Uniform Civil Code vs Personal Law: How 'Same Family Rules for All' Will Benefit Women | Explained

Uttarakhand Chief Minister Pushkar Singh Dhami on Saturday promised to implement the Uniform Civil Code in the state if the Bharatiya Janata Party retains power after the assembly elections 2022 and forms the government again. “The UCC will boost equal rights for everyone in state. It’ll enhance social harmony, boost gender justice, strengthen women empowerment and help protect the extraordinary cultural-spiritual identity and environment of the state,” Dhami said.

The UCC promise has been brought back to the fore by the saffron party soon after a row erupted in Karnataka over ban on Hijab in government educational institutes and protests broke out across states where Muslim women took the lead to demand their “right to education” in keeping with their “right to choose” to cover their heads with headscarves according to their faith.

A Uniform Civil Code for India is one of the political articles of faith for the BJP and was part of its 2019 election manifesto. The need for one has been argued on the grounds that it will promote homogeneity and unity in India.

Goa is the only state in India where all communities, including Hindus, Muslims, Christians, are governed by the same law when it comes to marriage, divorce, succession, etc. because though the state became a part of the Indian union in 1961, the former Portuguese colony decided to continue with the Portuguese Civil Code of 1867 for all communities in the state.

POLITICAL REATIONS TO UCC PROMISE

Amit Malviya, the BJP’s national social media incharge, took to Twitter to react on Dhami’s promise. “Uttarakhand CM announces BJP’s decision to implement Uniform Civil Code in Devbhoomi after elections. Uttarakhand will be the second such state after BJP ruled Goa to do so. On the one hand Harish Rawat promised Muslim University while the BJP speaks of equality and empowerment,” he said.

BJP’s national general secretary BL Santosh said that UCC in Uttarakhand is “huge”

WHAT IS UNIFORM CIVIL CODE?

Matters like marriage, inheritance, adoption, succession, etc. are governed in India according to the personal laws of the various religious communities. That is, Hindus have their own marriage laws and Muslim marriages are governed by the community’s personal laws. The same is the case with Parsi and Christians who, too, have separate personal laws governing these matters.

But separate laws for the different communities has for long been seen as contributing to legal and administrative complexities and, as the Delhi HC noted, creates grounds for “issues arising due to conflicts in various personal laws”.

The founding fathers of the Indian republic had anticipated these issues and, although they did not do away with the different personal laws that had been introduced by the British when they codified laws for India, they inserted an article in the chapter on Directive Principles of State Policy that makes up Part IV of the Constitution of India.

Article 44 says that the “State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. However, its presence in the said section means that Article 44 is not mandatory and it is up to the Parliament to make a law to bring in UCC. That is because Article 37 says that the “provisions contained in this Part (Part IV) shall not be enforceable by any court… and it shall be the duty of the State to apply these principles in making laws”.

However, though not enforceable such as they are, the directive principles are to be deemed as being “fundamental in the governance of the country”.

Dr BR Ambedkar, the first Law Minister of India, hence, held that while UCC was desirable, its application should be put off till a more suitable time.

More recently, however, the Law Commission in a 2018 report observed that a UCC “is neither necessary nor desirable at this stage” for India. The reason it cited was that a diverse country like India has to have separate laws to respect the needs of all its people and bringing uniformity would actually serve to complicate matters more than simplify them.

“Constitution itself has given so many exemptions to so many people like the tribals, etc. There are exemptions even in Civil Procedure Code and Criminal Procedure Code… UCC is not a solution and there cannot be a composite Act,” it had said.

WHY IS GOA AN EXCEPTION?

Courts in India, including the Supreme Court, have time and again questioned why a UCC is yet to be introduced when the framers of the Constitution themselves had laid the ground for one by including it as a directive principle. The top court has also in several orders, including in the Shah Bano case of 1985, called for the enactment of a UCC.

“It is interesting to note that whereas the founders of the Constitution in Article 44… had hoped and expected that the state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard,” a division bench of SC had said in its order in a case in 2019. In the same judgment, it remarked that Goa is a “shining example” with a UCC “applicable to all, regardless of religion except while protecting certain limited rights”.

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