Uniform Civil Code: What is it and What are the Arguments Against it?

(This piece is being republished from The Quint's archives in light of the 22nd Law Commission seeking fresh suggestions from the public and religious organisations on the Uniform Civil Code.)

A Uniform Civil Code would ensure one law for the entire country which will apply to all religious and tribal communities in their personal matters such as property, marriage, inheritance, adoption, etc.

This means that existing personal laws based on religion like the Hindu marriage act (1955), the Hindu succession act (1956), and the Muslim personal law application act (1937), will technically be dissolved. So let's break this issue down with 5 questions.

What Does the Constitution Say About a UCC?

Article 44 of the Indian constitution says, "The state shall endeavor to secure a Uniform Civil Code for the citizens throughout the territory of India."

This means that the constitution is directing the government to bring all communities together on matters that are currently governed by their respective personal laws.

It is, however, a directive principle of state policy, which means that it is not enforceable. For example, Article 47 directs the state to prohibit the consumption of intoxicating drinks and drugs which are injurious to health. Alcohol, however, is sold for consumption in most states of the country.

Can Individual States Impose a UCC?

Legal experts are divided on whether a state has the power to bring about a uniform civil code. Some experts say that because issues like marriage, divorce, inheritance, and property rights come under the Concurrent List of the Constitution, which is a list of 52 subjects on which laws can be made by both the centre and the states, state governments have the power to impose it.

Article 44, however, says that a UCC will be applied to "citizens throughout the territory of India" which seems to imply that individual states do not have that power.

Giving states the power to bring about a UCC can pose a number of practical issues as well. For example, what if Gujarat has a UCC, and two people who get married in that state move to Rajasthan? Which law will they follow?

What are the Arguments Against a UCC?

There are 4 key arguments.

The main argument against a UCC is that it violates the constitutional freedom to practice the religion of choice which allows religious communities to follow their respective personal laws. For example, Article 25 gives every religious group the right to manage its own affairs. Article 29 gives them the right to conserve their distinct culture.

Additionally, the fundamental rights sub-committee of the Constituent Assembly of India deliberately kept did not include a UCC as a fundamental right. A similar concern has been voiced by tribal groups like the Rashtriya Adivasi Ekta Parishad, which approached the Supreme Court in 2016 seeking protection of their customs and religious practices from a potential UCC. In the tribal territories of Nagaland, existing customary laws have primacy over federal laws with respect to personal issues like marriage, land ownership, etc.

Secondly, it is also argued that if codified civil laws and criminal laws like the CrPC and IPC don't follow  ‘one nation, one law’, then how can this diktat be applied to diverse personal laws of various communities? For example, the Indian Evidence Act of 1872, a federal act, was amended by the governments of West Bengal and Tamil Nadu. With respect to criminal law, note that different states have different legal ages for drinking alcohol.

Thirdly, did the framers of the constitution intend total uniformity? After all, personal laws were placed in the Concurrent List, entry number 5, giving both the Parliament and State Assemblies the power to legislate on personal issues. If the framers of the Constitution intended uniformity in personal laws, they would have put them on the union list, giving parliament all the power to legislate on them.

And finally, it is alleged that a UCC will impose a Hinduised code for all communities. For example, a UCC could include provisions regarding personal issues like marriage, that are in line with Hindu customs but will legally force other communities to follow the same.

Which States Have a UCC in India?

Goa is the only state in the country that has a UCC. But the Goa Civil Code was given by the Portuguese in 1867.

Former Chief Justice Bobde in 2021 had hailed the Goa Civil Code, saying, "Goa has what Constitutional framers envisaged for India - a Uniform Civil Code. It applies in marriage and succession, governing all Goans irrespective of religious affiliation."

What Have Different Institutions Said About a Potential UCC?

While saying that a UCC "is neither necessary nor desirable at this stage", a 185-page report published in 2018 by the Law Commission recommended that discriminatory practices, prejudices, and stereotypes within a particular religion and its personal laws should be studied and amended.

The Supreme Court in various judgments has called for the implementation of a UCC, most famously in the Shah Bano case. Other judgments include Sarla Mudgal, & others. v. Union of India and Paulo Coutinho vs Maria Luiza Valentina Pereira, which dealt directly with the Goa Civil Code.

And from within the central government, Union Law Minister Kiren Rijiju said in Parliament this year that the central government currently had no plans to set up a panel to implement a UCC. He has requested the 22nd Law Commission of India to examine various issues surrounding the same.

So, as the BJP pushes for a uniform civil code, especially in Uttarakhand, and poll-bound states like Gujarat and Himachal Pradesh, the question remains, can a diverse country like India ever have uniformity in personal laws?