Despite the 21st Law Commission’s paper on Uniform Civil Code in August 2018, the Law Commission on June 14, 2023 has decided to look at the need for a Uniform Civil Code (UCC) afresh and seek the views of various stakeholders, including members of the public and religious organisations.
At Para 1.15 of the 182-page report of the 21st Law Commission titled ‘Consultation Paper on Reform of Family Law’, the commission noted, “While diversity of Indian culture can and should be celebrated, specific groups, or weaker sections of society must not be dis-privileged in the process. Resolution of this conflict does not mean abolition of all differences. This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.” However, the commission suggested for certain measures to be adopted in marriage and divorce that should be uniformly accepted in the personal laws of all religions.
Prior to the move of the 22nd Law Commission to relook at the need for a UCC, the Governments of Gujarat and Uttarakhand had decided to set up committees for their States for the purpose of introducing UCC and the same were assailed before the Supreme Court through a PIL which was junked by the court. In this case the Bench comprising Chief Justice DY Chandrachud and Justice PS Narasimha were of the view that the UCC cannot be challenged as ultra vires the Constitution since it is within the executive powers of the state under Article 162. The CJI remarked, “What is wrong with it? They have constituted a committee under their executive powers under Article 162…..,”.
The Bench further remarked, “Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law” and these are under Entry 5 of the Concurrent List and, therefore, both Centre and States can legislate on the subjects mentioned in the Concurrent List. The PIL was filed before the Supreme Court as Gujarat Home Minister Harsh Sanghvi made it public on October 29, 2022, that the State Cabinet has decided to form a committee for the implementation of a UCC in the State.
Previously, the Uttarakhand Government had constituted a committee of experts to prepare a report on implementation of UCC in the State. As the State Government intended to “examine the relevant laws regulating personal civil matters of residents and to prepare draft law/laws or suggest changes in existing laws on the subject that includes marriage, divorce, property rights, succession/inheritance, adoption, maintenance, custody and guardianship”.
While submitting its views in the context of the PIL before the Supreme Court in October last year, the Centre contended that the Constitution provides for and obligates the state to have UCC for citizens and that the citizens belonging to different religions following different property and matrimonial laws “is an affront to the nation’s unity” and then the Centre had already made its intent clear to place the matter before the 22nd Law Commission.
Apart from this, a private member's Bill seeking a panel on UCC was introduced in Rajya Sabha late last year and this led to the Upper House entering into a state of pandemonium.
Under Article 44 of the Constitution, it is provided, “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. The UCC intends to “formulate and implement personal laws of the citizens which will be applicable to every Indian irrespective caste, religion and sexual orientation.” This clearly means that all personal matters such as marriage, divorce, adoption, inheritance and succession will be dealt with uniformly for all persons.
Last year, the Allahabad High Court also termed UCC as a “necessity” and said it was “mandatorily required today” to protect interfaith couples from being “hounded as criminals”. The court’s remarks came while hearing a batch of petitions moved by interfaith couples seeking protection.
The critics of UCC term the code as ‘anti-minority’ and against the ‘values of unity in diversity’. However, the idea behind UCC is to end the discrimination against vulnerable groups and establish a state of harmony across diverse cultural groups. In this context, Dr BR Ambedkar had remarked, “A UCC is desirable but for the moment it should remain voluntary”, which led to the Article 35 of the draft Constitution to become part of the Directive Principles of the State Policy in part IV of the Constitution as Article 44. It was wisely added in the Constitution with the sole intention that it would be implemented when the nation would be prepared to accept it.
The UCC has its roots in the colonial India when the British Government in its report in the year 1835 emphasised the need for a uniformly-codified Indian law relating to crimes, evidence and contracts. However at that time, the personal laws of Hindus and Muslims were exempted from such codification.
Subsequently, the BN Rau Committee was formed by the British Government to codify the Hindu law in 1941. The committee, also known as the Hindu Law Committee, examined the question of the necessity of common Hindu laws from the perspective of scriptures and recommended a codified Hindu law, which gave equal rights to women. Subsequently, the 1937 Act was reviewed and the committee recommended a civil code of marriage and succession for Hindus.
After a lot of uproar, the Hindu Code Bill was adopted in 1956 as the Hindu Succession Act to amend and codify the law relating to unwilled succession among Hindus, Buddhists, Jains and Sikhs.
The State of Goa, so far, remains the only State having a functional UCC and the Supreme Court in 2019 hailed Goa as a “shining example”. Besides, the Supreme Court in various previous judgements has urged for implementation of the UCC like in the Shah Bano Begum judgement (1985), Paulo Coutinho Vs Maria Luiza Valentina Pereira case (2019) and Sarla Mudgal (1995).
In the event of enactment of UCC, all personal laws will be amalgamated in one UCC, which in essence will do away with all gender biases and discriminatory practices under the existing personal laws. The UCC can, therefore, pass the test of Constitutionality on the touchstone of Article 14 (right to equality before law) in particular and the bunch of fundamental rights in general.
But for this, UCC should be seen from the broader spectrum of larger social interest and not from the point of politics and biases motivated by various vested interests. It is, therefore, essential that both government and society should strive towards building mutual trust and confidence in this context.
(The writer is Additional Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)