Drafting Uniform Civil Code

In Context

• Recently, certain state governments have decided to frame Uniform Civil Code (UCC) for their respective states which have led to increased public deliberation on the issue.

About

• Under Article 44 (Directive Principles of State Policy) of the Constitution, the State shall strive to secure for its citizens a Uniform Civil Code(UCC) throughout India.
• However, even after 75 years, India has not been able to draft it. But through piecemeal legislations it has come closer to UCC than at the time of independence.
• Of late, many state governments have announced that they will bring UCC in their states.

Issues with states framing their own UCC

• ‘Union’ and not the ‘State’: Article 44 of the Constitution says that ‘State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. Here Constitution makers envisaged an all- India character and not state-specific.
• Concurrent list: The items pertaining to family and succession are in the concurrent list with jurisdiction of both Centre and states. For a law to be uniformly applicable to India, has to be passed by the Parliament.
• Progressive legislations by the Parliament: The Parliament has already passed various secular laws inching towards UCC such as Special Marriage Act, Indian Succession Act, The Muslim Women (Protection of Rights on Marriage) Act, 2019 (abolishing triple talaq). Therefore, states being proactive on their own with respect to UCC rather than consulting with the centre, is seen as a hasty move.
• Political mileage: Political parties are promising UCC in their manifestos before the elections. This is seen more as scoring electoral mileage rather than genuinely having common civil laws for the citizenry.

Arguments in favour of Uniform Civil Code

• Secular nature of the state: India is a secular republic and having different sets of laws for different religious groups is not aligned to democratic secular ethos.
• Women empowerment: The religious laws are biased against the women thus infringing upon their rights. UCC will provide women justice and will make them co-equals with men with respect to marriage, divorce, inheritance, adoption.
• Supreme Court approved: Even the apex court in its Shah Bano judgment, 1985 asked the government to frame the UCC.
• Taking cue from other countries: All the progressive democracies of the world have common laws for their citizens irrespective of their religion.
• Simplification of legislative framework: Implementing the UCC will simplify the laws and associated legal jurisprudence.

Arguments against Uniform Civil Code

• Against Indian Diversity: India is a diverse country with people following different socio-religious practices. Bringing all of them under one umbrella will affect diversity.
• Constitutional Rights: The Constitution itself allows freedom of religion to all its citizens. Idea of UCC conflicts with freedom of religion.
• Law Commission’s view: Law commission itself said in 2018 that UCC is neither necessary nor desirable at this stage.
• Majority-minority divide: Implementation of UCC might trigger fear among the minorities that their religious rights are being taken away.

Way Forward

• Passively: Bringing in UCC can be socially reactionary as society’s transformation is gradual, it cannot happen with a single piece of legislation.
• Gradual process: Rather than a big-bang approach, state should advance with calibrated piecemeal approach which it has been doing over decades like bringing in secular progressive legislations (Special Marriages Act, Indian Succession Act)
• Codifying different social milieus at a time: 
  • Government can codify marriage, adoption, succession and maintenance in secular legislation gradually, one by one. 
  • Special Marriage Act and Indian Succession Act with minor modifications can be gradually introduced for the entire country and all citizens.
• Repealing Foreign laws:
  • In many parts of the country foreign laws of colonial times still apply with respect to family and succession.
  • Even the secular family laws enacted by the Parliament do not apply to the citizens of the state/U.T. They are:
• Portuguese Civil Code of 1867 in Goa, Daman and Diu
• French Civil Code of 1804 in Puducherry
  • Before UCC, the government should repeal these laws and bring the citizens of the above states/UTs under the already existing secular laws in the country.
• Social engineering: Government should gradually work towards social engineering and nudge citizens, primarily minorities regarding having uniformity in case of civil laws.

The state should fine balance its commitment towards fundamental rights of the citizens and religious dogmas existing in the country.