Recently, the state of Uttarakhand became the first in the country to pass a law to implement the Uniform Civil Code (UCC). This topic has generated impassioned debates, divided opinions, and sparked tensions. It promises to continue to shape India’s political discourse in the foreseeable future.
However, the question is whether it be followed by a Parliamentary law on the subject which was specifically included in the ruling Bharatiya Janata Party’s (BJP) manifesto for the 2024 Lok Sabha elections. This is not a new debate as the idea for creating UCC is over a 180 years old and has been debated and discussed widely, albeit intermittently, in public and political discourses ever since.
Article 44 of the Constitution of India lists Uniform Civil Code as one of the Directive Principles of State Policy. The proponents of the idea believe that UCC shall engender gender equality, especially amongst the Muslim community, drawing upon the best traditions and harmonizing them with the modern times.
Therefore, this seems to be an opportune moment for the government to address the long-pending matter of UCC. A careful look at the manner in which the issue of the UCC evolved in India will be fruitful for all of us and shall assist us in arriving at a better understanding of the complex issues involved.
Background
The Second Law Commission, constituted by the British Government, which submitted its report in 1835, stressed the need for uniformity in the codification of Indian law relating to crimes, evidences and contracts. However, it specifically recommended that the Personal Laws of Hindus and Muslims should be kept outside such codification. The Commission, inter alia, recommended that codification should not extend to matters like the personal laws of the Hindus and Mohammedans which derived their authority from their respective religions.
The Report was informed by the views of J.H. Harington, member of the Viceroy’s Council in Bengal, who argued against a more general application of British laws to the inhabitants of the country. The conscious decision taken by the 1835 Report was to separate the Personal Laws of various religions and communities of India and keep them out of the proposed codification. Ultimately, this was reflected in Queen Victoria’s Proclamation of 1858 – issued when the British government took over the sovereign power of the administration of the country after displacing the East India Company in the wake of the 1857 revolt – promising absolute non-interference in religious matters.
This specifically meant the clear separation of the two spheres of law. The public sphere, governed by the British and Anglo-Indian law, in crime, land relations, laws of contract and evidence, which applied equally to every citizen irrespective of religion; and the personal laws of the people on matters such as inheritance, succession, marriage, religious ceremonies and so on.
Three contextual issues
There are three broad issues that require analysis. One, it could be argued that it was probably wise in 1858 for a foreign colonial power to stay clear of the dangers of dabbling in areas related to religion and personal custom in the overall interest of maintaining peace and tranquility in the nation. Two, it is not only non-Hindus who may have severe objections to the promulgation of a law that will govern their most inherent beliefs and faith as well as customs and practices. And three, in favor of the UCC, were the arguments for reform of Hindu laws.
The question remains to this day – why was the personal law of the Hindus alone being codified and why a uniform code for the entire populace was not being attempted by the framers of the Constitution? G.R. Rajagopal, himself a witness to the developments of those momentous days, as a member of a “small committee” set up by Ambedkar “to examine” the Hindu Code Bill when it was pending in the Constituent Assembly in 1948, attempts an answer:
“…it was felt that an attempt should be made to codify the Hindu law and if this succeeded, and of the measures produced thereby had in themselves intrinsic merits commending them for universal application, the time would not be far off when other communities might like to follow suit and ask for reconsideration of their own law in the light of changed situations.”
It was a pious hope, but that one that did not materialize.
The Hindu Code that had been prepared in this context had the stamp of Ambedkar who, as a radical thinker, had criticized the Hindu law on many an occasion. The draft Hindu Code Bill received much criticism and the issues that were opposed pertained to monogamy, divorce, abolition of coparcenary (women inheriting a shared title), and inheritance to daughters. Dr. Rajendra Prasad opposed these reforms with a few senior members and Hindu fundamentalist parties. A section called it “anti-Hindu” and “anti-Indian”. In order to stall the proceedings, they demanded that UCC be applicable to all religions and not only for the Hindu.
In fact, the opposition to the Hindu Code Bill, in the form presented to the Parliament, came from an array of members representing various factions of the Hindu majority and others within and without the Parliament. As mentioned above, the most important of them were veterans like Vallabhbhai Patel, Dr. Rajendra Prasad, and J.B. Kripalani who had a completely different worldview from Nehru’s. Dr. Rajendra Prasad even threatened to refuse Presidential assent to the Bills. Patel concurred in private but was disinclined to argue with Nehru. Some shed light on how the UCC came into the political narrative, and why and how Ambedkar responded to this move for a common code:
“By using inverse logic the Mahasabha leaders tried to suggest that the Hindu Code was, after all, a communal measure and a uniform Civil Code should have been made instead, to give effect to the secular ideals of the country. The motives of the Mahasabha, however, were betrayed when Dr. Shyama Prasad Mukherjee made the suggestion that the Hindu Code be optional. Ambedkar was provoked into dismissing S. P. Mukherjee’s remarks as not worth serious consideration since he had after all, as member of Nehru’s Cabinet, whole-heartedly supported the Code which he was now opposing.”
Some also give details of the other groups that opposed the Hindu Code: the Sikh group “who resented being clubbed with the Hindus” and feared that the Code would be an attempt to absorb them into the Hindu fold.
Ultimately, therefore, an abridged and diluted version of this Bill was passed by the Parliament in 1956, which while excluding non-Hindus from the ambit of the reform, brought into the statute books four separate Acts, namely the Hindu Marriage Act, the Hindu Succession Act, Minority and Guardianship Act, and the Adoptions and Maintenance Act.
Judicial Discourse
In the case of Mohammad Ahmed Khan v. Shah Bano Begum (1985) popularly known as Shah Bano case, the Supreme Court observed that it is a matter of regret that Article 44 of our Constitution has remained a dead letter. Though this decision was highly criticized by the Muslim fundamentalists, yet it was considered as a liberal interpretation of law as required by gender justice. Then in Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and Others (2000), the Apex Court while delivering the judgment directed the Government to implement the directive of Article 44 and to file an affidavit indicating the steps taken in the matter and opined that “Successive governments have been wholly remiss in their duty of implementing the Constitutional mandate under Article 44.”
Subsequently, the Apex Court in Lily Thomas etc. v. Union of India and others (2000) held that the desirability of UCC can hardly be doubted. But it can concretize only when social climate is properly built up by the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change for the betterment of the nation at large.
The situation regarding the personal laws for Christians in India was different. In their case, the courts seemed to be bolder and took a progressive stand in terms of gender equality. For instance, in the case of Swapana Ghosh v. Sadananda Ghosh (1989), the Calcutta High Court expressed the view that sections 10 and 17 of the Indian Divorce Act, 1869, should be declared unconstitutional, however, nothing happened till 1995.
The Law Commission of India and the Supreme Court have recommended that the irretrievable break down of marriage should be made a separate ground of divorce by the legislature. No useful purpose would be served by keeping alive de jure what is dead de facto. It is possible that if Parliament does not act on this recommendation the legislature of some states of India may take the lead, exercising power under entry 5 of the concurrent list of the 7th schedule. The Law Commission has suggested that immediate action needs to be taken to introduce an amendment in the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954 for the inclusion of irretrievable breakdown of marriage as another ground for grant of divorce.
The Indian Context
Under a common civil code, one law would govern all divorces for all communities based on religion. One should not forget that nationhood is symbolized by one Constitution, a single citizenship, one flag, and a common law applicable to all citizens. Moreover, India’s obligations under international law and requirements of various international instruments relating to the human rights of women such as the Universal Declaration of Human Rights, 1948, and the Convention on the Elimination of all Forms of Discrimination Against Women, 1979 also demand that even if one rules out Article 44, the Union of India cannot evade its international obligation to make laws to remove discrimination against women.
A glimpse of the international landscape reveals that there are only a few countries where common civil laws do not exist. As we have seen, in India, the nature of the structured and layered social formations, the hierarchies approved and mandated by religion and tradition which have existed for several millennia, complicates the social fabric in more ways than can be deciphered.
In India, the complex mosaic of these overlapping personal, social, local, and community traditions and practices makes the task of implementing the UCC difficult. Yet, if we are to move on to a truly unified country that treats all its citizens with dignity, respect, and equity while protecting the diversity and cultural practices of each community, which do not militate against the basic principles of our Constitution. Thus, the combined effect of repeated exhortations of the Supreme Court, the mandate of Article 44, and the political convictions of the BJP government leads us to believe that the UCC law in Uttarakhand may just be the beginning.
The writer is Professor and In-charge, Dr. Ambedkar Chair of Legal Studies and Research, Aligarh Muslim University. Views are personal.
