At the time of India’s independence, when the framing of the Indian Constitution was underway, India’s political leadership recognised the need for a Uniform Civil Code (UCC) to achieve an egalitarian society. However, the implementation was held back because the situation did not seem conducive for the application of the Code on account of palpability of two nation creation, refugee exodus and cross border religious sensitivity.
The UCC calls for the formulation of a singular law across the nation, which would be applicable to all religious communities in matters of marriage, divorce, inheritance, and adoption. The Code is placed under Article 44 of the Directive Principles of State Policy (DPSP) in the Constitution, which lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
In an order dated July 7, 2021, Justice Pratibha Singh said that the modern Indian society is becoming homogenous and hence UCC “ought not to remain a mere hope”. The various high courts have time and again backed the formation of a UCC in India, once while dealing with a case on whether the marriage between the parties who belonged to the Meena community were excluded from the ambit of the Hindu Marriage Act, 1955 (HMA). During the session, the High Court referred to multiple decisions and remarks made by the Supreme Court on the need for UCC, including the Shah Bano case of 1985.
While the Supreme Court has made peripheral remarks on the need for UCC numerous times in the past, there have been no binding orders on the issue by the court. The Supreme Court. missed the opportunity when it outlawed Triple Talaq without addressing the core issue of whether personal laws should prevail over fundamental rights of life, dignity and non-discrimination.
Previously, in the case of Sarla Mudgal, President, Kalyani, and others versus Union of India and others, the Supreme Court urged the government to secure a UCC based on the model of the Hindu Code to protect the abused and achieving national solidarity. The cases of Lily Thomas versus Union of India and ABC v. The State (NCT of Delhi) were also dealt with in the similar vein. While in the former, the Supreme Court emphasised the significance of UCC in terms of succession, and in the latter, it held that a single mother of the Christian religion was eligible to apply for sole guardianship of her child without the assent of the natural father under the Guardian and Wards Act, 1890 that had not recognised the right of Christian single mothers. In this context, the court pointed out the inconvenience caused in the absence of a uniform civil code.
However, since the debates on UCC have resurfaced, it is crucial to assess what the desired model of UCC might intend to bring about. The current ruling party has time and again stressed upon its desire to implement the UCC.
The Kashmir imbroglio over the decades was a stumbling block to UCC as it was perceived that the implementation of UCC may lead to both ethnic and religious disturbances across the nation. In 1998, former Prime Minister A. B. Vajpayee also evinced his interest in implementing the UCC by including it in his manifesto. However, the sensitive political atmosphere that ensued after the Babri Masjid demolition did not allow him enough space to undertake the implementation of UCC.
Since 1997, the Bharatiya Janata Party has been holding up Goa’s Civil Code as a model to be implemented across the country. In March 2021, amidst an ongoing debate on UCC, Justice S. A. Bobde also hailed Goa’s Uniform Civil Code, while claiming that Goa’s UCC was the Code that India’s Constitution framers had envisioned for the entire country. On the same occasion, Justice N. V. Ramana pointed out the need for modernisation of judicial infrastructure in India and called for setting up a National Judicial Infrastructure Corporation as a one-time measure to settle this issue.
Furthermore, implementing the UCC, in a country like ours can contribute significantly towards the Sustainable Development Goals (SDGs) adopted by the United Nations. These are a comprehensive set of goals aimed at achieving sustainable development across economic, social, and environmental dimensions. By promoting ideals of equality, social justice, gender equality, social cohesion, modernization, legal efficiency, and inclusive governance, the UCC can facilitate the creation of a more inclusive, harmonious, and progressive society. As India walks towards the attainment of SDGs, a UCC could serve as a catalyst for positive change, fostering a more equitable and sustainable future.
UCC in India has a profound effect on gender equality and empowerment by establishing equal rights and opportunities for women. By implementing the UCC, a uniform set of laws would be established, upholding the principles of gender equality. Women would be granted equal rights and opportunities in key aspects such as marriage, divorce, inheritance, adoption, and property rights. A UCC would help to eliminate the discriminatory practices practiced by many personal laws in India, and thereby ensuring that women are not subjected to arbitrary divorces or denied their rights.
This empowers women and provides them with greater control over their lives and decisions. It is an effective challenge to address these patriarchal structures by promoting gender equality and dismantling discriminatory practices. For example, Muslim and Parsi daughters still do not have the equal right to inheritance. The UCC would attempt to change such situations. The framework of UCC attempts to eliminate inequalities and ensure that every individual enjoys equal rights and opportunities.
Polygamy is a very widespread practice under the Muslim law. Many celebrities have converted to Islam in India to marry more than one woman. One of the major changes which the Muslim law would undergo with the coming of a UCC is that it would lead to the abolition of the practice of polygamy. Polygamy as a practice is generally considered to be a social evil in India. Abolition of such a practice would be a positive betterment to society.
The impact of UCC would lead to a positive influence on the Muslim personal law. It would allow the Muslim women to claim maintenance for her lifetime.
Adoption is being considered to be one of the major issues existing in the country. The personal law of no other religion allows the couples to follow the practice of adoption except the Hindu law. Under the UCC any woman would be allowed to take a child in adoption, irrespective of her religion. Similarly any couple can legally claim the status to be the adoptive parents of the child who is being adopted by them.
The implementation of a UCC can have a significant impact on social cohesion and integration. It serves as a crucial factor in bridging gaps between diverse religious and cultural groups, promoting unity and a shared identity among citizens. This, in turn, contributes to a reduction in communal tensions and conflicts, creating an environment that supports sustainable development. The focus on a UCC stems from the need to address disparities and discriminatory practices that exist in personal laws across different religious communities.
Further, there arises the need for a Uniform Criminal Code (UCrC) due to the existence of diverse criminal laws across states and regions which lead to several inconsistencies. It would eliminate the possibility of varying outcomes for similar offences based on regional disparities, upholding the principle of equal treatment under the law and safeguarding individuals' rights and freedoms. The UCrC eliminates disparities, contradictions, and uncertainties in criminal laws, simplifying their comprehension and application for law enforcement agencies, legal professionals, and individuals. Moreover, a UCrC would streamline the administration of justice by simplifying legal procedures, investigations, prosecutions, and trials. This would result in a more efficient legal system, reducing the burden on its resources and enhancing the delivery of justice.
It is crucial to understand that the emphasis on a UCC does not diminish the significance of a Uniform Criminal Code. The discussions and debates surrounding a UCC and a Uniform Criminal Code are distinct, and the focus and implications of each concept may differ based on the specific legal context and societal considerations. However, the specific attention given to a UCC reflects the need to address existing disparities and discriminatory practices in personal laws and promote gender equality and women's empowerment in the Indian context.
--Ishanee Sharma is an advocate and founder of Ishanee Sharma Law Offices.