Prime Minister Narendra Modi's comments in Madhya Pradesh on the necessity of a Uniform Civil Code (UCC) for India resonates with the understanding that uniformity is not conformity. A uniform code does not imply that all individuals must conform to the same beliefs, practices, or cultural norms; rather, it suggests that all citizens should be governed by the same set of civil laws regardless of their background or beliefs. It means uniformity in the application of laws, not uniformity in culture or religion. This distinction is crucial as it upholds the multicultural fabric of a diverse country like India while promoting a shared sense of citizenship and national identity. This concept echoes Voltaire's principle in "Treatise on Tolerance", where he emphasizes that in a well-governed state, everyone's ability to follow their personal beliefs should be protected as long as it doesn't harm others. The implementation of UCC in India, thus, would aim at ensuring legal uniformity, not enforcing cultural or religious conformity. It is an attempt to balance the rights of individuals to practice their personal beliefs with the imperative to uphold equal rights for all citizens under the law.
Before venturing into the arguments in favor of UCC, let us first understand what it is. Article 44 of the Indian Constitution stipulates, "The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India." Even though India already has a uniform criminal code applicable to everyone within its jurisdiction, as well as several uniform statutes such as the Contract Act, the Transfer of Property Act, and the Civil Procedure Code, the Uniform Civil Code referenced here is distinct. This code is primarily concerned with personal laws dealing with marriage, divorce, inheritance and adoption, demonstrating the specific area it aims to standardise.
Almost all aspects of a UCC fall under Entry No. 5 in the Concurrent List, covering marriage and divorce, matters concerning minors and infants, adoption, wills and succession, joint family and partition, and all matters which were subject to personal law before the constitution was enacted. Consequently, both state assemblies and the union government have the power to introduce the UCC, should they wish to. It has been reported that states such as Gujarat, Uttarakhand, and Assam are making strides towards the implementation of the UCC.
Why should a UCC be introduced in India? A central argument in its favour is the promotion of gender equality. The lack of a UCC can lead to instances where personal laws adversely affect women, prompting them to appeal to the Supreme Court to uphold their fundamental rights to equality and liberty. The UCC can work towards eliminating such gender discrimination inherent in personal laws, thereby promoting gender justice, equality, and the dignity of women.
The pursuit of gender equity in the Constitution can be traced back to Article 14, which decrees that the state will not deprive anyone of their entitlement to legal equality and equal protection within India. This is further fortified by Article 15, which prohibits the state from showing bias against any citizen on the basis of religion, race, caste, gender, place of birth, or any combination. To ensure the successful implementation of these provisions for equality, Article 13 pronounces all "laws in force" in India at the onset of the Constitution null and void if they clash with this part. Upon cursory examination, Articles 13, 14, and 15 seem to promise equal standing for women and men, invalidating religious personal laws that may be incongruous with the tenets of equality, particularly those laws existing during the Constitution's inception. Nevertheless, the legitimacy of religious personal laws vis-a-vis the Constitution is murky territory in the realm of Indian jurisprudence. This ambiguity seemingly contradicts the intended spirit of Articles 13, 14, and 15, implying that the absence of a UCC might be seen as a violation of these constitutional provisions.
The problem is that across all personal laws, some aspects end up unfairly impacting women. For example, inheritance. The apparent disparities in religious personal laws in India regarding women's inheritance rights warrant a UCC. This claim becomes even more compelling when we look at the state of women across different religious communities.
In Muslim Sunni and Shia law, there is a distinct gender-based imbalance, with women entitled to only half the inheritance that men receive. Similarly, Christian women, under the Indian Succession Act, inherit only one-third of the property, although sons and daughters share their parents' property equally.
Let's turn our attention to Parsi law, which, despite amendments in 1991 guaranteeing equal inheritance to sons and daughters, continues to showcase discriminatory practices. Both Parsi women marrying outside their community and non-Parsi women marrying into the Parsi community face severe inheritance restrictions.
Looking at the Hindu Succession Act, it becomes clear that even legislative amendments for progress, such as the 2005 change granting daughters an equal stake in joint family property, are insufficient. Should a Hindu woman pass away intestate, childless, or spouseless, her property is prioritized for her husband's heirs, then her father's, and finally, the heirs of her mother.
These entrenched discrepancies across religious laws underscore the need for the UCC, and providing a single, secular legal framework that ensures equality, eliminating gender-based biases in inheritance rights.
The UCC would aim to provide equal status to all citizens by ensuring that everyone is governed by the same set of civil laws, irrespective of their religion, caste, or community. This principle aligns with the Constitution's mandate, as reflected in Article 44, that the state shall strive to secure a UCC throughout the territory of India. In a speech given at the India International Centre on January 4, 2005, as part of the Renuka Ray Centenary Memorial Lecture, Justice Leila Seth referred to a notable quote from Acharya Kriplani. This quote from Kriplani is worth reading. He originally voiced these words during the period of 1955-56, a time when Hindu Personal Laws were undergoing significant reforms.
"We call our state a secular state-A secular state goes neither by scripture nor by custom. It must work on sociological and political grounds. If we are a democratic state, I submit we must make laws not for one community alone. Today the Hindu community is not as much prepared for divorce as the Muslim community is for monogamy...Will our government introduce a Bill for monogamy for the Muslim community? Will my dear law minister apply the part about monogamy to every community in India? I tell you this is the democratic way. It is not the Mahasabhaites alone who are communal; it is the government also that is communal, whatever it may say. It is passing a communal measure. You shall be known by your acts, not by your profession. You have deluded the world so often with words. I charge you with communalism because you are bringing forward a law about monogamy only for the Hindu community. You must bring it also for the Muslim community... the Muslim community is prepared to have it but you are not brave enough to do it."
The Supreme Court, through various judgments, has also called for a UCC. The Supreme Court has persistently prompted the parliament to consider implementing the Uniform Civil Code through its various rulings. An instance can be seen in the case of Jose Paulo Coutinho vs. Maria Luiza Valentina Pereira & Anr. (2010). In this, Justice Deepak Gupta remarked on the lack of progress toward establishing a UCC despite the court's previous urgings in cases like Mohd. Ahmed Khan vs. Shah Bano and Sarla Mudgal & Ors. vs. Union of India & Ors. In the Sarla Mudgal case, the Court emphasized the unification of traditional Hindu law into a single codified system covering a majority of the population. It questioned the justification for deferring a uniform civil code for all citizens, given that a significant part of the population was already governed by codified personal law.
One should also mention Goa's Uniform Civil Code, which represents a model of legal uniformity, despite not covering all areas an ideal UCC should. It treats all religions equally and upholds certain specific rights. On December 22, 2016, a key reform replaced parts of the Portuguese Civil Code with the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012, mainly in matters of family assets. Marital property laws in Goa require equal ownership of assets acquired before or after marriage, allowing each spouse to claim half in case of divorce. It also allows for pre-nuptial agreements. Half the property must legally pass to the heirs, applicable even to self-acquired properties, resembling the 'coparcenary' concept in Hindu law. The UCC also bans polygamy for Muslim men for marriages registered in Goa. Other states should learn from this example.
It is essential to remember that the struggle for a Uniform Civil Code is not one of homogenizing diverse cultures or infringing on individual religious freedom. Instead, it is a quest for gender justice, equal rights, and a shared sense of citizenship, irrespective of religious affiliation. While not without its shortcomings, the Goa model provides a viable template for the broader implementation of a UCC in India, offering a semblance of what a balanced, secular legal framework could look like. The discourse on UCC should go beyond the binary of tradition and modernity or religious freedom and state intervention. We need to see it as a necessity for equality, an instrument for social justice, and a constitutional promise that needs to be fulfilled. This might be the way forward to ensure that laws do not remain the frozen script of what was once just but become the living voice of what is just now.
Bibek Debroy is the Chairman, Economic Advisory Council to the Prime Minister (EAC-PM) & Aditya Sinha is Additional Private Secretary (Policy & Research), EAC-PM.
Disclaimer: These are the personal opinions of the author.