The framers of the Indian Constitution anticipated the necessity for uniformity in personal laws. They recognized, however, that it was a difficult undertaking in the 1940s, and that it would bear fruit sooner or later. In this context, they adopted Article 44, and framed a Directive Principle of State Policy stating that the State shall make every effort to apply the Uniform Civil Code (UCC). They did, however, state that it must be done only when the country is ready and the State can demonstrate social acceptability of the same. It is probably in this regard that the Law Commission of India recently issued a notice seeking members of civil society to submit reports on their views and opinions on the law.
An understanding of UCC requires an understanding of two sides – what is UCC and its history and what are the personal laws and its history?
It's a common misconception that UCC has something to do with religious practices and rituals. As the name suggests, it is primarily about civil laws; including matters pertaining to adoption, inheritance, divorce, and marriage. UCC, if and when adopted, would mean that common laws would apply to all Indians regardless of their religion.
This is not the first time the UCC has made headlines across the country. Since it has been at the forefront of confronting the difficulties in the current personal laws, the Supreme Court of India has been behind the State, urging it to apply the UCC. The UCC gained prominence primarily as a result of its inclusion in the Shao Bano case, which included the maintenance of a Muslim divorced wife, which is against their personal law, but the Supreme Court mandated it anyway for the sake of fairness. It was in this case that the SC emphasised on the difficulty of the application of different personal laws and the need for UCC.
Personal laws on the other hand are more than one in number. The Hindu Code, Muslim Personal Law, Christian Personal Law, and Parsi Marriage and Divorce Act. It is critical to comprehend what constitutes the content of these laws. The codification of the Hindu Code, as well as the Muslim Personal Law, was an endeavour by the British. They, however, abandoned it because they were afraid of the consequences in the form of communal protests.
It was then redrafted by the Nehruvian government, with Dr. B.R. Ambedkar as the Chairman of the Constitutional Drafting Committee. Now, what is included in this code does not strictly cover all of Hinduism's tenets. Hinduism is diverse in and of itself, and the Hindu Code was only a standardisation of Hindu personal rules that eliminated regional, local, and tribal customs. The Muslim Personal Law has also been codified on similar lines. It must be understood that there is a marked distinction between what these laws recommend and what is practised in reality.
The reality is that the UCC will go a long way toward establishing a code based on equality, human rights, and other ethical principles. Be it polygamy, inheritance, divorce, or alimony, the UCC will have a significant impact on how citizens' personal lives unfold. And, in the context of equality, the Central Government's efforts to make laws that are uniform and ethical for the entire society should be welcomed.
Another important thing to consider while discussing this topic is the shift in society's fabric and circumstances. Personal laws were once rigidly applied within the community to which the specific law was applied. However, when inter-religious marriage and its complications are considered, the implementation of a specific law becomes complicated. The landmark judgment of Sarla Mudgal, in which a Hindu male changed to Islam and remarried without divorcing his first wife, is a famous example of the type of challenges encountered.
However the nature and form of UCC is up for discussion and debate, with no precedence in India's legal history. While it promises to introduce a common law, there is no information to suggest whether the code will be in the form of a distinct law, an amendment, or any other form, nor its method of implementation in the Indian subcontinent, nor the contents and effects of the law.
The debate on its contents is warranted only after a draft is presented by the Law Commission. At present, as dutiful and political conscious citizens, one can always contribute to the drafting process by submitting suggestions for the Code. It is with this hope, we believe, just as our personal laws align with our aspirations, our aspirations too will align with the idea of putting India First.