Uniform Civil Code in India – Meaning and Prospects

March 19th, 20186:19 pm @    


Colonial History and Uniform Civil Code

Codification of law dates back to the colonial period and the genesis of our country’s legislative literature can be traced back to the colonial era. The Lex Loci Report of October 1840 emphasized on the necessity for codification of Indian law relating to crime, evidence, contract etc., but it recommended that the personal laws of Hindus and Muslims should be kept outside the purview of such codification. Warren Hastings by a formal declaration of the policy in the Administration of Justice Regulation, 1780 pronounced that while dealing with disputes of marriage, divorce or inheritance people would be governed by their personal laws. Personal laws are formulated and based on customs, usage and ancient scriptures of a religious community, which set forth a common set of rules governing every citizen.  

 

What is Uniform Civil Code?

A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. The need for such a code takes in to account the constitutional mandate of securing justice and equality for all citizens. A uniform criminal code is applicable to all citizens irrespective of religion, caste, gender and domicile in our country. But a similar code pertaining to marriage, divorce, succession and other family matters has not been brought in to effect. The personal laws vary widely in their sources, philosophy and application. Therefore, there is an inherent difficulty and resistance in bringing people together and unifying them when different religions and personal laws govern them.

Constitution and Uniform Civil Code

During the post-colonial period, the framers of the Indian Constitution envisaged a uniform civil code governing the personal laws in the country and thereby incorporated Article 44 in Part IV of the Indian Constitution in furtherance of the Directive Principles of State Policy. Thereby, making it incumbent on the state to secure for the citizens a Uniform Civil Code thought-out the territory of India. The directive principle embodied under Article 44 of the Constitution is aimed at gradually achieving, rather than at once, far reaching equality for all citizens.

The Preamble to the Constitution resolves to constitute a ‘Secular Democratic Republic.’ Which in effect means that there shall be no state religion and the state shall not discriminate on the basis of religion. The personal laws of each religion, which is comprised of separate ingredients and founded on distinct ideologies, the uniform civil code must strike a balance between the protection of fundamental rights and religious principles of different communities. Marriage, divorce, succession etc. can be matters of a secular nature, which the law can regulate. Therefore, a uniform codified law, which will subsume all religions in relation to the personal laws governing different communities, should be necessitated.

 

Supreme Court of India on Uniform Civil Code

The Supreme Court for the first time directed the parliament to frame a Uniform Civil Code in 1985 in the case of Mohd Ahmed Khan v Shah Bano Begum. In Sarla Mudgal v Union of India 1995, Justice Kuldip Singh reiterated the need for the Parliament to frame a Uniform Civil Code, which would help the cause of national integration by removing contradictions based on ideologies. Therefore, the responsibility entrusted on the State under Article 44 of the Constitution whereby a Uniform Civil Code must be secured has been urged by the Supreme Court repeatedly as a matter of urgency.

 

Why does India need a Uniform Civil Code?

A uniform civil code is of an absolute necessity for individuals belonging to different religions and denominations and it is imperative for the promotion of national unity and solidarity. Thus, divergent religious ideologies must merge and culminate in to common and unified principles and objectives, adhering to the true spirit of secularism. However, after more than 60 years of independence the aspiration of a Uniform Civil Code remains unrealized.  

The idea and principle of having a uniform civil code, governing personal laws is to treat every person equally and also so that just, fair and predictable laws protect everyone. Moreover, a uniform civil code would put in place a set of laws that would govern personal matters of all citizens irrespective of religion, which is the cornerstone of secularism. It would enable to put an end to gender discrimination on religious grounds, strengthen the secular fabric and also promote unity. From Shah Bano to Shayara Bano who recently filed a PIL in the Supreme Court the emphasis has always been on gender friendly reforms of personal laws.

Therefore, given the current political and social scenario, the more progressive and liberal sections are demanding for a uniform civil code, which would govern individuals across all religions, caste and tribe uniformly, and also protect their fundamental and constitutional rights. Whether it would be the endeavor of the state, the mandate of the court or the will of the people is a pertinent issue which only time will enfold.

Article by

Anasuya is pursuing LL.M from Faculty of Law, Delhi University and intends to enter academics. Writing is something that she has always cherished and a medium through which she believes that one can communicate and reach out, especially in law which is such a complex, dynamic and multifaceted subject.

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