As the assembly elections in Gujarat draw close on the heels of that in Himachal Pradesh, one of the most raging issues that seems to tie in the political milieu in both states is the declaration to implement a Uniform Civil Code(UCC) by the incumbent governments.
The Bharatiya Janata Party (BJP) government has portrayed a long-standing affinity towards the implementation of UCC across India. However, the demand for it is neither novel nor is it unique to the ruling party’s manifesto.
In fact, it was envisioned by the framers of the Constitution themselves who enshrined the prospect of implementing UCC in India under Article 44 of the Indian Constitution. One may thus, wonder why the hullabaloo over a provision which comes with a constitutional sanctioning?
UCC: A Lowdown
To answer that, let’s take a step back.
As a land with a mammoth plurality of beliefs, faiths and cultural practices, India has often struggled to homogenise the diverse and sometimes contradictory laws of the land. In fact, the British government while codifying the criminal and civil laws in India, took the first attempt of abrogating the faith-based laws in favour of an objective legal shroud.
This was the genesis of UCC—a set of laws that governed all citizens equally irrespective of their religious customs.
However, the problem arose in the inextricable links that the personal practices of citizens had with religious precepts and customs. To hold all such practices null or worse— still illegal, would go against our fundamental constitutional value.
Thus, emerged the judicial practice of personal laws determining matters concerning marriage, inheritance, divorce etc. outside the purview of secular codes.
It is perhaps for this reason that Article 44 of the Constitution urges the state to “endeavour” and not enforce the UCC. Further, it is included under the Directive Principles of State Policy so these are not binding provisions but merely guiding principles that the state should strive towards.
Can Individual States Implement UCC?
Yes, under Article 246 of the Indian Constitution which distributes the legislative powers between the Central and the State governments, state governments are endowed with the authority to legislate on issues related to family laws. However, the real question is whether such enforcement is desirable at this stage of the Indian polity.
This piecemeal approach to UCC by specific state governments, ushers in a paradox of federalisation. As citizens who are legally entitled to freely move and assemble anywhere in the country, many aspects of our family lives have bearings across different parts of the country.
Imagine, a Muslim woman getting married to someone who already has a living spouse as per the established customs of her religion. In a few years, the couple moves to another state which follows the prospective UCC. Now, should they wish to file for a divorce, will the UCC which criminalises polygamy be applicable or will they have to travel back to the original state to finalise the divorce?
As highlighted by the 2016 Law Commission report, India has not attained the stage where a homogenised code can be holistically applied to personal facets, nor is it necessary. Worse still, a state-based distinction in the personal laws will only cause more confusion and potentially communal backlash.
Does Demand for UCC Hint at Communal Colouring?
Political analysts opine that BJP-ruled states have been especially proactive in endorsing UCC as propaganda to appease sections of Muslim women who may have been disadvantaged by certain religious practices. The 1985 Mohd. Ahmed Khan vs Shah Bano Begum judgement by the Supreme Court of India had emphasised on the need for establishing UCC to mitigate the discriminatory practices within certain religious laws.
However, eliminating personal laws is not as straightforward since they are widely diverse within any and all religions in India and an abrupt negation of them all is infringing upon the fundamental rights of the citizens.
In fact, the constitution confers corrective means to laws which are inherently discriminatory and violative of the fundamental rights of the citizens within the purview of Article 13 of the Indian Constitution.
Without making efforts to assess and amend such provisions, if any, within the existing constitutional framework, to opt for the UCC, that too in a few selected states, will not only be legally immature but also extremely haphazard from the point of view of governance.
(Yashaswini works as the Outreach Lead at Nyaaya, an initiative of Vidhi Centre For Legal Policy to provide simple, actionable, reliable, accessible legal information for all. She holds a law degree from SOAS, University of London. She tweets at @yashaswini_1010. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)