DOES INDIA NEED A UNIFORM CIVIL CODE?

The Uniform Civil Code (hereafter referred to as UCC) has been a very controversial topic with many supporters and many opponents. This article will examine the positive and negative aspects of implementation of UCC in India.

Advantages of Implementing A Uniform Civil Code

The biggest source of support for the Uniform Civil Code is the presence of article 44[1] of the Indian Constitution. The article states that the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. Even the Supreme Court has shown its surprise at the lack of implementation of the UCC. In Jose Paulo Coutinho v. Maria Luiza Pereira and Anr[2], the Supreme Court stated that despite the presence of Article 44 in the Indian Constitution and the exhortations by the court in Mohd. Ahmed Khan v. Shah Bano[3] and Sarla Mudgal and Ors. vs. Union of India[4], there still hasn’t been any action taken by the legislature. The court also pointed out the example of Goa and stated that Goa has a uniform civil code applicable to all irrespective of religion while protecting certain limited rights.

In the Shah Bano[5] case, the court mentioned that a uniform civil code will further the cause of national integration by removing disparate loyalties to laws that have conflicting ideologies. It also mentioned that the state has to take upon itself the mantle of implementing a UCC as the communities are unwilling to do so. Even Dr. Tahir Mahmood, in his book Muslim Personal Law (1977) had written that while India goes on the path of becoming a secular nation, it should not administer religion-based personal laws.

In the Sarla Mudgal case[6], the events of the case show that such events are occurring due to the lack of UCC. The respondent was a Hindu and had 3 children with his wife. He later converted to Islam and married another woman and had another child. After his marriage, he again reverted to Hinduism and left his second wife. The second wife filed a suit asking for maintenance. The court noted that this was an open inducement to Hindu men who want to marry again to escape punishment under the Hindu laws and they embrace Islam as Indian law allows 4 marriages in Islam. The court was also disappointed that the promise of UCC had been left in cold storage ever since independence.

Another advantage of implementing UCC is the promotion of gender justice. If the laws are common for all religions, it will lead to speedy disposal of justice and the rights of women can be protected in a better manner. Due to complex and uncodified religious laws, women often suffer at the hands of men who tend to misuse the existing laws and coerce women by marrying them. The UCC can also simplify the existing laws relating to marriage, succession, etc. As mentioned earlier, the implementation of UCC in Goa has been very beneficial for the residents of the state.

Problems with the Code’s Implementation

However, there will be opposition to the UCC and it can be misused if not properly implemented. The Law Commission of India’s consultation report on the Reform of Family law[7] is an exhaustive account of the debate regarding the UCC. There was no consensus among the makers of the Constitution about the powers of such a code. Would the code work along with personal laws or would the code remove personal laws entirely? These questions could not be answered completely. The report also enlists the constitutional challenges that may arise before the legislature in implementing UCC.

The Sixth Schedule of the Constitution[8] has provisions for autonomous districts and regions. It was recognized that in certain states like Assam, Mizoram, Nagaland, Andhra Pradesh, and Goa there would be problems incomplete implementation of Indian law as there was a concern about exploitation by migrants and there was a lack of political stability in this country. Article 371A also states that no law made by the parliament of India can be passed In Nagaland unless the State legislative council approves the proposed legislation. The report argues that codification of all personal laws and creation of general principles is more beneficial than UCC which may lead to many people being discouraged to follow the law as matters related to marriage and divorce can be settled without the intervention of the courts. Also, there will be concerns among the minorities regarding the implementation of the UCC as they will fear that their fundamental rights to freedom of religion may be violated by the state by the way of implementation of UCC.

In my opinion, Uniform Civil Code is necessary as it will lead to much better implementation of law and will protect the rights of women, but the concerns of the minorities cannot be ignored and they must be kept in the loop while legislating such a law. The fundamental rights enshrined in the Constitution must not be infringed by the implementation of UCC.