gender injustice is made in such debates.
Article 14 of the Constitution, as a fundamental right, guarantees equality before the laws and equal protection of laws. Under Article 15 it is guaranteed that the State shall not discriminate against any citizen on grounds of religion, caste, sex, etc. Further, Article 13 provides that all laws in force in the territory of India before the commencement of the constitution, so far as they are inconsistent with the provisions of this part, shall be void.
Keeping this in view, the formulation of a Uniform Civil Code is even more vital for India, which would apply to all religious communities in matters such as marriage, divorce, inheritance, and adoption.
Article 44 of the Indian Constitution emphasizes on this, stating that, “The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India”. However, this is merely a Directive Principle of the Constitution and hence not enforceable by Court, which continues the debate on the implementation of UCC in India.
Why do we need a Uniform Civil Code?
A Uniform Civil Code would provide a single set of laws for the entire country, applicable to all religious communities in personal matters such as marriage, divorce, inheritance, adoption, etc.
With changing lifestyles along with time, it is of uttermost importance for a diverse country like India to have a single set of laws irrespective of religion as far as social ethics are concerned. The irrational fear amongst minorities that such a Uniform Code would snatch a community of their personal identity is unjustified, for what identity it is that would be considered a crime in the laws of a liberal democratic society?
A Uniform Civil Code does not ask for one religion to start following the customs of another religion. It asks for homogenization in personal laws in order to make them resilient with the changing dynamic social system.
Religion is concerned with devotion to God, spirituality, and salvation, while Personal Law has its domain in marriage, divorce, adoption, succession, and inheritance. Faith of a person in religion is not restrained by personal law. When a country has Uniform Criminal Laws, there is no reason why it shouldn’t have Uniform Civil Laws.
A Uniform Civil Code is necessary for the integration of India by bringing all its communities onto a common platform which at present is governed by personal laws that do not form the essence of any religion. It would ensure equal status to all citizens irrespective of what community they belong to and make sure that India as a nation stays true to its fundamental right of “equality”. Apart from this, a common set of laws governing all civil matters would also simplify our legal system and strengthen national integrity.
Politics around the Uniform Civil Code
Until now, no concrete effort has been made towards the introduction of a UCC in India. Political parties with a history of minority appeasement have time and again argued that such a code would be against democracy and interferes with religious affairs due to its apparent contradiction with our fundamental rights. This is completely not true as despite being practiced by different religious communities, religion is not concerned with personal laws and is certainly not above human rights.
The Modi Government in its 2019 Manifesto had promised the formulation and implementation of a Uniform Civil Code, stating that it would “draw upon the best traditions and harmonize them with modern times.” However, the road to it may not be that smooth considering the past response of the left and particularly minorities over the government’s previous introductions such as CAA, abrogation of Article 370, and now the Farm Bills.
The real social opposition towards bringing a UCC has been the Muslim community which perceives it as an attack on its religious freedom. Nonetheless, in a modern society, religious fundamentalism must go and all citizens, men and women alike should have access to social as well as economic justice.
India needs to do away with the largely discriminatory personal laws and bring about a Uniform Civil Code. This should be done keeping the religious, social as well as political aspects in mind through broad consensus to ensure true secularism in the country.
Law is an instrument for social change and the same applies here — in civil matters of a modern liberal nation.