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Poll-bound Uttarakhand CM’s announcement to prepare a draft of the Uniform Civil Code (UCC) in the State, raises questions over whether an individual State can bring its own family law code.

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption, etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Why need UCC?

• UCC would provide equal status to all citizens
• It would promote gender parity in Indian society.
• UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
• Its implementation would thus support the national integration.

Hurdles to UCC implementation

• There are practical difficulties due to religious and cultural diversity in India.
• The UCC is often perceived by the minorities as an encroachment on religious freedom.
• It is often regarded as interference of the state in personal matters of the minorities.
• Experts often argue that the time is not ripe for Indian society to embrace such UCC.

 UCC vs. Right to Freedom of Religion

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other FRs.
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important.

Enacting and Enforcing UCC: A reality check

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “the state shall endeavor”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be an obligation of the state” etc.
• Article 43 mentions “state shall endeavor by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bedrock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

What about Personal Laws?

• Citizens belonging to different religions and denominations follow different property and matrimonial laws which are an affront to the nation’s unity.
• If the framers of the Constitution had intended to have a UCC, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.

Various customary laws

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on registration of marriage among Muslims, laws differ from place to place.
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

Minority opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organizations, including Hindu organizations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favor of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

 Conclusion

• Article 44 of the Constitution creates an obligation upon the State to endeavour to secure for citizens a Uniform Civil Code throughout the country.
• The purpose behind UCC is to strengthen the object of “Secular Democratic Republic” as enshrined in the Preamble of the Constitution.
• This provision is provided to effect the integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws.
• Hence UCC should be enforced taking into confidence all the sections of Indian society.
• Goa’s Portuguese Civil Code of 1867 is an example of a common family law existing in harmony.

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