The case against Uniform Civil Code

Prime Minister Narendra Modi made a pitch for the Uniform Civil Code (UCC) this week, underlining its desirability. He simultaneously accused the Opposition of instigating Muslims and blocking an essential social and legislative reform. Whatever the merits of this assertion, it is important to understand the implications of introducing the UCC and the legal and constitutional debates that have taken place on the subject.

If BR Ambedkar was of the view that it was “desirable” but should be totally “voluntary”, the consultation paper on the reform of family law by the 21st Law Commission concluded that reforms in family laws of different communities would provide a better guarantee of securing rights for women and children than bringing in UCC.

Ambedkar’s conclusion in the Constituent Assembly (Constituent Assembly Debates Volume VII) was 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…” The fissures in the Constituent Assembly over UCC that would govern personal matters including marriage, divorce, adoption, inheritance and succession led to the Code being adopted in the Constitution not as a fundamental right but as part of the Directive Principles of State Policy (DPSP); it was thus not an enforceable provision.

UCC, as defined in Article 44 is part of the DPSP, like securing a living wage for workers, raising the level of nutrition and standard of living and improve public health. These are, as Article 37 states, guiding principles for government policies and are not enforceable by courts.

Attempts to reform family law were subsequently made, most notable being the Hindu Code Bills in the 1950s that were passed as Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoptions and Maintenance Act. There have been judicial interventions in Mohd. Ahmed Khan-v-Shah Bano Begum, Jordan Diengdeh-v-SS Chopra, Sarla Mudgal-v-Union of India where the courts have sought to amend personal laws and argue for UCC.

In the Shah Bano case, where the divorced wife was awarded maintenance by the husband beyond the iddat period, the court advocated a common Civil Code that will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. In Shayara Bano-v-Union of India, the court held the practice of triple talaq to be unconstitutional.

Socio-cultural practices

While judicial interventions have followed, the Legislature over the years has been sensitive to the diversity of socio-cultural practices as is evident from adoption of the Sixth Schedule which provides for autonomous districts and regions. The district councils have legislative competence to deal with inheritance, succession, marriage and divorce. Article 371A was inserted by the Constitution (13th Amendment) Act, 1962 which provides that no Act of Parliament in respect of religious and social practices of the Nagas, Naga customary law and procedure et al shall apply to the state of Nagaland unless the legislative assembly of Nagaland so decides by a resolution. Article 371 A contemplates differential treatment to Nagaland while Articles 371 B – 371 I offer similar exceptions to other States in the north-east owing to different social conditions prevalent in these parts.

The 21st Law Commission, the latest deliberation on the subject, recognised that given the differences on the issue of family law, it is “fruitful to engage with complex issues while keeping in view the limitations of the law”. It put forward its questionnaire in the public domain in 2016 and received over 75,378 responses suggesting various ways in which reforms could be executed in personal laws. The Commission, in its exhaustive 185-page-long consultation paper, put forth the view that a UCC could not be the desirable goal in maintaining the balance between securing the rights of the weaker sections — women and children — while simultaneously celebrating diversity of culture. The Commission promoted reforms in family laws of different religions over UCC which, it said, was “neither desirable nor necessary”.

“This Commission has, therefore, dealt with laws that are discriminatory rather than providing a UCC 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,” it said. “Cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a threat to the territorial integrity of the country,” said the exhaustive report.

However, the matter has again been placed before the 22nd Law Commission which, as of June 14 this year, sought the views of religious organisations and the public on UCC. Following this, the PM, in an election meeting this week, pushed for UCC, arguing that, “Today, we are witnessing how efforts are being made to instigate people in the name of UCC. Tell me, if in one house, there is one law for one family member and another for another family member, can that house function?... How can a country function with such a dual system?”

The fact is that the country has functioned not with a dual but multiple systems of family laws that prevail in tribal areas and different communities. The Law Commission has pointed to the dangers of forcing uniformity and the necessity for voluntary reforms in the matter of personal laws. The objective in bringing up UCC at a BJP event called ‘Mera Booth, Sabse Majboot’ in election-bound Madhya Pradesh can hardly be to build consensus over a Constitutional aspiration to subsume personal laws. The PM was merely making a political speech which has served to outline a narrative that boosts the BJP’s prospects in the election season. It has little to do with UCC.

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