Uniform Civil Code (UCC): a critical step for unity

It will be very interesting to see how the Congress MLAs in Assam will react to the UCC Bill that Dr. Himanta Biswa Sarma is certain table on Legislative Assembly. Assam Chief Minister Himanta Biswa Sarma emphatically stated in the Assembly a few years that his government would introduce the UCC through the "front door," clarifying that the UCC would not interfere with traditional practices and rituals. Earlier the Chief Minister announced Assam's intention to become the third state, following Uttarakhand and Gujarat, to propose legislation for the UCC. In a significant stride towards this goal, the Assam Cabinet repealed the outdated Assam Muslim Marriage and Divorce Registration Act of 1935. Consequently, all matters concerning Muslim marriages and divorces would now be governed by the Special Marriages Act. The timing of this implementation has been long overdue, as the ramifications of maintaining separate, discriminatory laws for a segment of the Indian population have become increasingly apparent. The so-called minority population has seen a notable increase from 24.5% in 1971 to 34.2% in 2011, altering the demographic landscape and marginalizing mainstream Assamese communities in various regions of the state. This demographic shift poses a threat to their democratic rights. Rather than addressing the legitimate concerns of indigenous Assamese people, the Congress government imposed the IMDT Act, which served as a shield for illegal migrants. The repeal of this act in 2005 was deemed necessary due to its threat to national security. The settler Muslim community now holds significant sway not only in the state's political affairs but also in its economy. Customs such as polygamy and child marriage, prevalent among certain sections of the Muslim community, are believed to have contributed to their population growth. Nine districts have already been identified as Muslim-majority districts based on the 2011 census data, including Goalpara (57.5%), Dhubri (79.6%), Bongaigaon (50.2%), Barpeta (70.7%), Darrang (64.3%), Nagaon (55.3%), Morigaon (52.5%), Karimganj (56.3%), and Hailakandi (60.3%).

The diversity in India is many, but forces of unity are very few. Indians seem united through currency, national anthem, cricket and sometimes cinema. In such a diverse country having personal laws based on religion is again a divisive force. Laws were made based on society, culture, climate and economy. The kingdoms or communities who were continuously fighting allowed polygamy to balance the sex ratio, such as in the Arabic region. But with modernisation situations have balanced in most of the world and it is imperative to welcome laws that are uniform for every segment of people. Countries around the world started to take up UCC for numerous advantages, such promotion of equality, social cohesion, legal certainty, reduced litigation, women empowerment, true sense secularism and many more. The creation of a uniform civil code was seen as a hallmark of modernity by non-Western countries, and most adopted such codes in the 19th and 20th centuries, such as the 1896 Civil Code of Japan and the 1926 Turkish Civil Code. Several Muslim-majority countries, such as Turkey, Tunisia, and Azerbaijan, have uniform civil codes. These codes abolished legal distinctions between separate socioeconomic, ethnic, and religious classes of people. According to eminent historian Romila Thapar. “Religion impinges on every human right in the civil law, whether its birth, death, marriage, divorce, the religions have laws on all of these,” and Secularising India has to begin with a uniform civil code that ensures equal rights to all citizens without exceptions so making India secular necessarily means demarcating religion out of our social institutions. India still does not have a UCC because, If a UCC is made, a single set of laws will apply to all the citizens irrespective of one’s religion, especially concerning marriage, divorce, adoption, property, maintenance and inheritance, etc.

Indian constitution makers tried hard to put a UCC as the key ingredient of the constitution. Bhimrao Ramji Ambedkar. who said: “I do not understand why religion should be given this vast, expansive jurisdiction, to cover the whole of life and to prevent the legislature from encroaching upon that field.” However, it proved difficult to gain the support of any community for reform, particularly the Muslim community, who sought to preserve their distinct customs. This resulted in putting uniform civil code just as a piece of decoration in the constitution as article 44, which states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The Constitution came into force in 1950. Since then, Article 44 has been gathering dust with no government at the Centre ever having any guts and wisdom to touch it. Figuratively speaking, it has remained a dead letter. Our first prime minister from the Congress Party was successful only in imposing reformed Hindu personal codes based not on the Hindu shastras, but mostly on Western principles without reforming Muslim and Christian law. Again Congress Law Minister M Veerappa Moily in 2011 had clearly stated that his Government (Second term of Dr. Manmohan Singh led Congress Govt.) would not touch the issue of uniform civil code as it would involve changes in the personal laws of all the people, especially the minority communities.

It is true that drafting a UCC in a country as complex and diverse as India will be difficult, but greater movement, education, and modernity have probably driven a convergence in lifestyles and expectations throughout the population. The demand for a uniform civil code has acquired communal nuance which has overshadowed the intrinsic merits of the proposal. India unlike other nations is an amalgamation of diverse cultures and consists of people who follow their own distinct faiths, religions, customs and traditions. UCC once uttered opens up a Pandora’s Box and a plethora of emotions. The nation either starts whimpering or bursts into hysterical jubilation. There are many aspects to this issue mainly a few being, political, social or religious. Politically the nation is divided into two factions, on the one hand, the BJP and RSS that strongly crusades for the UCC and on the other hand the Congress, which though it has been in power for over forty years has shockingly failed to implement anything as such. Socially, the common masses that fluctuate from one point to another, are unsure of the benefits of a system in a diverse polity that is India. Religiously, the division between the majority Hindus and the minorities dominated by Muslims is always a factor to be worried about.

The Indian judiciary has time and again through various judgments directed the parliament to look upon the implementation of a common uniform civil code. The landmark case with regards to uniform civil code was the first of the many observations made in the case of Mohammad Ahmed Khan v. Shah Bano Begum (1985) popularly known as the Shah Bano case. In brief, the facts of this case dealt with a frugal Muslim woman, Shah Bano Begum who was divorced by triple talaq by her husband. She thereafter claimed for her maintenance from her husband under Section 125 of the Code of Criminal Procedure. The Supreme Court held that the Muslim woman had a right to get maintenance from her husband under Section 125. Chief Justice of India Y.V. Chandrachud (1978–1985) observed that “A common civil code will help the cause of national integration by removing disparate loyalties to the law which have conflicting ideologies.”

In a survey by Mumbai-based Bharatiya Muslim Mahila Andolan found that in over 63% cases Mehr amount fixed at below Rs 5,000. As awful as that may sound, a few religious scholars are offering themselves up for one-night stands with divorced Muslim women trying to save their marriages under a disputable Islamic law, an India Today investigation has found. They charge anywhere between Rs 20,000 and Rs 1.5 lakh to participate in nikah halala, a controversial practice that requires a woman to marry someone else, sleep with him and get a divorce again in order to be able to remarry her first husband under personal laws, the probe discovered. Uniform civil code can help the Muslim womens to discard such practices which otherwise religiously forced upon them and lead a dignified life without fear.

Another case which sparked the need of uniform civil code was Sarla Mudgal v. Union of India, in which the Supreme court dealt with the issue of bigamy and conversion to Islam for the purpose of contracting a second marriage. The court clearly stated that a Hindu husband cannot sanctify a second marriage while his first marriage still exists, even after converting to Islam. This case emphasized the necessity for a uniform civil code to discourse subjects related to marriage and personal laws.

India is a sovereign, socialist, secular, democratic, republic. This means that the State does not have a religion of its own. The UCC, therefore, has been interpreted by its opponents to mean a common state religion, and thus it goes against the soul of the preamble and the freedom of religion as mentioned above. They are mistaken in that the state though irreligious is not anti-religious. The UCC will not hinder man’s belief. It will not interfere with the mundane monotonous activities of day-to-day life. The doctrine of secularism as accepted in other country states like America and Europe is one that completely does non-interference in matters of religion. It has to be understood that these countries have undergone a completely different evolutionary process consisting of renaissance, reformation and enlightenment. In India, there exists a concept of “positive secularism”. The onus lies with the state to ensure that religion is not an impediment to the overall progress of the nation. Thus the UCC is not opposed to secularism and will not violate Article 25, 26. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, the law can regulate them.

To really implement the Uniform Civil Code in India, one suggestion would be that new uniform family law should or could be created by Parliament for all Indians totally unworkable in practice. Formally enforced legal uniformity can hardly lead to the situation-specific justice that the systems of dharma, Nyaya and Shariat in their idealistic ambitions all sought and seek to achieve. If the British could enact a few uniform personal laws in India like Guardians and Wards Act, 1890; Indian Succession Act, 1925 and Child Marriage Restraint Act, 1929, why the present government of India representing all the religious communities cannot enact a uniform civil code for all the Indians. So, the government of India should take initiative for enacting a uniform civil code, which should contain the best elements of different civil laws of the various religious communities of the country and thus fulfil its positive obligations imposed upon it by Article 44 of the Constitution of India. The government must prepare a good environment for Uniform Civil Code by explaining the contents and significance of Article 44. It should take steps and find out means to fight obscurantists who oppose the move of the Uniform Civil Code. A conservative section of the citizens must be made to understand the utility of uniformity of laws so that they do not stand in the way of implementation of Article 44 of the Constitution.

By abolishing the Muslim Personal Law and implementing the Uniform Civil Code, the state has an opportunity to set right a historical wrong. The role of law is to protect the rights of citizens, not to limit them or impinge upon them. When the law itself is used to justify and commit crimes, it is called “lawfare”. When the law becomes an instrument of injustice, it loses its purpose in society. The Muslim Personal Law is one such law. It places India a hundred years behind. The law enables Muslim men to marry more than one woman without any recourse or justice for the women who are trapped in a marriage where they are merely an object. It discriminates against Muslim women and limits their rights to ask for justice, purely on their religious identity. This type of lawfare has no place in a progressive country like India. Though there has been much noise about the Uniform Civil Code and the abolishment of the Muslim Personal Law, the fact remains that those Muslims who are already progressive and not misusing this law to limit the rights of women will not have a problem with the abolishment of the law. The rabble rousers are typically those who are already misusing this law, or plan to misuse this law to mistreat women. At a time when the world is moving towards greater gender equality in every sphere of society, law should not just be allowing a space for gender equality but leading the movement. The ire of misogynistic men cannot be used as a justification for the existence of this law. The time is now ripe to do away with patriarchy and bring about greater inclusiveness in society, to truly claim India’s spot as a progressive and ascending economy of the world. Meanwhile, Articles 25-28 of the Constitution guarantee the right to freedom of religion to not only individuals but also religious groups. It expects the State to apply directive principles and common law while formulating national policies. Overall, implementing a Uniform Civil Code in India has the potential to promote equality, justice, secularism, and socio-economic development while fostering national unity and upholding fundamental human rights principles. However, it's essential to approach this issue with sensitivity and ensure that any proposed UCC respects the diversity of India's religious and cultural heritage.