Uniform Civil Code: Background, Legitimacy and Arguments By Potharaju Jayantha from Jindal Global Law School
Recently, the father of modern legal education in India advocated the establishment of a Uniform Civil Code (hereinafter referred to as UCC) in India pointing out that even personal laws can be constitutionally scrutinized as they are subject to the Fundamental Rights enshrined in the constitution.[i] But what is the UCC, why is there such a debate about it and must it be implemented?
The roots for a UCC can be traced back to Article 44 of the Indian Constitution which calls for a UCC throughout the territory of India. But as most areas of civil connotation already have uniformly applicable laws attached to them, the UCC, if enacted will specifically deal with fields relating to marriage, succession, maintenance and adoption.[ii] Given that the institution of family is the bedrock for the larger institution of society, it is very easy to see why this topic is one that generates such polarized emotions in a society that is plurally diverse as India. It is important to note that Article 44 is a part of the Directive Principles of State policy enshrined in Part IV of the Constitution and hence cannot be enforced by a court of law. Nonetheless, Article 37 states that these directive principles are fundamental in governance and hence, must be used by the state in making laws.[iii]
The Supreme Court in fact, has given its assent to the implementation of the Code and has criticized the government for not doing so on a host of occasions in the recent past. Perhaps, the most controversial of these remarks by the Apex Court has been during the deciding of the Shah Bano case. The Court in the landmark decision held that a Muslim woman could obtain maintenance under Section 125 of the Code of Criminal Procedure. This decision by the Court was vehemently opposed by the Legislature who passed the Women’s Right on Divorce Act, 1986 thereby negating the judgement in Shah Bano.[iv] Nevertheless, the Court in Sarla Mudgal and John Vallamattom reiterated its support for a Uniform Civil Code.[v]
The primary argument of the critics of the UCC is that the Code, if implemented, severely challenges the secular nature of the Indian Constitution. The heart of this argument lies in Article 25, a fundamental right, which stipulates for a “freedom of conscience and free profession, of religion”. The Supreme Court has dealt with this issue in Griha Kalyan Kendra Workers v. Union of India[vi] and other decisions where it has stated that the Fundamental Rights must be adjusted according to the Directive Principles in case of a clash. But, it is perhaps important for the Court to treat this as a special case and inspect it with more depth. It is a well – established fact that there exist a plethora of ethnic, religious and linguistic groups in India. These groups have different traditions and cultures associated with them. Bringing in a law to completely erase these norms overnight might prove disastrous economically, culturally, politically and socially for Indian society.
The argument stated above is the line of thought adopted by Political Scientist, Rajeev Bhargava in his essay on Secularism.[vii] Bhargava compares the American, French and Indian model of secularism and says that the Indian model is not compatible with the other two simply because of the diversity in our demographic. He goes on to laud the present form of secularism in India as it allows every citizen to display a core part of their identity at will. A Uniform Civil Code then, critics might say, will essentially allow for the erasing of a core part of the identity of a certain demographic and substitute it with something that the said demographic never wanted. This clash in identity might trigger unrest in both political and civil society.
The advocates for the UCC point out to the measure of equality that will be achieved on uniform application of law. One method of bridging the gap between the law and society in such a case, according to them, would be to make the law an optional one for a given period of time in order to let society to come to terms with it and then make it a permanent one.
In conclusion, the Uniform Civil Code is at least; legally tenable and applying it would have wide – ranging effects on India. On one hand, personal laws would be unified making the application of the law much easier and arguably place everyone on a level playing ground. Alternatively, if the minorities sense a loss in identity due to application of such a law, then there will be a rise in tension between the minorities and the state.
[i] D. Roy, 'If Parliament Doesn’t Bring Uniform Civil Code, Judiciary Should. India is Ready', NEWS 18, (May 29, 2017). Retrieved July 16, 2017, from http://www.news18.com/news/india/if-parliament-doesnt-bring-uniform-civil-code-judiciary-should-india-is-ready-1414997.html
[iii] Shabeer Ahmed, “Uniform Civil Code (Article 44 Of The Constitution) A Dead Letter.” The Indian Journal of Political Science, vol. 67, no. 3, 2006, pp. 545–552. JSTOR, www.jstor.org/stable/41856241.
[v] Supra, note 4.
[vi] 1991 SCR (1) 15.
[vii] Rajeev Bhargava, ‘State and Religious Diversity: Can Something Be Learnt from the Indian Model of Secularism?’ (Feb, 2014). Robert Schuman Centre for Advanced Studies Research Paper No. PP 2014/03. Available at SSRN: https://ssrn.com/abstract=2393355 or http://dx.doi.org/10.2139/ssrn.2393355
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