Context: Stating that the Uniform Civil Code “is a necessity and mandatorily required today,” the Allahabad High Court has called upon the Central Government to forthwith initiate the process for its implementation.
What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Why need UCC?

• UCC would provide equal status to all citizens
• It would promote gender parity in Indian society.
• UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
• Its implementation would thus support the national integration.

Issues with UCC

• There are practical difficulties due to religious and cultural diversity in India.
• The UCC is often perceived by the minorities as an encroachment on religious freedom.
• It is often regarded as interference of the state in personal matters of the minorities.
• Experts often argue that the time is not ripe for Indian society to embrace such UCC.

Greater role for State

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.
• UCC can be weaponized to further isolate minority communities and religions.

Issues of marriage, divorce succession are civil in nature

• So, many rural and tribal communities may not follow it and continue with their own tribal and customary practices.
• Law commission report has stated that only reformations in personal laws are required, as Uniform civil code may seclude women and the vulnerable section.
• Formal courts are expensive, does not deliver speedy justice and is time-consuming as well.
• Article 25 envisages the freedom to practice, profess, and propagate one’s religion.
• By enforcing a singular law applicable to all citizens, this fundamental right is violated.
• Article 26 envisages freedom to manage religious affairs.
• It is contradicting as UCC does not allow judiciary or parliament to interfere in their religious matter.
• Enactment of uniform civil code can lead to laws being promulgated which would inevitably favour the majority religion.
• Thus, it is contradicting article 14 of the constitution which envisages right to equality.

What are more important — fundamental rights or directive principles?
There is no doubt that fundamental rights are more important.

• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Road Ahead

• Rather than an omnibus approach, the government could bring separate aspects such as marriage, adoption, succession and maintenance into a UCC in stages because It is difficult to enact a uniform code in a country like India which is diverse in many fields.