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EXPLAINED: Why Uniform Civil Code Is Not A Reality Yet. What It Will Mean For India To Have One

File photo of Delhi High Court.

File photo of Delhi High Court.

The Delhi High Court is the latest to prod the Centre on the question of bringing in a Uniform Civil Code. Here's all you need to know.

A Uniform Civil Code (UCC) for India is one of the political articles of faith for the BJP and was part of its 2019 election manifesto. The need for one has been argued on the grounds that it will promote homogeneity and unity in India and now a Delhi High Court justice has also exhorted the Centre to bring in a Uniform Civil Code, saying youths in India “ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce”. So, what is UCC and what has kept one from being brought in for the country?

What Is Uniform Civil Code?

Matters like marriage, inheritance, adoption, succession, etc. are governed in India according to the personal laws of the various religious communities. That is, Hindus have their own marriage laws and Muslim marriages are governed by the community’s personal laws. The same is the case with Parsi and Christians who, too, have separate personal laws governing these matters.

But separate laws for the different communities has for long been seen as contributing to legal and administrative complexities and, as the Delhi HC noted, creates grounds for “issues arising due to conflicts in various personal laws”.

The founding fathers of the Indian republic had anticipated these issues and, although they did not do away with the different personal laws that had been introduced by the British when they codified laws for India, they inserted an article in the chapter on Directive Principles of State Policy that makes up Part IV of the Constitution of India.

Article 44 says that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. However, its presence in the said section means that Article 44 is not mandatory and it is up to the Parliament to make a law to bring in UCC. That is because Article 37 says that the “provisions contained in this Part (Part IV) shall not be enforceable by any court… and it shall be the duty of the State to apply these principles in making laws”.

However, though not enforceable such as they are, the directive principles are to be deemed as being “fundamental in the governance of the country”.

Why Has The UCC Not Been Enacted Yet?

When the subcontinent’s erstwhile British rulers got about creating a modern legal system for its subjects it decided to codify laws governing crimes, contracts, etc. to be the same for all communities. But on the subject of the laws governing marriage, inheritance, etc. it decided to persist with the customary and personal laws of the separate communities.

Then, when the task of writing independent India’s Constitution was under way, India’s political leaders saw the need for a UCC as it was felt that would serve the purpose of achieving equality and justice, but it was held that it was not time to push through such a policy as the conditions were not favourable for it. That is because, in a traditional society like India, customary laws and religious practices are closely followed by the people and any attempt to outlaw these is regarded as being a recipe for trouble.

Dr BR Ambedkar, the first Law Minister of India, hence, held that while UCC was desirable, its application should be put off till a more suitable time.

More recently, however, the Law Commission in a 2018 report observed that a UCC “is neither necessary nor desirable at this stage” for India. The reason it cited was that a diverse country like India has to have separate laws to respect the needs of all its people and bringing uniformity would actually serve to complicate matters more than simplify them.

“Constitution itself has given so many exemptions to so many people like the tribals, etc. There are exemptions even in Civil Procedure Code and Criminal Procedure Code… UCC is not a solution and there cannot be a composite Act,” it had said.

Why Is Goa An Exception?

Courts in India, including the Supreme Court, have time and again questioned why a UCC is yet to be introduced when the framers of the Constitution themselves had laid the ground for one by including it as a directive principle. The top court has also in several orders, including in the Shah Bano case of 1985, called for the enactment of a UCC.

“It is interesting to note that whereas the founders of the Constitution in Article 44… had hoped and expected that the state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard,” a division bench of SC had said in its order in a case in 2019. In the same judgment, it remarked that Goa is a “shining example” with a UCC “applicable to all, regardless of religion except while protecting certain limited rights”.

Goa is the only state in India where all communities, including Hindus, Muslims, Christians, are governed by the same law when it comes to marriage, divorce, succession, etc. That is because though Goa became a part of the Indian union in 1961, the former Portuguese colony decided to continue with the Portuguese Civil Code of 1867 for all communities in the state.

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  • First Published: July 11, 2021, 16:49 IST
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