Uniform Civil Code and debate surrounding it
- Posted By
Polity & Governance
31st Mar, 2021
GS - 2 : Polity and Governance
Sub-topic: Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure
The Chief Justice of India (CJI) recently applauded Goa’s Uniform Civil Code. He also encouraged “intellectuals” who are involved in ‘academic talk’ to visit the state to learn about it.
- CJI of India said that Goa has Uniform Civil Code as envisaged by the Constitution, and all the academicians and Intellectuals debating on the subject, should come and see how justice is administered in the state of Goa.
- Goa has also been described as the ‘shining example’ of success of Uniform Civil Code before.
- Goa is the only Indian state which has a Uniform Civil Code in the form of common family law.
- In the 19th century, the Portuguese Civil Code was bought in place and it has not been replaced even after Goa’s independence, thus, still remaining in force.
- In 2018, taking a view contrary to the Supreme Court, the Law Commission of India had concluded that “a Uniform Civil Code is neither feasible nor desirable”.
In this context, let us understand the concept of Uniform Civil Code and debate surrounding it in detail.
What is Uniform Civil Code?
- A Uniform Civil Code means that all sections of the society irrespective of their religion shall be treated equally according to a national civil code, which shall be applicable to all uniformly.
- It covers areas like - Inheritance, Marriage, adoption, divorce, maintenance etc. It is based on the presumption that no connection exists between religion and law in modern civilization.
- Article 44 present in the Directive Principles of State Policy (Part IV) of the Indian Constitution states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.
- During British rule, while criminal laws were codified and became common for the whole country, personal laws continue to be governed by separate codes for different communities.
- After independence, there was division on the issue that, should the Uniform Civil Code be placed in the fundamental rights chapter or not?
- The matter was settled by a vote and finally UCC was placed outside fundamental rights
- Later, a common Hindu code was put forward by BR Ambedkar. But that bill also could not pass the legislature. The provisions of the bill were later diluted and then passed.
The two crucial debates
1. DPSP vs Fundamental Rights
- Fundamental Rights are justiciable while DPSP are not, this makes Fundamental Rights inherently more important than DPSP.
- The 42nd Amendment Act, inserted Article 31C which stated that, if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the fundamental rights under Articles 14 and 19.
- In the Minerva Mills Judgement (1980), Supreme Court held, “Indian Constitution is founded on the bed-rock 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.“
- Thus, Supreme Court held, that a balance between Fundamental Rights and DPSP is needed in policy-making.
2. Uniform Civil Code vs Fundamental Right to Religion
- Some important Article relating to Fundamental Right to Religion in current debate are
- Article 25 - lays down individual right to religion
- Article 26 - Right of each religious denomination to or any section to manage its own affairs in matters of religion
- Article 29 - includes right to conserve distinctive culture (is a part of Cultural and Educational Rights)
- An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to fundamental rights.
- The Constituent assembly was divided on the matter of whether UCC and Right to religion should be in the same Part.
- But eventually, the assembly voted by 5:4 ratio of keeping UCC in Part IV, thus giving it lesser importance than the Fundamental Right to religion.
How will Uniform Civil Code Help?
- It will help in integration of India, as today personal laws vary across states as well as religion.
- Modern and progressive laws can be made. For example current laws which discriminate against women can be done away with.
- It will help reduce vote bank politics.
- It will reduce the burden on the judiciary as currently, a plethora of personal law leaves many loopholes and uncertainty.
- It will lead to a true secular state where everyone would be treated equally despite his/her religion.
What are the arguments against UCC?
- The term ‘secularism’ in our constitution has meaning only if it assures that every religious group has freedom of expression of any form of difference. UCC goes against this principle.
- Both religious and regional diversity may get subsumed under the louder voice of the majority.
- Discriminatory practices within a religion can hide behind the cloak of that faith to gain legitimacy
Challenges in implementation of UCC
- Vast range of interests: The task of actually devising a set of common rules that will govern all communities is a very challenging and complex one. A vast range of interests and sentiments have to be accounted for.
- Misinformation about UCC: Idea of UCC has not been clearly articulated publicly, leading minorities to believe that it is a way of imposing majority views on them.
- Lack of political interest: Lack of political will due to the sensitivity and complexities involved in the issue. Political parties do not want to risk their support base.
- Communalization: Different religious communities have their own personal laws which lead to the communalization of the UCC debate.
A progressive outlook should be encouraged among the citizenry which would help understand the spirit of the UCC. For this, value based education, awareness and sensitisation programmes can be taken up. Instead of using UCC as a sentimental issue to gain political advantage, political, intellectual and religious leaders should try to evolve a consensus around it and help India realize the objective that our constitutional framers envisioned.