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Is India’s Uniform Civil Code a fair system?

In India, different religious communities are governed by their own laws on marriage, divorce, inheritance, adoption, etc. Yet, the ruling party has promised to bring into force a uniform civil code, whereby all these communities would be governed by a single law. 

Article 44 of the Indian Constitution says: ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’.

Since the ruling Bharatiya Janata Party (BJP) came to power, they have promised to enforce a UCC across India.

This announcement has been met with strong opposition from religious minorities, especially Muslims, who fear that this policy is one driven by majoritarianism at the cost of minorities losing their religious integrity.

However, this issue is contested not just among religious communities, but also among legal institutions; the Supreme Court of India has called for a UCC to be implemented in multiple judgements, whereas the Law Commission has said that to do so would be ‘unfeasible’ and ‘undesirable’.

Yet, before picking sides on this debate, it is essential to look at the history surrounding UCC.

How did the UCC come into being?

When the British ruled over India, they created different sets of laws for religious communities with the help of Hindu priests and Muslim clerics.

This way, they formed Sir Thomas Strange’s Elements of Hindu Law, the Shariat Act of 1937, and the Dissolution of Muslim Marriages Act of 1939, among others.

When opposition to these personal laws grew, it was mainly against the patriarchal aspects of Hindu law. This was because as per Hindu law, women were not allowed to divorce their husbands, polygamy was not outlawed for men, and daughters did not have equal inheritance rights.

When India gained independence from the British, there was a discussion amongst legislators on whether or not to do away with the personal laws.

On the 28th of March, 1947, the motion to include UCC among the fundamental rights was raised in the sub-committee of fundamental rights for the first time by M. R. Masani. However, this motion was rejected by other sub-committee members by a vote of 5:4.

The reason for this dismissal was grounded in the fact that India would host a wide variety of religious communities; many leaders felt that maintaining harmony between these groups was synonymous with allowing them to determine their own affairs.

And, contrary to popular belief, this opposition did not just come from the Muslim minority- but also from conservative Hindu leaders who did not support reforms to Hindu law.

Regardless, the same year, K.M. Munshi made a powerful statement in favour of the UCC in the Constituent Assembly:

‘Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India.’

However, Muslim leaders such as Mohamed Ismail Saheb argued that the people of India were accustomed to certain religious practices which were an integral part of their life and cannot be dispensed with.

Furthermore, Naziruddin Ahmed suggested that any changes to personal laws must be gradual and with the consent of religious communities.

To this, BR Ambedkar, then Law Minister, clarified that they were not pushing for immediate amendments to personal laws but instead, the mere power to legislate in these matters. He also famously said that if any government acted in a manner such as to provoke Indian Muslims to rise in rebellion, it would be a ‘mad government’.

UCC vs Personal Laws

A major argument made in support of UCC is rooted in the notion of gender justice.

The Hindu law did not have a provision for divorce until it was reformed in the 1950s by the Constituent Assembly of India. In another case, the Muslim personal law, did not outlaw the practice of ‘triple talaaq’ or instant divorce until an act was passed by the parliament in 2019.

This means that until 2019, all married Muslim men had the liberty to divorce their wives at any point of time by simply uttering the word ‘talaaq’ (divorce) three times.

Nevertheless, this also shows that personal laws can be amended in the parliament without being abolished, retaining the positive aspects of it.

Still, it is true that any such reforms made to personal laws are often met with uproar from the relevant communities- as the aforementioned triple talaaq bill was, even if the reforms are made on reasonable grounds. This makes it difficult to make a series of changes to personal laws.

And, this brings us back to the question of who is right and who is wrong.

While some leaders in the Constituent Assembly of early independent India argued that personal laws were misogynistic and thus, needed to be done away with, others asserted that the cultural integrity of citizens would be at stake.

Both sides may seem equally reasonable, but in my humble opinion, the key to ethically enforcing the UCC lies in the consent of religious communities and the intentions of the government enforcing the policy.

So should personal laws be abolished for being misogynistic or should they simply be amended to root out the negative aspects?

Should the Uniform Civil Code be viewed as an attempt to unify the nation or a tool to oppress minorities?

Should we be the ones to implement the code or leave it up to future generations?