Uniform Civil Code are laws that are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. In India, these personal laws differ from each major religious communities on the basis of customs and scriptures. Hence, there has always been a debate on the need for Uniform Civil Code in India. In this article, Shivam Mittal provides a detailed insight into the history of Uniform Civil Code in India.
The notion of a Uniform Civil Code has, for as many times entered debate as it has been swept behind the drapes. Its banner men, dead or dying, have been around for as long as has its opposition been but neither has for as much as I can confirm, driven a defining blow. Its implementation sits as much in debate as it did about half a century ago. While it is imperative to focus what it brings with it, its virtues and its vices, it is also very important that we find searching through history, how the personal laws came to separated in the first place and why the British, to whom we stand in debt to for much of the law, did not run a uniform law for the colony when all of it began.
East India Company, an out and out profit aimed organization, hit Indian shores in the 17th century and such course did time take, that a mere profit centered organization used as an instrument by the British crown otherwise, came to colonize a country of India’s size and muscle. Company’s primary agenda was making economic gains and effectively control India with minimal military expenditure, and while it had devised ways to achieve the first, the second it realized could only be achieved by implementing law. The Hastings Plan of 1772 established the system of civil and criminal courts which were charged with the duty to see that the native norms, as interpreted by the maulavis and pandits, were applied as the law and used to exact judgment in suits regarding inheritance, caste, marriage etc., and by the early 19th century the system of courts had been expanded.
As much as the company evolved the criminal and civil legal system, codifying it and bringing new laws, it opted out of delving into the issue of personal laws as it realized it was a sensitive issue and which would incite the religious leaders and groups, a risk, the company was not willing to take, given that doing so would in no direct way help positively, the company with the goals it had otherwise to be mindful of. Since then to now, the issue of a uniform civil code has always been in contention. The company’s stance is fathomable, it being a profit centered organ, only concentrated on what was in its best interest and not in the interest of its colony or the people of the colony, but why should a government, mind, a government whose best interest lies in the uplifting and the betterment of the people and those who it governs, not codify the personal law by the means of a Uniform Civil Code which stands to benefit more to the people than it deters them?
The argument against such code mainly rests upon the notion that all religions are special and they deserve the individuality and the freedom to be professed, but does it not mean they all are equal in way of choice and to law, and if all of them are already equal, why must be it ‘problematic’ and ‘suppressing’ bring the subjects professing each religion at par too? Why should a Hindu woman be entitled to more in law and in religion than, say, a Muslim woman? The question here we are dealing with is, what essentially would be a ‘moral society’ or ‘just society’. I agree that what may seem just to me may not seem just to another, to illustrate, there are two men, both farming the same land, and while one works hard, the other hardly works. If the question may be asked of how must they be paid, should they be paid equally? Or should the payment be made appreciating individual effort? What would be ‘just’ is the question that one tends to ask; but can one decide what is just?
In this scenario one may advocate for equality as the just thing to do, while the other may push for justice in its truer sense. Say the state agrees to equality as being the just ideal, but can this be held to be just for every society that may be in question? The dilemma here is that there can never be a definite answer for what is ‘just’ which could prove universal to all forms of society and whether a society is ‘just’ within its meaning cannot be judged from an outside perspective as it is the ideal of only those who are included in that particular society, as the question of what is ‘just’ is determined by the populous.
In a Marxist society, all the judicial concepts belong to and are advanced by the class that controls the means of production (governs the superstructure). Thus in this society, the just law is going to be the question of what those who sit in the superstructure think is the just law. Exploitation of the serfs (the labor) is just in a capitalist mode of production but unjust in a communist mode of production. Thus, for every society what is just is what the majority of the society or whoever controls the law thinks is just. But looking at the nation as a whole and the varied societies that make it whole, it seems only necessary to find them a uniform law, a code, with which they could identify and which leaves no one feeling unequal and for a lot of other reason that I shall discuss in this paper.
Gender equality across religions is one cry that is only getting louder and it is imperative to evolve and reform the many prevailing personal laws to bring them at the same level as the standard prevailing at larger international and national front; where gender equality is a mission close to achievement; how can Indian society be allowed to be left behind? Divorce, inheritance, property and maintenance among others are issues where the law seems lacking and particularly regressive to woman, especially in Khap societies and Muslims. Article 14 of Indian constitution maintains, ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India and prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’, then why are Muslim women bereft of the same rights as available to Hindu women.
While a proper and fair legal procedure is in place if a Hindu couple seeks divorce, the same cannot be maintained when looking how easily it is for Muslim men to do away with their wives and women. Justice Katju highlights this discrimination against the women in one of his articles, iterating that –
(1) A Muslim husband can get a divorce immediately without going to court by immediately pronouncing a triple talaq or even sending a letter mentioning the triple talaq, whereas the wife who seeks divorce has to go to court and file a petition which usually takes years to decide
(2) The Muslim husband need not give any ground for divorce, he can divorce his wife whimsically or merely because he has lost interest in her, whereas a Muslim wife has to plead some ground for divorce mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939, and she has to produce witnesses or documentary evidence in support of that ground, and prove it. This is not only very unjust to the wife, it is also violation of Articles 14, 15 and 21 of the Constitution.
India, being largely a patriarchal society finds its opposition to the Uniform Civil Code also due to the fact that implementing a uniform civil code would deal a blow to the male dominant system, which has been tailored over time to unfairly put men at an advantage over their female counterparts, by empowering women and granting them more freedom than otherwise permitted within the spheres of personal laws. This is a very plausible scenario where law may indeed seem to favor one group and this argument is also used by the minorities to contend that a Uniform Code would essentially be the majority rule. Mormons are a particular culture in the US which has been known to practice polygamy and historically their practices were/are deviations from those of Catholics and the mainstream Christians. The Catholics gained control of the churches across the states and sent down laws conforming to their practices, which in turn set down monogamy as the morality. This saw the Mormon community ousted and alienated and even punished under the new law, which deemed them immoral.
Critical Legal Theorists also in their work argue that the apparent neutrality and impartiality of law in reality works to benefit and protect interests of the wealthy and the powerful; impressing that the law tends to protect them against the demands of the poor and the subaltern (women, ethnic minorities, the working class, indigenous people, the disabled, homosexuals, etc.) for greater justice. But this apparent reality can be very easily dealt with if the law is set by either unbiased or neutral framers or collectively by all the societies, minor or major.
Another argument raised is the loss of identity, in the stead that when everyone will be directed to follow a common set of rules, certain communities will have to leave behind their indigenous norms and customs, thus implementing a loss of culture and identity. This is as further to the truth as can be. A uniform civil code would not touch too deeply the cultural and indigenous norms which have been existent, but only provide a contour for societies to exist within, and while focusing on rights it will leave the rituals embodied in personal laws intact.
S.P. Sathe contending for personal laws argues India being a federal structure already has ‘multiple legal systems’ and no one is calling for an end to the federal structure of government, then why must multiple personal laws be any different. My views do not converge with those of S.P. Sathe and first and foremost the reasons for implementing a federal system cannot be used to vouch for allowing different personal laws to exist. The sole basis for my assertion is the simple fact that even though the citizens are subject to different laws made by the State and Union or are governed under the different provisions of law, these laws still are guided by the Constitution which principally is common to every law making mechanism in the country. The Constitution guides all the questions and enactments on law and acts as a limiting circumference within which the law can function however it may but any infringement of this boundary would leave the law void. The design of the UCC that has been proposed is also very similar if not same. It does not interfere with any personal law or cult or culture existent in the society and allows each community to function on its own accord as long as it did not infringe the larger principles set by the frame that UCC would be.
Codification, if anything at all, would first and foremost ensure a uniform and just decision making irrespective of a person’s religion, cast and creed. In the contemporary scenario, it is imperative for the evolution and development of the masses that the blocks to individual freedom and development of society that the Khap Panchayat’s and Fatwas are, be done away with. We must move away from appeasement politics and truly look to the advancement of Indian culture and society. Thus, there should only be one law making authority and a uniformity in legal discourse and structure; if anything, codification is only going to be a boom and not bane for the country.
 Madhu Kishwar, “Codified Hindu Law Myth and Reality”.