Uniform Civil Code In India - A Threat To Minority Rights And Communal Harmony
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Category: General Law
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UNIFORM CIVIL CODE IN INDIA: A THREAT TO
MINORITY RIGHTS AND COMMUNAL HARMONY
Aziz Umar, Faculty of Law, Jamia Millia Islamia Rayyan Hashmi, Faculty of Law, Jamia Millia Islamia
ABSTRACT
The Sparking debates and deliberation on the Uniform Civil Code (UCC) in India are not new. Far from independence, it has been used by the various political entities as a tactic to misrepresent the Indian population. to achieve their political objectives. This paper tried. to scrutinize its implication on the democratic fabric of India by examining the Historical evolution of UCC, admissibility on the constitutionality grounds by giving great emphasis on the recent enactment of Uniform Civil Code (UCC) in Uttarakhand. Further, this paper advocated for ensuring a balance between the Right to. Equality with Freedom of religion and Gender, a just society with Minority rights & norms. This paper censures the forceful implementation of the Uniform Civil Code because this can create a detrimental impact on the integrity of India.
However, argues to enact it gradually so that all the communities can adopt it through their own will and not through force. Keywords:
UCC,
Uttarakhand, Constitution, Law Commission, Fundamental Rights, Equality.
1. Introduction:
Indian Constitution inevitably mandates the state to attempt to enact a uniform civil code for the territory of India. However, nowhere grants permission to codify all personal law in return for prejudice and disharmony. Moreover, the State cannot neglect the notion of freedom of religion to achieve equality. India must understand the real intention of constitutional drafters regarding the UCC provisions, i. e. whether they want the state to unanimously enact a uniform civil code in one single statute that ignores the interests and culture of minorities and Tribals. Or do they want the state to gradually achieve a gender just society without disregarding diversity and plurality? Recently, Uttarakhand enacted the Uniform Civil Code to establish equal law for all people living in the state.
But they forget that not all people living in the territory of the state are equal, as they belong to different religions and Tribes. So, how can be the same law be admissible for such a diverse kind of population? This paper aims to highlight the Conceptual and Historical overview of the UCC by emphasizing the Constitutional perspective on this provision, also illuminating factors determining the UCC implementation
2. Historical Overview of Uniform Civil Code:
2.1 Evolution of Uniform Civil Code in India:
The idea of UCC is not a new phenomenon its history goes back to the pre-colonial period when in 1835 the government tabled its report which highlighted the need for uniform single codified criminal, evidence, and contract laws because they were encountering extreme difficulty in administering the people of same demography through the different norms, customs and tradition of different religion. The committee report explicitly exempted the codification of personal laws, especially of Muslims and Hindus, in the fear of losing power in the case of interfering with Indian religious faiths and personal laws. 1
2.2 Failure of Hindu Code Bill:
In 1941, to codify the Hindu civil laws, the government established a Hindu law committee 1 Siddharth Singh, “Unravelling the Uniform Civil Code (UCC): Evolution, Implications, and Challenges in Contemporary India,” 4 Int’l J. Crim. Common & Statutory L. 45, 49 (2024), available at https://doi.org/10.22271/27899497.2024.v4.i1a.67.
under the Chairmanship of Sir B. N. Rao. The committee initially drafted two Bills, which include Hindu inter-state succession and Hindu marriage. Further, after a joint committee recommendation, the Rao committee was reestablished to codify the whole Hindu Civil code, which includes uniformity in the provision of marriage, Divorce, Succession, and Inheritance2. The Bill was tabled on 1st August 1946 but it was not enacted at that time and was reintroduced in the constituent Assembly after independence. The bill includes many revolutionary provisions, especially enshrining the women’s welfare provision like the abolition of Polygamy, Legal right of maintenance, and imperative succession and inheritance rights. However, these reforms were not digested by many orthodox high-profile organizations and personalities3.
Massive protests throughout the country were organized against the tabled Hindu Code Bill4especially from extreme Hindu conservative ideology organizations and right-wing political parties. The Hindu Code Bill faced opposition from Dr. Rajendra Prasad, fearing it threatened Hindu rights and national unity. Nehru withdrew it temporarily, and Ambedkar resigned after its defeat. It was later enacted in four parts: Hindu Marriage, Succession, Minority & Guardianship, and Adoption & Maintenance Acts. So, when attempts to bring uniformity in the majority community become such a holistic process and duration of approximately more than a decade and even then, also not able to enact it in uniformity then what can be the possible consequences of enacting uniform civil for all communities of the country?
2.3 Myth of Portuguese Civil Code:
Portuguese Civil Code, of 1867 was viewed as a perfect example of a Uniform and just civil code even by many legal luminaries. However, this code was neither completely uniform nor just code. Distinctions were explicitly created in the code between catholic Christians and
2 Renuka Ray, The Background of the Hindu Code Bill, 25 Pac. Aff. 268, 277 (1952), available
at http://www.jstor.com/stable/2752804.
3 John A. Bannigan, The Hindu Code Bill, 21 Far E. Surv. 173, 176 (1952), available
at https://www.jstor.org/stable/3024109. 4 Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 14 (Part 1), edited by Vasant Moon (1st ed., Education Dept., Govt. of Maharashtra 1995), reprinted by Dr. Ambedkar Foundation, Ministry of Social Justice & Empowerment, Govt. of India (2014), available at https://ruralindiaonline.org/en/library/resource/dr-babasahebambedkar-vol-14-part-i-general-discussions-on-the-hindu-code-bill/.
people of other religions regarding both registration and termination of marriage. Moreover, various unjust provisions like limited polygamy are allowed to Hindu men in exceptional circumstances when the wife fails to conceive the male child even after a decade of marriage. Such provisions are against the constitutional spirit and discriminatory and shall not be viewed as a paramount example of Uniformity and justness 5
3. Understanding the Uniform Civil Code in light of the Indian Constitution:
3.1 Literal meaning of UCC:
Before moving to the constitutional perspective on the UCC, it is very important to understand the essence and purpose of this particular provision. The word ‘Uniform’ may often be confused with the word ‘Common’ while one is the same in all circumstances and ‘Common’ means the same in similar conditions. “Civil,’ is defined according to short Oxford Dictionary and Black Dictionary as something related to personal rights rather than criminal proceedings. ‘Code’ is derived from the Latin word ‘Codex’ which refers to the comprehensive work of statute that governs a huge part of the law and is based on similar principles. Thus, UCC can be defined as any comprehensive legislature that similarly regulates personal affairs.
3.2 Constitutional Perspective on UCC:
Constitutional framers included the provision of UCC with very clear intent. Unfortunately, many misconceptions regarding UCC provoke political exploitation to achieve majority vote Bank. However, Article 44 of the Constitution explicitly states that the State (Definition under Article 12) shall endeavours to secure for the citizens a uniform Civil Code throughout the territory of India. Words like ‘Endeavor’ and ‘Shall’ denote that the constitution mandates the government to take some initiative to enact this code. Shockingly since the enactment of the Constitution, no serious steps like the establishment of a Commission to research on viability of UCC in the Country or any such measures have been taken. This demonstrates that the Uniform Civil Code is only used for political propaganda and Authorities are not interested in enacting the same.
5 "Portuguese Civil Code: The Silent Law That Unites Goa, Daman and Diu," Frontline, The Hindu (Aug. 22, 2023) https://frontline. thehindu. com/the-nation/portuguese-civil-code-the-silent-law-that-unites-goa-daman-anddiu/article67093492. ece (last visited Feb. 22, 2025).
Article 44 is not included in the constitution unanimously. When on the 4th of November 1948 first draft of the constitution was before the Constituent Assembly were presented for further consensus. The UCC found its place under Article 35 of that particular Draft. Moreover, when on 23rd November 1948 members were provided an opportunity to present their suggestions and many members mostly representing the minority communities like Ismail Sahib, Nasiruddin Ahmad, and Poker Sahab made objectionable remarks on this provision. Their main arguments were that this provision of UCC shall violate the right of freedom of religion and also can provoke communal disharmony among minority communities. The other most important remark they made was that it is against the spirit of democracy to interfere in the personal law of any community without the approval of that community. 6 Dr.
Ambedkar addressed the remarks of respective members of the Constituent Assembly by reminding the Constituent Assembly that this provision is only optional and unjustifiable to be the part of Directive Principal of State Policy (DPSP). The State is not mandated to immediately enact any statute pertaining to this code. He also clarifies one more important point: Future legislature will only adopt any statute on UCC after proper consultation and deliberation with all the community members. 7
3.3 Law Commission Report on Reforms of Family Law:
The Ministry of Law and Justice in the year 2016 entrusted one imperative project to the 22nd Law Commission about the ‘Need and Viability’ of a Uniform Civil Code in India. The Law Commission, after a critical analysis of this issue, presented its report in 2018. The report concluded that the main aim of law should be to emancipate discrimination and establish just law for everyone rather than enact a uniform law which is neither acceptable by society nor feasible at this stage of social stratification. The Law Commission, in its report, highlights the desire for change, i.e., to overcome centurylong gender stereotypes and social evils. However, the report was not in Favor of an immediate change in one go and advocated that the change should be brought gradually through the local legislature and judicial pronouncement like in the case of Inheritance rights to Hindu girl T.K.
Tope, Law, Justice and Judicial Process,
JILI
(1983), available at https://www.jstor.org/stable/41856241. 7 B.R. Ambedkar, Constituent Assembly Debates, Vol. VII, 4 November 1948, available at CLPR CAD India, cadindia.clpr.org.in.
children and also in the case of Abolition of Triple Talaq and child marriage through the statute in Hindu Succession ( Amendment) Act,2005, Muslim Women ( Protection of Right of Marriage) Act, 2019 and Prohibition of Child Marriage Marriage Act,2006.
3.4 Battle between the Right to Equality and the Right to Freedom of Religion:
Many advocates of the Right to equality believe that we should not take care of cultural differences already present in when it comes to challenging Human rights. Likewise, propagators of conservatism, cultural stereotypes, and social evils do not want any alteration. Both these ideas are not completely viable for the peaceful existence of society. one has to adopt and reconcile both the notion of Freedom of religion and the right to equality to establish a gender- just society. 8 Codifying personal law should aim to free Indian society from discriminatory customs. However, if a uniform law is imposed it will threaten societal peace, challenge India's integrity and only serve to perpetuate prejudices and make existing communal disharmony worse.
The judgment was made in order to preserve cultural diversity rather than to enforce strict equality and arguing that that should slowly evolve over time through mutual acceptance. Forcing change may lead to disharmony and disrupt society’s peaceful existence.
4. The Uttarakhand UCC: Analysing its provisions and impacts.:
4.1 Overview of the New Code:
The uniform Civil Code has been a ‘talk of the town’ since its implementation in the state of Uttarakhand as the state has become first state of the nation to implement the code, which aims to keep the personal laws of all the religions under a single umbrella. This act has set out to regulate and govern the laws related to succession, marriage, divorce, and live-in relations9. Maintenance, adoption, and guardianship are not taken into consideration in this act because they are already being governed by different provisions of some acts; like the Guardianship by Guardians and Wards Act of 1890 etc. Some provisions of this new act
8 Conflicting Rights: Equality or Religious Freedom?, Deccan Herald (Oct. 15, 2018), available at
https://www.deccanherald.com/opinion/conflicting-rights-equality-or-697994.html (last visited Mar. 5, 2025).
K. Kannan,
Uttarakhand’s
UCC-
Unifying Laws or Dividing Communities?, available at https://www.livelaw.in/articles/uttarakhand-uniform-civil-code-and-personal-laws-implications-analysis-252125 (last visited on Feb. 2, 2025)
include the registration of the marriage with the registrar after it would be solemnized in the manner as the parties are concerned. This would serve as the basis of security and would further bind the spouses from taking any grave and sudden action against each other like divorce or separation. The act regulating the registration of Live-in Relationships poses a blatant risk to the right to privacy as guaranteed by Article 21 of the Constitution. This provision includes the mandatory registration of the live-in relationship between two partners within 30 days, and failure of which would invite penalties. Is it legally and ethically right to let the government decide who you can live with and have your personal life be reported to the Police like it’s a crime and all this be subject to bureaucratic procedures? In Selvi v.
State of Karnataka10The Hon’ble Apex Court held that an individual has the liberty to decide whether he wants to disclose any personal fact or not, free from state interference. The question that now arises is whether the registration of a live-in relationship is a reasonable basis to intrude where the live-in partners don’t want to disclose anything with anyone.
4.2 Conflict between the Fundamental Rights and DPSP:
DPSPs are just directives to the state and are not enforceable by the court of law but Fundamental Rights are enforceable by the court of law and can be claimed in case they are violated. When state tries to implement any DPSP the same should not violate any fundamental right as they prevail above DPSP. In State of Madras v. Champakam Dorairajan11 case the Supreme Court held that all Fundamental Rights are superior to the DPSPs. As the new act is prone to discussions and disapprovals among various communities as it would abandon them from the exercise of their personal laws, the conflict between the DPSPs and FRs would arise because Article 26 (Freedom to manage religious affairs) of the Indian Constitution gives every citizen a right to manage their personal affairs as per their religious customs.
In this conflict between the two, the preference should be given to the Fundamental Rights rather than implementing a UCC as part of the DPSP.
10 Selvi v. State of Karnataka, (2010) 7 SCC 263
11 State of Madras v. Champakam Dorairajan, AIR 1651 SCC 226
4.3 Central v. State Law:
After getting President Draupadi Murmu’s assent under Article 201 of the Indian Constitution in March 2024, the Uttarakhand state has officially implemented the UCC and became the first state in India to do so12. This act applies to all the residents of the state, whether living outside the territory. However, the new state law would prevail as per Article 254(2), but the discrepancies between the central laws and the state laws will arise because of its extraterritorial applicability13. If an Uttarakhand resident marries outside the state, which law would apply? Or can the live-in couple, residents of Uttarakhand state, live in another state without registration? In these situations, can the UCC override the central laws, or the central law would prevail as per the mandate of Article 254 of the Indian Constitution?
5. Impact on minorities and the risk of majoritarianism:
India follows the parliamentary form of government. Here, the parliament and the state legislature enact laws as per their mandate and the authority they derive from the constitution. The elected representatives sit in these houses and share the part of the common citizens in the decision-making process through their membership of that house. People generally vote for that candidate or party with which their ideologies resonate, and who derives all this? It is only the majority community of the nations to whom every party wants to appease by giving them authority over minorities, and eventually, the preferences of the majority community overlook that of the minorities, and because of this system, there is an evident risk of majoritarianism.
This signifies that if any bill is passed in parliament or state legislature, then it would probably be in favour of the majority and may not be for the minority. This could lead to vote bank politics rather than actual uniformity in the civil laws. The majority community’s support for the UCC could be perceived as a sign of distrust towards the minority community that their personal and religious laws are on the table to be discussed, which could lead to resistance from different minority communities, as Muslims earlier opposed the unconstitutionality of triple-talaq, which altered the sharia law. That’s why it is
12 “Uttarakhand Rolls Out UCC, Becomes First State To Do So” LiveLAW.in(2025), available at
https://www.livelaw.in/news-updates/uniform-civil-code-uttarakhand-first-state-pushkar-dhami-282149 (last visited on Jan. 1, 2025)
13 Ibid.
said that changes in the majority community’s law are easier than those of the minority community. By arbitrarily imposing the common civil code without proper consensus between the citizens and the authorities could lead to the depletion of faith among citizens and especially the minority communities which they have in the Constitution of India as they may take it as the infringement of their Fundamental Right to manage religious affairs as guaranteed by Article
26 of the Indian Constitution.
6. Alternative approaches to legal uniformity
In bringing about changes in practices or laws that have prevailed for ages, the authorities should follow a piecemeal way to make a reform rather than imposing a totally new law on the citizens of the nation in one go. For example, the government amended the Hindu Succession Act of 1956 in the year 2005, which granted daughters equal rights to inherit ancestral property like sons in a joint Hindu Family system14. In the case of Shayara Bano v. Union of India and Others15, the apex court declared the Triple Talaq as unconstitutional. In both the amendments, the other provisions of the personal law were not touched. Although these modifications sparked debates, they balanced reform with respect for religious diversity and personal laws. Reform is gradual, requiring time to evolve and be accepted. Codifying personal laws can ensure fairness while preserving essential religious practices.
A Uniform Civil Code may be seen as government intrusion, but addressing discrepancies within personal laws causes less discord, allowing legal uniformity with minimal opposition. Legal uniformity should not be imposed by the state on its citizens rather it should be brought by thorough research on the needs of the society and the challenges which the judiciary faces while serving justice. Every personal law should be amended after a dialogue with the scholars of the concerned community and by forming a committee to introspect on the challenges and the repercussions afterwards. The government should first focus on the legal uniformity within the personal laws of one community at a time rather than making one law for all. for instance, before the enactment of the Hindu Succession Act of 1956, the two Hindu schools of thought gave women different rights of inheritance.
Under the Mitakshara of thought the women were
14 Mayashree Acharya, Hindu Succession Act: Rights of Women in India, ClearTax (2024), available at
https://cleartax.in/s/hindu-succession-act (last visited on Feb. 8, 2025)
15 Shayara Bano v. Union of India, (2017) 9 SCC 1
not regarded as co-parceners, and the Dayabhaga school of thought gave the widow right to inherit the property of her late husband. But even under Dayabhaga if a widow dies without a son, her property would not be transferred to her daughters16. The enactment of the act of 1956 brought uniformity in the inheritance rights of the women among Hindu community. if uniformity was so simple, then the tribal population of the Uttarakhand state would have been there upon whom this UCC of Uttarakhand is not applicable. Conclusion: The burgeoning deliberation surrounding the enactment of UCC can be most rightly concluded that concerned authorities while enacting this statute shall ensure the balanced approach in considering both the Uniformity and Diversity, Equality and Religious freedom to make sure the establishment of gender just and harmonious society at the same time.
The implementation of UCC should not be enacted, disgracing minority rights and religious freedom. The earlier experience of the Hindu Code Bill and the Abolition of Triple Talaq suggests that reforms should be bought in a piecemeal manner without rushing, eventually bringing one single statute to regulate all the personal Laws.
16 Ibid.