“If a house has one law for one member and another law for another member, can the house run? How will the country run with a dual system? We should remember that the Constitution of India also talks about equal rights of citizens. The Supreme Court has also asked on many occasions to implement the Uniform Civil Code.” – Prime Minister Narendra Modi, Bhopal, June 27, 2023.
The above remarks by the Prime Minister, recently, have reignited the heated debate around the Uniform Civil Code (UCC). As the name suggests, Uniform Civil Code refers to a common code of civil laws which will be applicable uniformly across all religious groups and communities. Presently, various religious communities in India – except for the Hindus – are governed by their own separate personal laws in the domain of civil law, instead of following a common law. In terms of criminal, commercial and administrative laws, however, common laws are uniformly applicable to all citizens, regardless of their religious affiliation.
A few days prior to the comments by the Prime Minister, the 22nd Law Commission, by inviting public comments on the UCC, had set the ball rolling on this issue. Further, the Uttarakhand government has already prepared a draft UCC Bill which is being considered by the central government. Politically too, the Prime Minister, as well as several prominent leaders of the Bhartiya Janata Party (BJP) have laid emphasis on the need to implement the UCC, which has been one of the three core promises in the BJP manifesto over the decades viz. building of Ram temple in Ayodhya, revocation of Article 370 and implementation of the UCC. The last time that the issue of the UCC was debated in the public domain was in 2018 when the Law Commission concluded that then was not the right time to implement the UCC. However, at this point, being the year before the next General Election, the likelihood of the government attempting to pass the UCC Act appears to be strong.
Uniform Civil Code and Personal Laws: Significance and History
Uniform Civil Code has been a deeply contentious issue in India, as its implementation would mean a wiping away of the personal laws governing minority religions. A system of personal laws can be defined as the application of different systems of law within a single polity according to religious or ethnic differentiations. Personal law regimes govern various civil areas like family law (marriage, divorce, adoption, maintenance), laws related to transfer of property (succession, inheritance, wills) and organization of religious establishments.
Colonial State and Personal Laws
In India, the history of personal laws can be traced back to the colonial era. Prior to the advent of the British, Islamic Law, as applied by the Mughals in the areas ruled by them, was the dominant form of law in criminal matters, evidence law and court procedures. In areas where rulers were non-Muslim, Hindu laws prevailed. In civil matters, religious and customary laws were invariably adhered to in almost all parts of the country, even those which were under the Mughal rule. Due to the absence of a uniform legal system and with different systems of religious law being applied under different jurisdictions and conditions, the concept of Personal Law was never defined. It was only with the advent of the modern legal system in the colonial era that Personal Laws – as a separate legal entity – have stood in sharp relief.
The terminology of personal law was used for the first time in the late 18th century in the Presidencies of Calcutta, Bombay and Madras. This was the time when the British East India Company (EIC), victoriously emergent from the 1757 Battle of Plassey and 1764 Battle of Buxar, had controlled the revenue and administrative rights in Bengal. Subsequent to British war victories, they set upon the project of establishing the Adalat system in colonial India. In 1772, the then Governor, Warren Hastings, established the initial stage of the Adalat system in India modelled on the British justice system, which was based on adversarial, common law.
However, the British – alien to Indian culture and languages – were quick to realize that they will not be able to uniformly apply British common law to Indian local conditions. They, therefore, needed to retain the local customs in the form of Personal Laws and they also needed the assistance of Hindu Pandits and Muslim Qazis – the native law officers who were well-versed in personal laws of respective religions – to assist the English courts. They also realized that Personal Laws were not a codified legal system as yet. Thus, even when the application of common law was being administered by the English Adalats, personal laws were considered and interpreted in various ways by the colonial courts, initially with the assistance of native law officers. Indeed, the 1772 Regulation by Hastings and the 1784 Regulation by Cornwallis stipulated the importance of Personal Laws, saying that, in suits regarding marriage, inheritance, caste etc., the laws of Shastra will apply to the Hindus and the laws of Koran will apply to the Muslims.
In the meantime, the British, led by prominent Orientalists like Warren Hastings, William Jones and others, undertook the translations and compilation of Hindu and Muslim legal texts. The services of the native law officers were engaged till 1860. With the rationalization and unification of the judicial system in colonial India, the native law officers were also disbanded. Thus, religion based criminal laws of India were reformed after the 1860 and the implementation of the Law Commission, eventually culminating in the enactment of the Indian Penal Code and the Criminal Procedure Code, both of a secular nature and divorced from religion. On the similar lines were enacted the Evidence Act and the Civil Procedure Code. All religious and customary laws in these areas were repealed and replaced with new codes. However, the British desisted from similarly formulating a Civil Code for India.
Instead, religion-based Personal Laws of Hindus and Muslims continued to be followed and their interpretation, after 1860s, began to be undertaken by English or English-education judges, resulting in a jurisprudence of Anglo-Hindu and Anglo-Muslim Personal Laws, which was substantially different from the original Personal Laws, as it became modified by English process of codification of Personal Laws. Successive judgements led to a codification of religious practices and the English common law doctrine of precedent led to a gradual dilution of the role of religious scholars.
Hindu Versus Muslim Personal Laws in Colonial India
Despite the apparent British policy of non-interference in the religious laws of Hindus and Muslims, there was a wide discrepancy in the way in which the personal laws of the two religions were effectuated. On the one hand, thanks to the alliance between the Indian social reform movement and Christian missionaries, the British administration was forced to bring legislations that substantially modified Hindu Personal Laws, especially after the 1850s. Notable examples include Acts regarding Age of Consent, Sati Prevention Act, 1829; Hindu Widows Remarriage Act, 1856; Caste Disabilities Removal Act 1850; Hindu Disposition of Property Act, 1916; Hindu Women Right to Property Act, 1937 etc. These Acts, among numerous others, considerably made Hindu Personal Laws, more “progressive”.
However, there was no such notable legislation brought in for modifying the Muslim Personal Law. Indeed, the opposite was noticed. The British legal system – of which the Privy Council in England was the highest court – was skewed in favour of maintaining the conservatism of Muslim Personal Laws. In 1866, one of the first steps was taken towards this when the Privy Council upheld the Sharia Law over the local customary law. This attitude greatly appeased the Muslim League. Many of the legislations – such as The Kazis Act 1881; Transfer of Property Act 1882; The Guardians and Wards Act 1890; The Bengal Protection of Mohammadan’s Pilgrim Act 1896 – that were passed pertaining to Muslim social and civil matters sought to reinstate the status quo (as opposed to the reform which was applied to Hindus).
Indeed, the entire thrust of the British judicial system was to heighten and sharpen the Muslim communal identity. The diametrically opposed approaches of reforming Hindu personal laws while maintaining the conservative status quo in Muslim personal laws helped to serve this purpose well. A key legislation in this regard was The Muslim Personal Law (Shariat) Application Act of 1937. Prior to the enactment of this legislation, the Indian Muslims used to follow a complex mixture of local customary law and Islamic law as laid down by the Sharia.
This is highlighted well by Dr. B.R. Ambedkar’s statement in the Constituent Assembly that, “My honourable friends have forgotten, that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession” (Singh, 2023).
It was only with the implementation of the Shariat Act in 1937 that it, thereafter, became mandatory for Muslims to exclusively follow Muslim personal laws in India. This also helped to crystallize a separate Muslim legal identity.
At the outset, the Constitution-makers of Independent India envisaged the implementation of a Uniform Civil Code (UCC). This was to promote the secular ideal of separation between state and religion. The very first debate on UCC in the Constituent Assembly took place on November 23, 1948. At that time, UCC figured under Article 35 of the Constitution. The motion for the implementation of UCC received support from almost the entire Congress and from B.R. Ambedkar. The 15 women members of the Assembly supported the UCC, along with prominent Congress leaders like Nehru, Alladi Krishnaswami Ayyar, Meenu Masani, K.M. Munshi, Sardar Patel, Rajendra Prasad and others.
Some Notable Cases of Discrimination in Muslim Personal Laws:
- The practice of polygamy is permitted under the Muslim personal law. According to the law, a Muslim husband is permitted to have four wives at a time. Quran says: ‘Marry of the women, who seem good to you, two or three or four, if you fear that you cannot do justice to so many, then one (only).’
- Under the same law, while a Muslim man is given unrestricted powers to dissolve a marriage, a Muslim woman has no such rights. She can dissolve her marriage only according to the provisions of Dissolution of Muslim Marriage Act, 1939. A Muslim woman can opt for divorce only when she can support herself or somebody is there to support her. But a Muslim woman can have only one husband. If she contracts a second marriage during the subsistence of the first marriage, then the second marriage is void and she can be punished for bigamy under the Indian Penal Code, 1860.
- A Muslim man can marry a girl of any religion. But a Muslim girl can marry only a Muslim man. If she marries a Hindu, Jew or a Christian man, the marriage is void, according to Muslim personal laws, unless the man converts to Islam.
- The property rights under the Muslim personal laws are also unjust. If a Muslim man dies, and his heirs include both male and female, both will inherit the property simultaneously. But a man’s share of the inheritance is double that of a woman in the same degree of relationship to the deceased.
Source: (Parameswaran, 2020)
It was the Muslim members of the Assembly – Mohammad Ismail, Naziruddin Ahmed, Mehboob Ali Baig, B Pokar Saheb, Ahmed Ibrahim and Maulana Hasrat Mohani – who vociferously opposed the UCC. Even Christian member, Frank Anthony, opposed the UCC. Muslim members of the Assembly, like Naziruddin Ahmed, suggested implementing the UCC with prior approval of the religious communities such that some aspects of personal laws remain untouched. Another member Ismail argued that the right to observe personal laws was a Fundamental Right guaranteed by the freedom to practice religion.
In counter-argument, B.R. Ambedkar contented that, “I think most of my friends who have spoken on this amendment have quite forgotten that up to 1935 the North West Frontier Province was not subject to the Sharia. It followed the Hindu Law in the matter of succession and in other matters, so much so that it was in 1939 that the Central Legislature had to come…And abrogate the application of Hindu Law to Muslims of the North West Frontier Province and to apply the Sharia to them” (Anand, 2021).
Proponents of the UCC in the Constituent Assembly also argued that parallel systems of law would create confusion and that it was necessary to disband the British legacy of personal laws. To this effect, K.M. Munshi argued, “Look at the disadvantages that you will perpetuate if there is no Civil Code. Take for instance the Hindus. We have the law of Mayukha applying in some parts of India, we have Mithakshara in others, and we have the Dayabagha law in Bengal. In this way, even the Hindus themselves have separate laws and most of our provinces and states have started making separate Hindu law for themselves. Are we going to permit this piecemeal legislation on the ground that it affects the personal law of the country? It is therefore not merely a question for minorities, but also affects the majority…This attitude perpetuated under the British rule that personal law is part of religion has been fostered by British courts. We must, therefore, outgrow it” (Anand, 2021).
Further highlighting the absurdity of attributing some kind of sanctity to personal laws, Munshi argued that “If I may just remind the honourable member who spoke last of a particular incident from Fereshta, which comes to my mind, Allauddin Khilji made several changes to the Sharia… The Kazi of Delhi objected to some of his reforms, and his reply was, ‘I am an ignorant man and I am ruling this country in its best interests. I am sure, looking at my ignorance and my good intentions, the Almighty will forgive me, when he finds that I have not acted according to the Sharia’. If Allauddin could not, much less can a modern government accept the proposition that religious rights cover personal law or several other matters which we have been unfortunately trained to consider as part of our religion” (Anand, 2021).
The crux of the debates in the Constituent Assembly which led to uncertainty over the UCC was the already existent personal law regimes of various religions. In the face of the opposition from minority religions, it was not clear how the UCC would be implemented, and whether as part of its implementation, it would replace existing personal law systems or apply alongside some aspects of personal laws. B.R. Ambedkar had, in the course of the debates, suggested a voluntary, gradual approach to the implementation of the UCC, arguing that, “It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage, the application of the Code may be purely voluntary so that the fear which my friends have expressed here will be altogether nullified” (Thakur, 2023).
The result of the Constituent Assembly debates on the UCC, then under Article 35, was that it was adopted with overwhelming majority by the member of the Assembly. Amendments proposed by the minority members of the Assembly to this Article were not accepted. However, it was also felt that – in the wake of the Partition and other challenges faced by the country after Independence – the nation was not yet ready for the UCC. The members, led by Ambedkar, expressed hope that it would be implemented in the future by the Parliament. Therefore, the Article on UCC was moved to Article 44 under Part IV of the Constitution under Directive Principles of States Policy.
UCC in India: A Chequered Journey
In India, Goa is the only state that follows a UCC of its own variety. The Goa Family Law is the set of civil laws, originally the Portuguese Civil Code, which continued to be implemented after its integration with India in 1961. However, in the rest of India, the journey of UCC has been controversial and chequered.
After its relegation to Article 44 of Part IV of the Constitution in the Directive Principles, the UCC did not receive much attention, until, after the 1980s, it was picked up by the Bhartiya Janata Party (BJP) as one of its key promises to the nation, thereby bringing the issue into the political domain and reviving it from being a dead letter of the Constitution. An initial step towards the partial fulfilment of the UCC was taken in the form of the Special Marriage Act, 1954, which allowed civil marriages between individuals belonging to same or different religions. This was followed by the codification of Hindu personal laws under four major codified laws in 1955-56, despite great uproar and intense opposition by the majority Hindu community. In 1955, the Hindu Marriage Act was passed which codified laws relating to marriage among those Indians who were not Christians, Muslims, Jews and Zoroastrians. In 1956, Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoptions and Maintenance Act were enacted to cover the other areas.
Thereafter, the issue of UCC found echoes in prominent case laws. A key case in the Supreme Court relating to the UCC was the famous Shah Bano case of 1985. In 1975, Shah Bano, a Muslim woman, was divorced by her husband, Md. Ahmed Khan, after forty-three years of marriage, through triple talaq. She sued her former husband for not providing her with adequate maintenance after divorce under Section 125 of Code of Criminal Procedure. Section 125 of CrPC laid down that a maximum of Rs. 500 a month should be provided to a former spouse who otherwise would be destitute. However, Khan contended that, under Muslim personal law, he had already paid a lump-sum amount at the time of marriage (mahr) and supported her for three months after divorce (iddat), he was not required to pay any further maintenance.
The Court ruled in favour of Shah Bano, arguing that Section 125 of Code of Criminal Procedure applies to everyone regardless of caste, creed, or religion, and that Section 125 was not incompatible with Muslim personal laws. It, therefore, ruled that Shah Bano be given maintenance money. Regarding UCC, the Court observed that:
It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts, because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.
However, in this case, it was the methodology followed that elicited controversy and led to a nullification of this judgement. Instead of arguing the case on the basis of merit and on the basis of application of uniform law, the Court attempted to interpret Muslim holy texts like Koran and Shariat and thereby argued that, under Islam, a husband cannot discard his wife whenever he chooses to do so without first ensuring that she is financially secure. The Court, thus, took recourse to Islamic arguments instead of balancing general law against personal law and then choosing the former. This led a perception that the Shah Bano judgement marked the beginning of end of personal laws in India. Thereafter, the Muslim lobby forced the Rajiv Gandhi government to pass an Act in 1986 to nullify the Court decision which was given in favour of Shah Bano, and thereby reinstate the supremacy of Muslim personal law.
In contrast, there were two previous judgements before Shah Bano – Bai Tahira v. Ali Husain Fissalli and Fazlunbi v. K. Khader Vali – where the Court upheld the right of Muslim women to receive maintenance beyond the iddat period. These judgements did not elicit any controversy, as the Court was not attempting to base its arguments on interpretation of Islam.
After Shah Bano, the next significant case related to the UCC was the Sarla Mudgal case in 1995. In this case, a Hindu man converted to Islam to solemnize his second marriage. The question in this case was whether the second marriage is valid, without having the first marriage dissolved, thereby enabling the defendant, or accused man to evade Section 494 of the IPC which prohibits bigamy. In its landmark decision, the Court held the second marriage, solemnized after conversion to Islam, to be illegal and void under Section 494 of the IPC. It said that the second marriage was against natural justice.
The judgment also saw strong statements from the Court in favour of a UCC viz. “When more than 80% of the citizens (the Court was referring to Hindus here) have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance the introduction of a uniform civil code.”
In yet another important case, in 2003, John Vallamattom, a Christian priest, challenged the constitutional validity of Section 118 of the Indian Succession Act, 1925, by filing a writ petition (under Article 32 of the Constitution) for the enforcement of his Fundamental Rights. The petitioner argued that Section 118 of Indian Succession Act, 1925, imposes arbitrary and unreasonable restrictions on them related to donation of their personal property for various religious or charitable purposes through will. It stated that a Christian having a nephew/niece, or any other near relation is not eligible to bequeath the property for religious or charitable purposes unless a prescribed procedure is followed. That procedure was complicated, harsh, and rigorous. So, the petitioners sought that section 118 of the Indian Succession Act, 1925 be declared as unconstitutional.
In its decision, the Court held that Section 118 of the Indian Succession Act, 1925 is unconstitutional as it violates Article 14 of the Constitution. However, the Court reiterated Sarla Mudgal to emphasize the need to implement UCC, which will help national integration by removing the contradictions in law based on ideologies and religion. It said that:
Article 44 provides that the State shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India. It is a matter of great regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A Common Civil Code will help the cause of national integration by removing the contradictions based on ideologies.
In 2011, in ABC v State, the question was whether an unwed mother must notify the father of the child about her petition to be appointed as the guardian of the child. The Court noted that Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their children by virtue of their maternity alone. It granted the guardianship of the child to the unwed mother. Again, the Court observed that a uniform civil code remains an unaddressed constitutional expectation.
While ruling in her favour, the Court stated that:
Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation.
The most recent judgment in 2017 of Shayara Bano v Union of India involving an archaic practice of triple talaq reinitiated the conversation around religion, personal law, and uniform civil code. The aggrieved petitioner in the case – a woman named Shayara Bano who was divorced by her husband through instant triple talaq – argued that “the practices of Instant Triple Talaq, polygamy and Nikah Halala in Muslim personal law were illegal, unconstitutional, and in violation of several fundamental rights i.e., Articles 14 (equality before law), 15 (non-discrimination), 21 (right to life with dignity) and 25 (right to freedom of conscience and religion) of the Indian Constitution.”
On the other hand, the counter-petition by All-India Muslim Personal Law Board (AIMPLB) argued that Muslim personal law is not subject to constitutional judicial review and that the Court did not have jurisdiction to entertain a constitutional challenge to Muslim personal law as these are essential practices of the Islamic religion and are protected under Article 25 of the Constitution.
In its judgement, the Court ruled the practice of Triple Talaq unconstitutional. They held that this practice of Instantaneous Triple Talaq is against both theologies as well as law and just because it is followed by a large number of people, it cannot be validated. After this judgement, the Parliament passed the Muslim Women (Protection of Rights on Marriage) Bill, 2019, that declared the practice of triple talaq as illegal and unconstitutional, and also made it a punishable offence.
The issue of UCC came up during this case because one of the counsels, representing the defendant, brought up the Constituent Assembly debates in his submissions and said that the intent of the Constituent Assembly was to protect ‘personal laws’ of different communities by elevating their stature to that of other fundamental rights.
The Court, in its observations on UCC, concluded that “this leads to the clear understanding, that the Constitution requires the State to provide for a uniform civil code, to remedy and assuage maladies.” What is unfortunate to note is that in this very case, the Supreme Court, refused to hear the Uniform Civil Code issue along with the triple talaq issue. The bench said that the two are separate issues. It said: “Triple talaq is a matter of human rights, so we would deal with it properly.”
Key Controversies Surrounding the UCC
The recent debates on the potential implementation of the UCC have served to highlight some of the challenges that the government faces in this task:
First, the perennial conflict between Fundamental Rights and Directive Principles of State Policy is likely to be revived to some extent. Fundamental Rights fall under Part III of the Constitution. They are individual rights guaranteed to every citizen. Their violation can be challenged in the courts and there are writs available to ensure their enforcement. However, Directive Principles fall under Part IV of the Constitution. They are directive in nature which means that it is the duty of the State to ensure these principles are incorporated in the governance of the country. However, they are not enforceable by any court of law.
Articles 25 and 26, under Part III, Fundamental Rights, in the Constitution, guarantee the right to freedom of religion. Article 25 guarantees to every person the freedom of conscience and the right to profess, practice and propagate religion, subject to public order, morality and health and to the other provisions of Part III. Opponents of UCC argue that this freedom of religion will be violated by the UCC, which is a part of non-enforceable Directive Principles.
However, proponents of UCC have convincingly argued that it will not violate Article 25 and 26. UCC is based on the idea that there is no necessary connection between religion and personal law in a civilized society. Marriage, succession and the like matters are of secular nature and, therefore, law can regulate them. The UCC will not result in interference of one’s religious beliefs and will regulate affairs related mainly to maintenance, succession and inheritance. In these matters, there will be a common law. This doesn’t in any way impinge on religious freedom.
Furthermore, proponents of UCC have also argued that UCC is compatible with Fundamental Rights dealing with equality under Articles 14 and 15 of the Constitution. Having a regime of separate personal laws violates the right to equality. It is also argued that the Constitution-makers envisaged the implementation of UCC at a favourable point of time in the future.
Second, the UCC is a relic of colonialism. As we have seen in the foregoing sections, the regime of personal laws did not exist in a systematic form prior to the advent of colonial rule in India. Since there was no unified, systematic legal system during the Muslim rule, the question of personal laws as a distinct legal system did not arise. Personal laws came into existence only when the modern legal system was implemented by the British in India.
Initially, what was termed as personal laws were nothing but a diverse, varied and disparate array of local customs that were followed in different places throughout India, under which, as we have seen, even Muslims were governed by Hindu local customs till the 1930s. In fact, the extent to which these local customs derived their authority from religion was not clear at all. It was only when the British undertook a systematic codification of what they came to term as personal laws that such laws acquired significance. Due to political reasons and to sharpen the Muslim communal identity, the British sought to project a religious sanctity to personal laws and, thereby, refused to formulate a common civil code, as they had done by formulating a criminal procedure code, a civil procedure code and a penal code.
Therefore, it needs to be realized that the system of personal laws is, in large part, a colonial legacy that acts as a hindrance to the unity of the nation.
Third, the UCC has two dimensions that are often debated viz. intra-religious equality and inter-religious uniformity or equality. In terms of intra-religious equality, the UCC will act as a panacea to the exploitation faced by Muslim women due to the application of Muslim personal laws on them, when it comes to family matters. This was amply highlighted by the Shah Bano case and the Triple Talaq judgement of the Supreme Court. Here also, the dimension of Fundamental Rights becomes crucial. Muslim women, being individual citizens of this country, are also entitled to their Fundamental Rights which are enjoyed by every individual. Imposition of personal laws or privileges of the religious community upon these women violate their individual Fundamental Rights. The extent to which the Constitution under Articles 25-28 (rights related to religious freedom) protect the rights of religious groups over the Fundamental Rights of individual citizens is a matter of debate.
Existing case laws – such as Shah Bano and Triple Talaq judgements – have amply shown that group rights, based on religious sanction, are a matter of interpretation and cannot take precedence over individual rights. In Sarla Mudgal case, the Court observed that,
Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity.
In terms of inter-religious equality or uniformity, the case for a UCC also becomes very pressing. As already discussed, absence of UCC violates Fundamental Rights related to equality under Articles 14 and 15 of the Constitution.
Finally, a major concern regarding the UCC – one which has been flagged by government functionaries too – is that it would impose uniformity by effacing tribal-specific laws and customs as well. India has a wide tribal diversity of indigenous communities in Northeastern region. These communities often follow their own family laws, as derived from local customs. Some of these favour women – like matriarchal systems – while others are unjust. Regardless, these states are protected and given constitutional guarantees to preserve their own separate identity under the Sixth Schedule of the Constitution. UCC, in its implementation, will have to contend with this issue.
It has been suggested that, perhaps, indigenous communities, which enjoy a special constitutional status and affirmative policies enshrined in the Constitution itself, should be exempted from the purview of UCC. The same cannot, after all, be said of religious minorities, who enjoy no special constitutional status or affirmative action privileges.
Personal Laws Beyond India
The global antecedents of a uniform civil law are traceable to Roman law – called Jus Civile – formulated under Emperor Justinian in 527 CE. Many countries have variously adapted this idea of a common code over generations. In modern times, one of the most notable examples of a uniform civil code universally applicable to all citizens is that of France. The Napoleon Civil Code, introduced in France as early as 1804 replaced more than 300 hundred local civil law codes. Even the United States, with all its diversity, has uniform civil laws applicable to all citizens, across the federal setup. The United Kingdom, whose common law system is followed in India, also does not have a law permitting separate personal laws in civil affairs. Japan too follows a strong set of civil laws in the domain of family matters, wherein the family law does not recognize the sufficiency of any religious ceremony for registering marriages.
Even Muslim countries like Pakistan, Turkey, Egypt, Saudi Arabia etc. mostly have a uniform set of civil laws (based on Islamic law or Sharia) applicable to all citizens, including religious minorities. In Muslim countries, minorities often do not get to follow their separate system of civil laws completely. However, the majority community can follow its religious or customary law, with various variations from place-to-place.
|Afghanistan||Polygyny legal for up to four wives|
|Algeria||Polygyny legal for up to four wives, but increasingly rare|
|Angola||Technically illegal, but still practiced|
|Bahrain||Polygyny legal for up to four wives, but rare.|
|Bangladesh||Legal and recognized, but often heavily taxed|
|Bhutan||Legal (including polyandry via customary law) but not civilly recognized. Increasingly rare|
|Botswana||Illegal under civil law, allowed under customary law|
|Brazil||Technically illegal, but decriminalized. Marriage-like união estável (“stable union”) ceremonies between three or more people have been performed.|
|Brunei||Legal and recognized|
|Burkina Faso||Technically illegal, but still practiced|
|Burundi||Technically illegal, but still practiced|
|Cambodia||Technically illegal, but still practiced|
|Cameroon||Polygyny legal, no limit on number of wives.|
|Central African Republic||Polygyny legal for up to four wives, but increasingly rare. Before marrying first wife, husband must get her permission to marry more wives in the future.|
|Chad||Legal and common, even among Christians|
|Djibouti||Polygyny legal for up to four wives|
|Dr Congo||Technically illegal, but still practiced|
|Egypt||Legal and recognized|
|Equatorial Guinea||Technically illegal, but still practiced|
|Eswatini||Legal and recognized but rare|
|Gabon||Legal in both forms, but only practiced by men. Couples must declare any polygamous intent before first marriage, but men are allowed to change their answer later.|
|Gambia||Polygyny legal for up to four wives; common|
|Ghana||Technically illegal, but still practiced|
|Guinea||Polygyny legal for up to four wives, but before marrying first wife, husband must get her permission to marry more wives in the future.|
|India||Polygyny legal up to four wives, but only for Muslims.|
|Indonesia||Legal, but rules vary by province|
|Iran||Legal and recognized|
|Iraq||Legal and recognized (except for Kurdistan)|
|Israel||Technically illegal, but still practiced|
|Jordan||Legal and recognized|
|Kazakhstan||Technically illegal, but still practiced|
|Kenya||Polygyny legal for up to four wives|
|Kuwait||Legal and recognized|
|Laos||Technically illegal, but still practiced|
|Lebanon||Polygyny legal up to four wives, but only for Muslims.|
|Lesotho||Illegal under civil law, allowed under customary law|
|Liberia||Illegal under civil law, allowed under customary law|
|Libya||Polygyny legal up to four wives, but only for Muslims. Uncommon.|
|Madagascar||Technically illegal, but still practiced|
|Malawi||Illegal under civil law, allowed under customary law|
|Malaysia||Polygyny legal up to four wives, but only for Muslims. Requires court permission|
|Maldives||Legal and recognized, provided the husband can demonstrate financial ability to support multiple wives|
|Mali||Polygyny legal for up to four wives. Before marrying first wife, husband must get her permission to marry more wives in the future. However, some husbands circumvent this with informal “religious” marriages.|
|Mauritania||Polygyny legal for up to four wives, but husband must get his existing wife’s/wives’ consent before marrying additional wives|
|Mauritius||Technically illegal, but still practiced|
|Morocco||Legal, but husband must be able to support additional wives financially and must have written permission from first wife.|
|Mozambique||Technically illegal, but still practiced|
|Namibia||Illegal under civil law, allowed under customary law|
|Nepal||Technically illegal, but still practiced|
|Niger||Illegal under civil law, allowed under customary law|
|Nigeria||Polygyny legal for up to four wives in Sharia Muslim states only|
|Oman||Legal and recognized|
|Pakistan||Polygyny legal up to four wives, but only for Muslims. Men must prove ability to financially support multiple wives, existing wives can forbid polygamy in marriage contract.|
|Palestine||Polygyny legal up to four wives. First wife can forbid polygamy in marriage contract.|
|Philippines||Polygyny legal up to four wives, but only for Muslims.|
|Qatar||Legal and recognized|
|Republic Of The Congo||Polygyny legal, but before marrying first wife, husband must get her permission to marry more wives in the future.|
|Russia||Technically illegal, but tolerated in Muslim regions (for example: Chechnya, Ingushetia, Dagestan).|
|Rwanda||Technically illegal, but still practiced|
|Sao Tome And Principe||Legal and recognized|
|Saudi Arabia||Legal and recognized|
|Senegal||Legal and recognized|
|Sierra Leone||Illegal under civil law, allowed under customary law|
|Singapore||Polygyny legal up to four wives, but only for Muslims.|
|Solomon Islands||Legal and recognized|
|Somalia||Legal and recognized|
|South Africa||Illegal under civil law, allowed under customary law [polygyny only]. Court permission required.|
|South Sudan||Legal and recognized|
|Sri Lanka||Legal and recognized, including polyandry|
|Sudan||Legal and recognized|
|Syria||Legal (except for Kurdistan)|
|Tanzania||Legal and recognized|
|Thailand||Technically illegal, but still practiced|
|Timor Leste||Technically illegal, but still practiced|
|Togo||Legal and recognized|
|Uganda||Legal and recognized|
|United Arab Emirates||Polygyny legal for up to four wives.|
|Yemen||Polygyny legal for up to four wives.|
|Zambia||Recognized under customary law. In some tribes, before marrying first wife, husband must get her permission to marry more wives in the future.|
|Zimbabwe||Illegal under civil law, allowed under customary law|
Source: World Population Review, 2023.
Pakistan, in recent times, implemented the Hindu Marriage Act, 2017, applicable to Punjab, Balochistan and Khyber Pakhtunkhwa. This was done in a half-hearted attempt to check the cases of thousands of minority girls being kidnapped and forcefully converted to Islam.
Besides India, there are hardly any other examples of countries have allowed personal laws to persist in 21st century. A partial example is Israel, which has witnessed conflicts between common law and Jewish-specific laws governing marriage and inheritance. Countries which do have personal or customary laws – mostly Muslim countries – have retained such laws out of religious deference for the majority community, not minority communities.
The conflict over UCC mirrors the larger global conflict over cultural rights versus secular human rights. The Globalization era of post-1990s has increasingly witnessed a conflict between fundamental human rights universally applicable to all, on the one hand, and, difference-based personal laws that seek to preserve separate identities of religious groups, on the other hand. Due to the rising trend of multiculturalism in the West after the 1990s, the conflict between particular cultures of religious groups and universal human rights has created a sharp divide. Often this division translated into conflict between western values and non-western values and a clash of civilizations. France, which has a system of uniform law, continues to be a fertile land for such conflicts between secularism and Islam. Other countries – especially in Europe after the migrant influx since 2015 – too have been beset by this conflict.
There is a strong belief, gaining ground, that religious minorities should adapt to the common law of the land, instead of the other way around. The present debate over UCC in India is also based on this belief. It now remains to be seen how the government will implement the UCC. There are suggestions that tribal communities should be exempted from the UCC. There are other suggestions that individual codification of civil laws can take place initially – such as in the case of outlawing triple talaq – before effecting the UCC. The draft bill on UCC prepared by Uttarakhand government – which will be submitted to the Centre – focuses on gender equality in laws governing inheritance, divorce and succession across all religions, and discards practices like polygamy, iddat and halala.
“The Mahomedan, the Hindu, the Buddhist, the Christian in India will not have to cease to be Mahomedan, Hindu, Buddhist, or Christian, in any sense of the term, for uniting into one great and puissant Indian Nation. Devotion to one’s own ideals and institutions, with tolerance and respect for the ideals and institu-tions of other sections of the community, and an ardent love and affection for the common civic life and ideal of all, – these are what must be cultivated by us now, for the building up of the real Indian Nation.” – Sri Aurobindo
The necessity of having a uniform civil law is of utmost importance from the point of view of national unity and integrity. Even in the 21st century, India, due to politics of appeasement, continues to be a rare country that allows religious minorities to run parallel family law regimes. This encourages greater separatism from the nation, especially as these family law regimes or personal laws, are not only construed as mere civil laws but are seen to have religious sanction as well, which was attributed to them during the colonial process of their codification.
As Sri Aurobindo had written during the days of India’s freedom struggle, “Of one thing we may be certain, that Hindu-Mahomedan unity cannot be effected by political adjustments or Congress flatteries. It must be sought deeper down, in the heart and in the mind, for where the causes of disunion are, there the remedies must be sought. We shall do well in trying to solve the problem to remember that misunderstanding is the most fruitful cause of our differences, that love compels love and that strength conciliates the strong. We must try to remove the causes of misunderstanding by a better mutual knowledge and sympathy; we must extend the unfaltering love of the patriot to our Musalman brother, remembering always that in him too Narayana dwells and to him too our Mother has given a permanent place in her bosom; but we must cease to approach him falsely or flatter out of a selfish weakness and cowardice. We believe this to be the only practical way of dealing with the difficulty. As a political question the Hindu-Mahomedan problem does not interest us at all, as a national problem it is of supreme importance.”
These words are well applicable to the UCC debate in the present times. For, the lack of implementation of the UCC is attributable to the Congress policy of keeping the minority community appeased, out of a misplaced sense of cowardice as well as in a quest for their votes. The UCC may be a political project, but its implementation is of a great importance to the nation.
Anand, A. (2021, November 26). The Print. Retrieved from https://theprint.in/india/how-ambedkar-munshi-krishnaswamy-ayyar-argued-for-uniform-civil-code-at-constituent-assembly/771945/
Parameswaran, L. (2020). History of Personal Laws in India. New Delhi: India Policy Foundation.
Singh, P. (2023, July 16). Organizer. Retrieved from https://organiser.org/2023/07/16/183914/bharat/uniform-civil-code-know-all-about-ucc-in-constituent-assembly-debates/
Thakur, P. (2023, June 28). Times of India. Retrieved from https://timesofindia.indiatimes.com/india/ucc-part-of-constitution-sc-verdicts-have-called-for-it/articleshow/101322762.cms?from=mdr
- Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985. ↑
- Iddat is the waiting period a woman must observe after the death of her husband or divorce before she can marry another man. ↑
- A.I.R. 1979 S.C. 362. ↑
- A.I.R. 1980 S.C. 1730. ↑
- Sarla Mudgal v. Union of India AIR 1995 SC 1531. ↑
- John Vallamattom & Anr vs Union Of India (2003). ↑
- AIR 2017 9 SCC 1 (SC). ↑
- Sarla Mudgal v. Union of India AIR 1995 SC 1531 ↑
- A man being married to several women. It is the most common form of polygamy. ↑
- A system in which a woman takes two or more husbands at the same time. ↑
- SABCL, Vol. 27, p. 46. ↑
- SABCL, Vol. 2, p. 24. ↑