Having successfully steamrolled opposition to the revocation of special status Article 370 to Kashmir and to the construction of the Ram temple in Ayodhya, speculation is rife that the BJP will be looking to implement another long-pending item on its agenda – the Uniform Civil Code (UCC).
The UCC issue aims to come up with one law that governs all citizens in matters related to marriage, inheritance, adoption, and guardianship. All these are at present governed by personal laws of various religions. Broadly speaking, there are three sets of personal laws – one for Hindus, another for Muslims, and the third for Christians. For the purposes of personal laws, the Hindu law is also applicable to Sikhs, Jains, and Buddhists.
The UCC gets its heft from Article 44 of the Directive Principles of State Policy in the Indian Constitution – which recommends the state to secure for its citizens a uniform civil code throughout the Indian territory. India already has a uniform civil code in criminal and economic matters, meaning that an individual accused of committing a crime will be treated the same irrespective of religion, community, or gender. Similarly, business deals and other trade-related agreements are governed by a common civil law.
It is only in the case of personal laws that successive governments have dithered from implementing a uniform code. The foremost reason for this is the intense opposition from sections of the Muslim and Christian communities who fear that it will erode their identity and religious freedom.
The Indian Constitution makes it clear that India is a secular country. But the meaning of secularism is different from that in the West where it implies the separation of the Church and the State. In India, secularism means the freedom for individuals to practice any religion they deem fit – under Articles 25 and 26 of the Constitution.
It is this right to practise freedom of one’s choice that comes in the way of implementing the UCC. Courts have ruled that within the Constitution, fundamental rights have a higher place than the Directive Principles. So, Articles 25 and 26 take precedence over Article 44, which deals with UCC.
The uniform civil code has a long history and was brought in by the British in colonial India in 1835 to streamline administration. The British sought to include economic deals and criminal matters in the uniform code, but kept personal laws out of its purview as they did not want to stir a hornet’s nest.
Much later, during the period of transition from British to Indian rule, the BN Rau committee recommended a codified law for Hindus regarding marriage and succession. This was eventually adopted in 1956 as the Hindu Succession Act that related to inheritance in cases where the will was not made (intestate).
This Act reformed the earlier laws on the issue, giving women almost equal rights to men on the issue of inheritance. In 2005, the Act was amended to remove any remnants of disparity between a son and a daughter in inheritance matters.
Overall, the Hindu personal laws are codified under four Acts — the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act.
In the case of Muslims, the personal laws are derived from their religious texts including the Quran and the Sharia. Among the various legislations concerning the Muslim community are the Shariat Application Act and Dissolution of Muslim Marriages Act.
For Christians, the personal laws applicable include the Indian Christian Marriages Act and the Indian Divorce Act.
There are differences in the three personal laws, which the UCC seeks to equalise. Interestingly, among all states, Goa has practised uniform civil code from the time of its rule by the Portuguese colonialists. Under the Portuguese Civil Code of 1867, which is still valid even after India annexed the territory in 1961, all Goans are almost subject to the same civil law irrespective of their religion or ethnicity.
Though the family laws of the three religions dominate the discourse on the subject, mention must be made regarding exceptions to safeguard regional identities in states like Assam, Nagaland, Mizoram, Andhra Pradesh, and Goa.
The UCC is a prickly issue with ramifications that can go beyond expectations if implemented, as one saw in the case of the Citizenship Amendment Act which was perceived to be anti-Muslim. So much so, the Law Commission of India in August 2018 concluded that implementation of the Uniform Civil Code was neither “necessary nor desirable at this stage”. It however suggested changes in marriage and divorce issues that would be acceptable to all communities but within their own personal laws.