In India there is a criminal code that is equally applicable to all, irrespective of religion, caste, domicile, etc. However, a similar code for civil matters does not exist and people are governed by personal laws. These personal laws vary in their philosophy, roots, and application. There are different laws governing rights relating to property, marriage, divorce, maintenance, adoption, and inheritance. Though Indian laws do follow a uniform code in certain civil matters – the Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act, etc – most of them have hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
The recent observations in Parliament and Supreme Court of India have put the spotlight back on the debate over a Uniform Civil Code. Article 44 of the Constitution of India, incorporated in the chapter of Directive Principles of State Policy, lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India. A Uniform Civil Code basically means unifying all the “personal laws” of Hindu, Muslims, Christians, Jains, Sikhs, etc, to have one set of secular laws dealing with personal matters like marriage, divorce, maintenance, adoption and inheritance, that will apply to all the citizens of Union of India irrespective of their caste, religion or community. A uniform civil code administers the same set of secular civil laws to govern all people. This supersedes the right of citizens to be governed under different personal laws based on their religion or caste or tribe.
The whole debate on the Uniform Civil Code is based on the argument to replace all different personal customs and practices of marriage, divorce, adoption and successions with a common civil code. Those who are in favour of a common code contend that it will end discrimination in religions, put a full stop on the abuses of religious practices or other community customs, and end gender inequality. Others believe that it will rob the nation of its religious diversity and will violate the fundamental right to practise religion as enshrined in Article 25 of the Constitution of India.
As it is placed under Directive Principles of State Policy, Article 44 is not justiciable (not enforceable by any court) but the principle laid down therein is fundamental in governance of the Union of India. Also, a cursory reading of all the Articles in Part IV of the Constitution of India, i.e., Directive Principles of State Policy, implies that the duty of state is greater in other Directive Principles than in Article 44.
So, merely for political motives, enactment of such a uniform law for the whole of India by any government may be counter-productive to the unity and integrity of the nation. The codification of personal laws has historically generated protests. The Hindu Code Bill, one of the foremost pieces of social legislation in India, had triggered enormous opposition back then. India is among the most diverse nations of the world with citizens from all religions, following a hundred customs and rituals and thus, a major constraint will arise while bringing people governed by different religions and following different customs under one roof.
Alongside all this, the Law Commission from time to time has preferred codification of personal laws over the Uniform Civil Code as a way to end discrimination within religions and to break the abuses of certain customs and practices. Codification of various practices and customs would make them ‘law’ under Article 13 of the Constitution. Any ‘law’ that comes under Article 13 of the Constitution of India should be consistent with the fundamental rights, the Law Commission has reasoned. This would protect the plurality of communities, too, and may be the way forward for the near future.
In fact, the Law Commission has suggested in no uncertain terms that the Uniform Civil Code is “neither necessary nor desirable at this stage in the country.”
The writer is a student at School of Legal Studies, Central University of Kashmir [email protected]