A Commentary on the Uniform Civil Code

Uniform Civil Code (UCC) is a set of laws that apply uniformly across the country to all religious communities in personal issues such as marriage, divorce, inheritance, and adoption.[1] Article 44 of the Constitution mentions about the UCC which says that the State should endeavour to secure a uniform civil code for its citizens.

The UCC has its origins in colonial India when the British government issued a report in 1835 emphasizing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, and specifically recommended that personal laws of Hindus and Muslims be kept out of such codification. In 1941, the government formed the B N Rau Committee to codify Hindu law due to an increase in legislation dealing with personal concerns at the end of British rule. The Hindu Law Committee was tasked with determining whether or not common Hindu laws were necessary.[2]

One of the Directive Principles of State Policy (DPSP)[3] is Article 44. DPSPs, as stated in Article 37, are not justiciable (that is, they cannot be enforced by a court), but the concepts they establish are crucial in the governance of a State. Fundamental Rights are legal obligations that can be enforced in a court of law. While Article 44 utilises the phrase “state shall endeavour,” other articles under the chapter of “Directive Principles of State Policy” use phrases like “in particular strive,” “shall, in particular, direct its policies,” “shall be the state’s obligation,” and so on. Article 43 states that the “state shall endeavour through adequate legislation,” however Article 44 does not include the words “by suitable legislation.”

Problems in drafting a uniform civil code

Article 25 of the Indian Constitution acts as a key impediment to the implementation of the Uniform Civil Code. The implementation of the Uniform Civil Code is opposed by the country’s minorities, who invoke Article 25 as a defence. The Constitution of India provides religious freedom, as a Fundamental Right under Article 25. A person is given a Fundamental Right to practice and propagate his or her chosen religion under this Article. Religious activities that are widespread in communal personal laws are continued to be practised. Religious communities argue that the Right to Freedom of Faith allows them to regulate personal laws according to the laws of their religious communities. It is also argued that Article 44 is merely a DPSP that is not enforceable in courts, whereas Article 25 is a Fundamental Right that is enforceable in the courts.

However, secular activities are not covered under Article 25. The State, not religion, is responsible for secular activities. Personal laws are included in this exception, according to groups that support the implementation of UCC. It’s important to remember that divorce, adoption, and inheritance are all legal issues, not religious ones. For better applicability of constitutional laws, these issues can be segregated by faith. It is preferable to keep law and religion distinct. This has been a long-running controversy. The need for a UCC, on the other hand, cannot be ignored.

The existence of fears in the minds of the country’s minority population is another important problem with the implementation of the UCC. A majority of the Hindu personal rules are already written and divorced from their religion. The minorities are frightened of having majoritarian personal laws imposed on them. The belief in UCC is that minorities should be subjected to the majority rule. In many cases, minorities’ insecurity is evident. According to the minorities’ viewpoint, the Uniform Civil Code’s intent and its goal are diametrically opposed. The actual meaning of UCC is not about imposing majority rule on the minority, but rather is about having a consistent and secular system of civil law that equally protects the constitutional rights of all Indian citizens, regardless of faith.[4]

[1] Shabbeer Ahmed and Shabeer Ahmed, Uniform Civil Code (Article 44 Of The Constitution) A Dead Letter, 67 THE INDIAN JOURNAL OF POLITICAL SCIENCE, 550 (2006).

[2] Faizan Mustafa, Uniform Civil Code, a look at its status, debate around it, INDIAN EXPRESS (May 3, 2021). https://indianexpress.com/article/research/shariat-muslim-personal-law-sharia-history-shayara-bano-shah-bano-triple-talaq-personal-laws-religious-laws-uniform-civil-code-2784081/.

[3] DPSPs are principles that are not enforceable in any court yet are to be applied while making any laws with an intention to establish a just society in the country

[4] G.L. Verma, Why India needs a Uniform Civil Code, THE STATESMAN (September 19, 2020). https://www.thestatesman.com/supplements/law/india-needs-uniform-civil-code-1502922940.html

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