“Justice, Liberty, Equality and Fraternity”. These are the four tenets that the preamble of the Indian Constitution proclaims to guarantee to all its citizens. In the spirit of these inalienable rights, the advocates for a Uniform Civil Code (UCC) vocally demand its implementation at a national level. The idea of a nation governed by one set of laws, a “Samana Nagarik Samhita”, for all its citizens might sound ideal in a utopian society; but in a country steeped in diversity, history, and culture, when one’s faith and belief are ingrained in one’s identity, introducing uniformity in law is a polarising and controversial challenge. To understand the wide-ranging perspectives of the proponents as well as the critics of the UCC, one has to revisit the history of India, the complex web of personal laws that draw from religion, and the origins of the idea of “one nation, one law” and hence the birth of the Uniform Civil Code.
The British Raj
The British colonial establishment in the 1900s was determined to dismantle the unity of the Indian people, and introduced its infamous divide-and-rule policies across the country. Keeping with this divisive ideology, they recommended the codification of Indian law about contracts and crimes in keeping with more Westernised ideologies. Additionally, they introduced Hindu and Muslim personal laws outside the jurisdiction of such codification.
In the British era, the interpretation of personal laws across the country was very dissimilar due to the variational interpretations of scriptural or customary laws in both Hindu and Muslim communities. There was a distinctive difference in interpretations of personal laws within Hindu castes, where communities like the Shudras chose not to abide by the confines of scriptural and Brahmanical law. There was also a glaring disparity in investigating and ruling over instances keeping in mind each community’s specific beliefs and practices and the fear of opposition from the so-called “high caste” Hindus who held considerable sway in the community.
On the other hand, the Muslim Personal law that drew from Sharia was very non-uniform and lacked codification. Although based on Sharia, it intertwined with indigenous culture and popular beliefs, which led to customary laws that were often to be discriminatory, particularly towards women.
Social reformers had a crucial role to play in enacting legislative policies that curbed gender-based discrimination under these personal laws, some of which included the Hindu Widow Remarriage Act, 1856 [1] and the Hindu Inheritance (Removal of Disabilities) Act, 1928 [2]. However, Muslim personal laws are still made by the All India Muslim Personal Law Board (AIMPLB) [3], a private entity. This meant that these protections could not be extended to Muslim women due to staunch opposition from conservative Muslims. Adding to the controversy, Muslim women were also not fairly compensated in terms of property inheritance and dowry settlements, both of which are established under Sharia but were not provisioned for in Muslim Personal Laws.
The first call for a Uniform Civil Code instead of personal laws was made by the All India Women’s Conference (AIWC), which was based on The Karachi Congress Resolution guaranteeing gender equality. Another landmark push for the UCC came during the passing of the Hindu Women’s Right to Property Act of 1937, led by the B.N Rau committee. While assessing the necessity of Hindu laws, the committee, although primarily focused on reforms in Hindu personal laws, determined that a UCC was essential to ensure gender equality and to keep up with the modern trends of society. The introduction of personal laws during the colonial period led to wide disparities in the interpretations of the law in different parts of the country, the consequences of which were mostly faced by women, and hence came the demand for a Uniform Civil Code.
The Nehruvian Period
Jawaharlal Nehru was one of the first proponents of a Uniform Civil Code in Independent India. His support for a UCC was echoed by his supporters and women members of the newly established Indian Parliament. The task of drafting a Uniform Civil Code fell on the first Law Minister of India, Dr. B.R. Ambedkar. While drafting the specifics of it, it was found that orthodox Hindu laws, codified in the Shastras, enshrined a woman’s right to inheritance, divorce, alimony, and monogamy. Despite the ex-Prime Minister’s push for a UCC, it was met with unprecedented opposition and criticism leading to Dr. Ambedkar resigning from the Ministry. In the pursuit to still establish some order in an erstwhile subjugated country with haphazard and vague personal laws, the Nehru government introduced the Hindu Code Bills [4] to bring about sweeping reforms into society.
However, this attempt to bring about some order was met with vehement opposition from the orthodox yet again. In the end, democracy prevailed when the government finally struck a compromise and passed watered-down bills that took the shape of four acts, namely the Hindu Marriage Act [5], Succession Act [6], Minority and Guardianship Act [7], and Adoptions and Maintenance Act [8]. While these bills were far from what they set out to achieve, Nehru hailed them as a victory and stipulated that the State would continue to endeavour for a UCC, as per Article 44 of the Directive Principles of the Constitution. These Directive Principles of State Policy, although not enforceable by any court, are guidelines that are followed by the government.
However, these applied to the Hindu community and lacked substantial reforms, particularly in terms of reducing gender inequality. The non-applicability of this bill was severely felt by women in the Muslim community who were still subjected to personal laws. These were by their very nature, patriarchal and discriminatory, particularly in matters of marriage, polygamy, divorce and alimony, inheritance, and coparceners. Nehru, while proclaiming these legislative actions as an “outstanding achievement” of his time, admitted that they were far from ideal, and did not address the bulk of the issue at hand or the need for a UCC in the first place.
Secularism Versus Personal Law
Proponents of personal laws, religious clerics, and critics of the UCC have often embroiled themselves in fierce battles against the legislature and the judiciary in the country. One such case which rose to national prominence and heralded significant legislative reforms and fierce nationwide upheaval, was the case of Mohammad Ahmed Khan v/s Shah Bano Begum [9]. A precedent that continues to hold relevance even today and that led to intense public and political scrutiny, the story of Shah Bano is considered a major turning point in the movement against personal laws.
The case of Shah Bano was a story of resilience, justice, and reparations. Bano, a 73-year-old woman sued her husband for his refusal to pay her maintenance after he unilaterally divorced her using the controversial talaq-e-biddah, more commonly known as triple talaq. The very existence of this provision, given solely to men, was an astounding example of the discriminatory nature of personal laws which were disparaging to all women. While Khan argued that he had abided by the Muslim Personal Law, the Supreme Court ruled in favour of Bano in 1985 per the “maintenance of wives, children, and parents” provision (Section 125) of the All India Criminal Code. The Court further called for the establishment of a UCC to prevent cases like these. This verdict was met with widespread uproar from the orthodox Muslim community who denounced it as a direct attack on their laws and by extension their liberties and communal identity. Khan spearheaded a movement to demand “absolute autonomy” regarding Muslim personal laws.
The biggest blow to the very foundation of equality and liberty enshrined in the constitution came in the form of The Muslim Women Act of 1986 [10], enacted by the Rajiv Gandhi government. In an astonishing flip-flop to appease the Muslim minority after a scathing electoral defeat, this act essentially nullified the Supreme Court verdict on the Shah Bano case by making Section 125 inapplicable to Muslim Women.
The second landmark case which was equally relevant nationwide, but was conversely considered a major win for all Muslim women and also strengthened the calls for a UCC – the Shayara Bano v/s Union of India case [11]. This case once again brought to the forefront, the controversial triple talaq. Shayara Bano, the plaintiff, declared in her writ petition to the Apex Court, the discriminatory, unconstitutional, and illegal nature of the practices of instant Triple Talaq, polygamy, and Nikah Halala.
Her petition found widespread national support, among which were notable organisations including the Bhartiya Muslim Mahila Andolan. The AIMPLB, defending the case against these practices, argued that personal laws were not subject to judicial review, claiming that these practices were protected under Article 25 of the Indian Constitution. The highly anticipated verdict came on August 22, 2017, wherein a five-judge bench declared the practice of triple talaq and talaq-e-mughallazah (irrevocable divorce) unconstitutional and further prohibited the continuation of these practices. This verdict not only signified a colossal victory for women all across the country but once again highlighted the need for a UCC.
These cases are two among the several hundred that have been submitted to courts across the country, where personal laws stand in direct contradiction to those very tenets of the constitution that the preamble guarantees to every citizen. The case for the preservation of personal laws has quite often led to the demand that personal laws be exempted from the Indian Constitution and hence not be subjected to judicial review or challenged in Courts. In a country where secularism signifies equality of all citizens before the law, irrespective of their gender, caste, creed, or religion, legal scholars argue that personal laws stand contradictory to this definition since they are often exempted from being subject to the letter of the law.
Before one discusses the implementation of a UCC in India, one needs to summarise the case made by its advocates and its detractors. The fundamental ideology behind the call for a UCC is to ensure that every citizen stands equal before the law. A UCC would ensure that no citizen is treated differently solely because they subscribed to a certain system of belief. In an idealistic society, this would be a foundational principle of democracy.
However, the case against the UCC is based on the premise that one’s religious identity and preservation of culture. So the underlying question behind this intensely polarising debate can be summed up as — “Does one’s right to practise religion come at the cost of the law of the land?”
Implementing the Uniform Civil Code
Contrary to popular belief, the ruling Bharatiya Janata Party is not the first political party to call for the implementation of a nationwide Uniform Civil Code. The implementation of a UCC was first made by the Indian National Congress — the party that now stands staunchly against it, denouncing it as an attempt to curtail and attack minorities in the country. The Supreme Court has on multiple occasions renewed its recommendation of implementing a Uniform Civil Code. Yet it remains to be one of the most controversial and divisive legislative items on the agenda.
The BJP included the UCC in its electoral manifesto in 1998 and again in 2019, incidentally the year it gained a historic majority in the Lok Sabha elections. Keeping up with its poll promise, the BJP began laying the groundwork for implementing a UCC. Pushkar Singh Dhami, the Chief Minister of Uttarakhand constituted a five-member panel to provide a draft proposal on the Uniform Civil Code. The initial draft strongly recommended standardisation of the legal age for a woman to marry across all religions as well as legal recognition and registration of live-in relationships. Other states with BJP-led governments have also amplified their promises of implementing a Uniform Civil Code.
On June 14th, 2023, the National Law Commission invited the views of all concerned stakeholders on the implementation of a nationwide UCC. The panel set up by the law commission received nearly 8.5 lakh responses within a fortnight. Meanwhile, the Prime Minister renewed his push for a UCC in poll-bound Madhya Pradesh, claiming that the critics of the UCC aim to instigate the citizens of the country. Denouncing the politics of vote bank and appeasement, the Prime Minister stated that the UCC was envisioned in the constitution and was also asked for repeatedly by the Supreme Court.
While the call for a UCC is yet to take the shape of a bill presented to the parliament, political parties have already begun taking sides in this political conundrum. The official spokesperson for the INC while referring to the report of the 21st Law Commission stated that the implementation of a UCC was “neither necessary nor desirable”. The BJP’s key ally in Tamil Nadu, the All India Dravida Munnetra Kazhagam (AIADMK) has reiterated its stand against the implementation of a UCC.
The Aam Aadmi Party stated that it supported the implementation of a UCC “in principle” calling for nationwide consensus on its implementation. The Uddhav Thackeray-led faction of the Shiv Sena, once a fierce proponent of the UCC, has now declared it a political ploy by its former ally, the BJP, to garner votes. Other political groups call for the strengthening of pre-existing laws to safeguard the rights of women instead of introducing a UCC. But this still lies in contradiction to the existence of personal laws as well as its defenders who continue to fight for its exemption from all legal doctrines and by extension, the constitution.
The tribal communities viewed the clarion call for a UCC as a death knell for their age-old customs and also expressed their ardent opposition to the same. Meanwhile, the government showed its willingness to exempt some pockets of tribal and Christian communities in the North East from the Uniform Civil Code as was stated by the Chief Minister of Nagaland, Neiphiu Rio, after the Union Home Minister held talks with a twelve-member Naga delegation [12].
Political parties like the Bahujan Samaj Party as well as the All India Trinamool Congress also vehemently oppose the UCC the former stating that the government continues to focus on “non-essential” issues instead of addressing poverty and inflation and the latter accusing the government of playing divisive politics. However, is the comparison of the need for a nationwide UCC to unemployment a fair one, considering the lack of existence of any correlation between the two? Is the idea of one nation one law just another attempt at divisive politics or is it a call for uniformity and equality?
Conclusion
The Government is yet to introduce its proposal of a Uniform Civil Code in the Parliament, but considering the heated debate already surrounding this political landmine, the road ahead is tumultuous and unpredictable. In principle, a nationwide Uniform Civil Code is crucial to ensure equality, justice, and liberty for all. It also prevents the orthodox patriarchy from continuing discriminatory practices against certain sections of their community under the garb of one’s right to practise their faith. The argument that a Uniform Civil Code is a veiled attack on one’s culture and religion divides religious and legal scholars alike. But advocates continue to push for a Uniform Civil Code, invigorated by the Directive Principles stipulated in the constitution and driven by the idea of a society that guarantees equality before the law. Observing the situation as it unfolds, the Uniform Civil Code could take shape in the form of a policy driven by the tenets of the constitution or turn into a political ruction to deepen the societal divide, appease communities and play into the vote bank politics in the country.
A dream, once envisioned by the first leaders of Independent India, might face its fate shortly as the country gears up for a highly anticipated political and legislative contest.
Article by:
Kshitij G. Saha,
Chief Advisor,
PES MUN Society (RR Campus)