The debate on Uniform Civil Code can be divided into three parts, the British colonial era, the Nehruvian/Congress era and the post-rise of BJP or current era. While India was under British rule, serious consideration was never paid to the Uniform Civil Code because Britishers, predominantly, were concerned with two main subjects, “Crime” and “Revenue”, to maximise revenue and to have uniform criminal laws to control the population and effectively govern India.
In line with their needs, they brought in Uniform Criminal Code, for example, the Indian Penal Code, 1860 and the Indian Evidence Act, 1872, and uniform commercial laws like Indian Contract Act, 1872, Specific Relief Act, 1877, and so on.
The field of personal law, which includes marriage, inheritance, divorce, maintenance, guardianship, and so on, of Indians, was not a priority for them and these matters were largely left to the field of personal laws of both, Hindus and Muslims.
Our Constitution came into effect on January 26, 1950, wherein Article 44 mandates a Uniform Civil Code. Article 44 states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
It is germane to point out here that as per Article 37, the Directive Principles of State (DPSP)—such as the one contained in the said Article 44—though unenforceable in the Court of law, are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
When the Constitution of India came into force, Hindus, as well as Muslims, were governed by their personal laws. In my opinion, under the Constitution, it was naturally imagined that to further the aim of Uniform Civil Code, all personal laws would be codified together, the Hindu Code Bill and the Muslim Code Bill would come together in the form of a Uniform Civil Code.
However, in reality, Hindu Personal law was done away with by enacting the Hindu Code Bills in the mid-1950s, that is, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956. These laws were not a mere codification of Hindu law, but also an abrogation/revocation of many Hindu practices and traditions. Whereas, the Muslims continued to be governed by Muslim personal law, which is largely driven by the opinion of Muslim Community leaders.
During the debates on Hindu Code Bill in Parliament, J.P. Kripalani (a Socialist Leader) raised the argument that similar to the Hindu Code Bill, a Muslim Code Bill shall also come into force in order to, among others, empower women and bring them into the modern era. He accused the Congress government of being communal as it was bringing a law on monogamy only for Hindus and not Muslims.
Similarly, Dr Rajendra Prasad, then President of India, vehemently opposed the Hindu Code Bill on the premises that unilateral and arbitrary decisions on the enactment of such laws cannot be taken without taking into consideration the opinions of the masses and there had been widespread opposition among the Hindu community vis-à-vis the Hindu Code Bill. He even threatened to refuse to sign the law which resulted in major confrontation between then Prime Minister and then President of India.
Prime Minister Jawaharlal Nehru did not pay any heed to such objections and stated that time was not yet right as Muslims were not ready for reforms and, in a dictatorial manner, passed the Hindu Code Bill while leaving Muslims to be governed by their personal law. This preferential treatment in the Nehruvian era of letting one community be governed by their personal laws while stripping the other of the same, is the antithesis of secularism.
The Supreme Court has always suggested the need for Uniform Civil Code. In Shah Bano judgment, the Supreme Court made the following observations:
“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter… A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”
Similarly, the Supreme Court in Sarla Mudgal judgment expressed its disappointment over the attitude of the government, with special reference to our first PM Jawaharlal Nehru for not bringing the Uniform Civil Code. It observed:
Pandit Jawaharlal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said “I do not think that at the present moment the time is ripe in India for me to try to push it through”… When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India.
The most egregious harm of not having UCC is felt by Muslim women. There has been significant empowerment of Hindu women by way of various legislations. For instance, the 2005 amendment to Hindu Succession Act granted the right to Hindu daughters to have a share in coparcenary property. Unfortunately, Muslim women have not been similarly empowered with regard to different spheres of personal law, like marriage, divorce, maintenance, inheritance, succession, guardianship and custody matters. Although under the BJP government, a significant change in the position of Muslim women has been brought about by the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which has banned the anti-women practice of “Triple Talaq”, it needs to be go further to ensure empowerment of Muslim women, which has long been denied.
OPINION: Uniform Civil Code Can End Systemic Discrimination under Personal Laws
It is ironic that even after the passage of over 70 years since the Nehru government stated that the Muslim community was not prepared for the Muslim Code Bill, the right time to pass the Muslim Code Bill has not yet come to date, and may never come. We cannot continue with a situation where preferential treatment is given to one community to be governed by its personal laws, in democratic secular India. We have to fulfil the constitutional goal of the Uniform Civil Code. The government should prepare a draft Uniform Civil Code, which after suitable discussions can be passed into law. This will help bring unity, integrity, commonality and certainty of law in the sphere of personal law, just as it exists in the sphere of criminal and commercial law.
There is no right time to do the wrong thing and no wrong time to do the right thing. For the implementation of a Uniform Civil Code, the right time is now.
Ishkaran Singh Bhandari is an Advocate and a Public Speaker. The views expressed in this article are those of the author and do not represent the stand of this publication.
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