Uniform Civil Code (UCC) is a proposal brought by the Government of India with the objective of creating and enforcing personal laws that are equally applicable to all citizens, irrespective of their religion, gender, and sexual orientation.
At present, the personal laws of different communities are governed by their religious texts. The implementation of the Uniform Civil Code across the country has been a contentious issue, with the current ruling Bharatiya Janata Party (BJP) advocating it. However, it remains controversial due to opposition from the political left, Muslim groups, and conservative religious organizations that adhere to Sharia and religious customs.
What is a Uniform Civil Code?
The UCC aims to replace personal laws based on religious customs and traditions with a common set of laws governing matters such as marriage, divorce, inheritance, and adoption for all citizens of India, regardless of their religion.
Historical Background of Uniform Civil Code (UCC)
The concept of personal laws in India dates back to the British Raj when they were first created for Hindu and Muslim citizens. Fearing opposition from some community leaders, the British government refrained from further intervention in India.
The state of Goa, which was under Portuguese colonial rule, retained a common family law known as the Goa Civil Code and remains the only state in India with a Uniform Civil Code to date.
After India gained independence, the Hindu Code Bill was introduced to codify and reform personal laws among Indian religions such as Buddhism, Hinduism, Jainism, and Sikhism. However, Christians, Jews, Muslims, and Parsis were exempted from these reforms as they were recognized as separate communities from Hindus.
The Emergence of UCC as an Important Subject
The UCC gained significant attention in Indian politics in 1985 following the Shah Bano case. The debate centered on the question of making certain laws applicable to all citizens without abrogating the fundamental right to practice religion. Attention turned to Muslim personal law, which is partly based on Sharia law and allows for unilateral divorce and polygamy.
The issue was raised regarding the legal application of Sharia law. The UCC has been proposed twice, in November 2019 and March 2020, but was later withdrawn without being tabled in Parliament. Reports suggest that the bill is currently being considered due to emerging differences between the BJP and the Rashtriya Swayamsevak Sangh (RSS).
The historical context of the Uniform Civil Code debate in India Colonial India (British India 1858–1947)
The implementation of the Uniform Civil Code in India has a long history of controversy and debate, which has its roots in the colonial era of British India when India was a slave of the British. The British, through their rule, tried to reform the local social and religious customs by imposing Western ideologies on the country.
British India and divide and rule policy
During the rule of the East India Company (1757–1858), the British recognized the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts. However, the Lex Loci Report of October 1840 recommended the personal laws of Hindus and Muslims be excluded from such codification.
Separation of Hindus and Muslims before the law was a deliberate strategy adopted by the British Empire as part of its divide-and-rule policy. By dividing the communities and governing them based on their religious texts and customs, the British tried to weaken unity among the various groups and maintain strong control over India. The personal laws of various communities, including Hindus, Muslims, Christians, and Parsis, were applied in civil disputes by local courts or panchayats, with the state intervening only in exceptional cases.
Change in priority for laws
Throughout India, the priority of ancient customary or customary law varied, as conflicts arose between the two within some Hindu and Muslim communities, such as the Jats and the Dravidians. For example, Shudras permitted widow remarriage, which was against classical Hindu law.
Hindu laws were often preferred due to the relative ease of implementation, the preference for the Brahminical system by British and Indian judges, and the fear of opposition from upper-caste Hindus. The complexity of examining and implementing customary laws on a case-by-case basis has made their enforcement more challenging. In the late nineteenth century, there was increasing recognition of individual customs and traditions in favor of local opinion.
Muslim personal law and lack of uniformity
Muslim personal law based on Sharia law was implemented in different ways in different parts of India. Due to the diverse local cultures of Muslims across the country, there was a lack of uniformity in its application among the lower courts. Even when communities converted to Islam, their local indigenous culture continued to influence the customs of their religion, resulting in the non-uniform application of Sharia law. As a result, customary laws, which were often more discriminatory towards women, came into force.
In northern and western India, women were often denied property inheritance and a share of the dowry that is provided for under Sharia law. Under pressure from the Muslim elite, the Shariat Act of 1937 was passed, which stated that all Indian Muslims would be guided by Islamic laws relating to marriage, divorce, maintenance, adoption, succession, and inheritance.
Different laws for different religions
As a result, Hindus were subject to the Hindu Code Bill, while Muslims and followers of other religions were given the freedom to follow their respective laws. The All India Muslim Personal Law Board, a private body, has the authority to make laws imposing religious rules on Muslims.
Legislative Reforms: Promoting Gender Equality and Women’s Rights
Legislative reforms in India have played a significant role in addressing gender inequalities and promoting women’s rights. These reforms aimed to challenge discriminatory provisions in Sharia law and some Hindu customs that disadvantaged women, such as inheritance restrictions, denial of remarriage, and limited divorce rights. Prominent reformers including Ishwar Chandra Vidyasagar worked tirelessly to pass laws protecting the interests of women through the legislative process.
Reforms for Hindu women
Reforms were introduced to benefit Hindu women and ensure their rights and security. Acts such as the Hindu Widow Remarriage Act of 1856, the Married Women’s Property Act of 1923, and the Hindu Inheritance (Prevention of Disability) Act of 1928 were instrumental in empowering Hindu women and giving them property rights.
These measures were intended to rectify historical injustices and provide legal protection for Hindu women. However, these protections were not extended to Muslim women due to opposition from conservative Muslim groups advocating the observance of Sharia law.
Challenges Faced and Call for Uniform Civil Code
During this period, the demand for equal rights for women in India was emerging. However, the reluctance of the British government to implement comprehensive reforms further hindered progress. The All India Women’s Conference (AIWC) expressed disappointment over the male-dominated legislature, highlighting the hurdles faced by women seeking divorce through courts.
AIWC conferences, such as the 1933 speech by Lakshmi Menon, underlined the need for drastic changes that benefited women. The AIWC sought the establishment of a Uniform Civil Code, based on the resolution of the Karachi Congress, that guaranteed gender equality.
Constitution of Committees and Recommendations
The passage of the Hindu Women’s Property Rights Act of 1937, known as the Deshmukh Bill, led B.N. Paved the way for the formation of the Rau committee. This committee was tasked with assessing the need for common Hindu laws and concluded that the time had come to enact a Uniform Civil Code.
The committee focused primarily on reforming Hindu law but recognized the importance of wider changes. In 1944, the committee was reconstituted and submitted its report to the Indian Parliament in 1947, recommending a civil code for marriage and succession.
Special Marriage Act and its amendments
The Special Marriage Act, initially enacted in 1872, provided an alternative to civil marriage. However, its limited application required the individuals involved to renounce their religion, which primarily affected non-Hindus. In 1923, the Special Marriage (Amendment) Act expanded the scope of the law, allowing Hindus, Buddhists, Sikhs, and Jains to marry under their personal laws or the Act without giving up their religion.
This amendment ensured that individuals could retain their religious identity while exercising their rights under the Act, including succession rights.
Post-colonial era (1947–1985): Hindu Code Bill and additions to the Directive Principles
India’s post-colonial era, from 1947 to 1985, saw significant legislative developments regarding gender equality and women’s rights. One of the important aspects was the Hindu Code Bill, which aimed to reform Hindu personal laws.
Additionally, the issue of the Uniform Civil Code was addressed by the incorporation of Directive Principles in the Indian Constitution. The passing of the Special Marriage Act also played a significant role in providing civil marriage options regardless of religion.
Hindu Code Bill and Nehru Administration
During the parliamentary sessions of 1948–1951 and 1951–1954, the report of the Hindu Law Committee was discussed in the Indian Parliament. Prime Minister Jawaharlal Nehru, along with his supporters and women members, advocated the introduction of a Uniform Civil Code.
As Law Minister B. R. Ambedkar presented the details of the Bill. It was observed that orthodox Hindu laws already contained provisions supporting women’s rights, such as the right to monogamy, divorce, and the right of a widow to inherit property. Ambedkar recommended the adoption of a Uniform Civil Code. However, he faced severe criticism in Parliament and eventually resigned due to the protests.
Hindu code bill and support withdrawal
After Ambedkar’s resignation, the Nehru administration took the lead in passing the Hindu Code Bill to modernize Indian society. However, the bill faced significant criticism, particularly relating to provisions relating to the abolition of monogamy, divorce, coparcenary, and succession to daughters.
Surprisingly, women members of Parliament, who had initially supported the Bill, reversed their position. They feared that joining forces with radicals would further undermine women’s rights.
As a result, a nuanced version of the bill was passed in 1956, consisting of four separate Acts: the Hindu Marriage Act, the Succession Act, the Minority and Guardianship Act, and the Adoption and Maintenance Act.
Directive Principles and Uniform Civil Code
The passage of the Hindu Code Bill contradicts the implementation of the Uniform Civil Code, as envisaged in Article 44 of the Directive Principles of the Constitution. The objective of the Directive Principles was to secure a Uniform Civil Code for Indian citizens.
However, women members such as Rajkumari Amrit Kaur and Hansa Mehta opposed the diluted version of the bill, suggesting that the state deliberately refrained from addressing the issue. Scholars such as Paula Banerjee argue that the failure to provide a Uniform Civil Code reflects the accommodation of traditional patriarchal interests by the modern Indian state.
Special Marriage Act and its importance
The Hindu Code Bill failed to effectively address the gender discrimination prevalent in society. Divorce laws, though created to provide an equal voice to both partners, were primarily initiated by men. Furthermore, the Act applied only to Hindus, leaving other communities, especially women from communities governed by Sharia law, under it.
Recognizing the bill’s limitations, Nehru considered it an “outstanding achievement”, but acknowledged it lacked significant reforms. While Nehru supported the Uniform Civil Code, he faced opposition from conservative groups. As a result, his support for a Uniform Civil Code was incorporated into the Directive Principles of the Constitution rather than being implemented directly.
To provide a secular marriage option regardless of religion, the Special Marriage Act of 1954 was enacted. The act allowed any citizen, regardless of their religion, to enter into a civil marriage outside the purview of specific religious personal laws. The Special Marriage Act applies to the whole of India except Jammu and Kashmir and provides protections similar to the Hindu Marriage Act of 1955.
Muslims can also marry under this Act, benefiting from the safeguards generally beneficial to Muslim women under Muslim personal law. The Special Marriage Act outlawed polygamy and governed inheritance, succession, divorce, and maintenance on the basis of secular laws rather than religious personal laws.
Significance of the Special Marriage Act
The Special Marriage Act played a crucial role in providing significant protections to religious minorities that were not available under their respective Personal Laws. It allowed individuals from different religions to marry and retain their legal rights without being bound by the restrictions of their religious laws. For Muslim women, in particular, the act provided safeguards and rights that were often denied under the Muslim Personal Law.
By opting for a civil marriage under the Special Marriage Act, couples could enjoy the benefits of a secular legal framework. Polygamy was prohibited, ensuring monogamy and equal treatment of spouses. Inheritance and succession matters were governed by the Indian Succession Act, ensuring equal rights for both men and women. Divorce procedures were conducted under secular laws, providing fair and equitable processes for both parties. Additionally, maintenance for divorced wives was determined based on civil law provisions.
Significance of the Shah Bano Case
The Shah Bano case, which emerged in 1985, held great significance in the ongoing debate between secular and religious authorities regarding the implementation of a uniform civil code in India. The case revolved around Shah Bano, a 73-year-old woman who sought maintenance from her husband after being divorced through triple talaq, a practice that discriminates against women and is allowed under the Muslim Personal Law.
Initially, a local court granted Shah Bano maintenance in 1980. However, her husband, Muhammad Ahmad Khan, a lawyer himself, challenged the decision in the Supreme Court, arguing that he had fulfilled his obligations under Islamic law. In a landmark ruling, the Supreme Court favored Shah Bano in 1985, invoking the “maintenance of wives, children, and parents” provision (Section 125) of the All India Criminal Code, which applied to all citizens regardless of their religion. The court also recommended the implementation of a uniform civil code.
The Shah Bano case sparked nationwide political controversy and extensive debates. Progressive Indians, as well as progressive Muslim women, supported the Supreme Court’s judgment as it provided support and protection to women. On the other hand, the All India Muslim Board defended the application of Muslim Personal Law based on Sharia Law, which denied divorced Muslim women the right to alimony. The judgment of the Supreme Court was viewed by conservative Muslims as an attack on Muslim Personal Law.
The case had far-reaching implications in the political arena. Rajiv Gandhi’s Congress government, previously supported by Muslim minorities, faced backlash and lost local elections in December 1985 due to its endorsement of the Supreme Court’s decision. The Muslim Board, including Khan, initiated a campaign for complete autonomy in their personal laws, which gained national attention as they consulted legislators, ministers, and journalists. The media also played a significant role in sensationalizing the incident.
In response to the controversy, an independent Muslim parliament member proposed the Muslim Women (Protection of Rights of Divorce) Bill in 1986. The bill aimed to exempt Muslim women from the applicability of Section 125 of the Criminal Procedure Code, effectively reversing the Supreme Court’s judgment. It also sought to legislate that alimony be paid by a Muslim man only for a period of 90 days after divorce.
Despite earlier opposition, the Indian National Congress, led by Rajiv Gandhi, changed its stance and supported the bill following their electoral defeat. Liberal groups, women’s organizations, and the Left strongly opposed the bill. Consequently, the Muslim Women’s (Protection of Rights on Divorce) Act was passed in 1986, making Section 125 of the Criminal Procedure Code inapplicable to Muslim women. This reversal was a significant setback for liberal movements and the protection of women’s rights in Indian society.
The politicization of the Shah Bano case led to a polarized debate between the Congress party, Muslim conservatives, and liberal groups, women’s organizations, and the Left. Women activists highlighted the domination of religious laws over secular or uniform civil laws, emphasizing the need for legal reforms. The legal reversal in favor of the Muslim Women’s Act had a detrimental impact on the nationwide women’s movement during the 1980s.
Current Status and Opinions on Uniform Civil Code (UCC)
Definition of the Proposal
The Uniform Civil Code (UCC) is a proposed law that aims to replace the existing diverse personal laws governing different religious communities in India. Currently, laws such as the Hindu Marriage Act, Hindu Succession Act, Indian Christian Marriages Act, Indian Divorce Act, and Parsi Marriage and Divorce Act govern specific communities. However, certain personal laws, like Sharia (Islamic laws), are not codified and are based solely on religious scriptures.
The proposed UCC includes provisions for monogamy, equal rights for sons and daughters in inheriting paternal property, and gender and religion-neutral laws related to wills, charity, guardianship, and custody. These laws may not significantly impact Hindu society, as similar provisions have already been applicable to Hindus through the Hindu Code Bills for several decades.
Points of View
India is a “secular” nation, which means there is a separation between religion and state matters. In the Indian context, secularism implies equality for all religions and their practitioners before the law. Currently, due to the existence of different civil codes, citizens are treated differently based on their religion. Women’s rights groups argue that this issue is primarily about women’s rights and security, regardless of the sensationalism created by religious conservatives.
Supporters of UCC argue that it aligns with Article 44 of the Indian Constitution, strengthens the unity and integrity of the country, rejects differential laws for different communities, promotes gender equality, and reforms archaic personal laws, particularly those governing Muslims that allow unilateral divorce and polygamy. They emphasize that India is among the nations that legally apply Sharia law and that the Muslim Personal Laws are more “Anglo-Mohammadan” than purely Islamic. Hindu nationalists perceive the UCC as a secular law that ensures equality for both sexes.
However, demands for a uniform civil code can be viewed negatively by religious authorities and some sections of secular society due to concerns related to identity politics. The Sangh Parivar and the Bharatiya Janata Party (BJP), one of the major political parties in India, have taken up this issue to advocate for equal treatment of all citizens before the law. The BJP was the first party to promise the implementation of UCC if elected into power.
Goa, as an exception, abides by the Goa Civil Code, which is a set of civil laws originally based on the Portuguese Civil Code and continued to be implemented after Goa’s annexation by India in 1961. Sikhs and Buddhists have objected to being termed as Hindus under Article 25, as it applies personal laws to them. This article guarantees the right of members of the Sikh faith to bear a Kirpan.
The Current Status and Opposition
In October 2015, the Supreme Court of India emphasized the need for a uniform civil code, stating that allowing every religion to decide various issues as a matter of personal law is not acceptable and should be decided through a court decree. However, since 1950, no significant effort has been made by the government to enact a uniform civil code.
In November 2016, British Indian intellectual Tufail Ahmad presented a 12-point draft document for a uniform civil code, highlighting the lack of government initiatives. The Law Commission of India, in its 185-page consultation paper released on August 31, 2018, stated that a uniform civil code is neither necessary nor desirable at the current stage. It argued that secularism should not contradict the plurality prevalent in the country.
In the pre-independence era, Indian society had various considerations such as socio-economic status, jati, and gotra in marriages. The Hindu code bills eliminated such practices in Hindu, Jain, Sikh, Buddhist, Parsi, and Christian communities.
However, some conservative sections within these communities have been demanding amendments to their respective Marriage Acts. Critics of the UCC continue to oppose it, considering it a threat to religious freedom. They argue that the abolition of religious laws goes against the principles of secularism and view the UCC as a means for the BJP to target Muslims while appearing progressive.
On the other hand, supporters of the UCC maintain that its implementation would promote religious equality and equal rights for women by moving away from religious-based laws. They argue that a uniform civil code would foster a sense of unity and ensure equal treatment for all citizens, irrespective of their religious affiliation.
The debate surrounding the UCC is complex and involves considerations of religious freedom, gender equality, and the principles of secularism. The government and various stakeholders continue to hold divergent views on the matter, and further discussions and deliberations are necessary to determine the future of the UCC in India.
Legal status and prospects
The implementation of a Uniform Civil Code (UCC) in India has been a topic of discussion and debate for several years. The Bharatiya Janata Party (BJP) has included the UCC in its election manifestos for the 1998 and 2019 elections, indicating its commitment to the issue. In November 2019, Narayan Lal Panchariya proposed a bill in Parliament to introduce the UCC. However, due to protests by opposition MPs, the bill was withdrawn to make certain amendments. Subsequently, Kirodi Lal Meena brought the bill for a second time in March 2020, but it was not reintroduced.
In 2020, reports emerged suggesting that the UCC was being considered within the BJP, but differences with the Rashtriya Swayamsevak Sangh (RSS) posed challenges to its implementation. The UCC remains a contentious issue with varying opinions within the political sphere.
In April 2021, a plea was filed in the Delhi High Court seeking the establishment of a judicial commission or a high-level expert committee to direct the central government to prepare a draft of the UCC within three months. The intention behind this plea is to ensure consistency throughout India and avoid multiple pleas being filed in different high courts. The proposal suggests that once the draft is prepared, it should be published on a website for a period of 60 days to facilitate extensive public debate and gather feedback.
The legal status and prospects of the UCC remain uncertain, as there are differing views among political parties and stakeholders. The plea filed in the Delhi High Court highlights the ongoing efforts to initiate discussions and involve the public in shaping the future of the UCC in India.