Opponents of UCC create false associations with communalism to sabotage the code.
The Uniform Civil Code (UCC), often seen as a modern issue, actually has roots in ancient India. The Vedas, oral traditions that were codified around the fifth century BC, aimed to create a unified system of governance, and were considered laws of the land. During the first millennium BC, an early form of UCC emerged from the Vedas’ cosmic hymns, although it faced setbacks in becoming a unique and divided society in South Asia. The trend towards uniformity persisted during the Mauryan dynasty, specifically under Ashoka, as seen in his edicts. The non-binding nature of the Code, compared to its coercive character, is explained using a rock surface analogy. Islamic invasion later added religion as another divisive factor for generations to come. In British India, the divide-and-rule policy was implemented by the colonial regime. It is well-acknowledged that India had Rule of Law prior to A.V. Dicey’s postulation of Supremacy of Law, Equality before Law, and Pre-Dominance of Legal spirit, and even before to the invention of writing.
CONSTITUTIONAL POSITIONS
Part IV, Article 44 of the Constitution states that “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”. However, Article 37 provides Directive Principle of State Policy (Part IV) “shall not be enforceable by any court”. Other relevant Articles are 13(1), 14,15,17, 25(1), (2), 26,29, 38, 246 and 372.
PARLIAMENTARY EFFORTS
In the most controversial Shah Bano case, the Supreme Court (SC) remarked that UCC has been partly implemented through the codification of Hindu Law in the fields of Marriage and Divorce, Adoption and Maintenance, Minority and Guardianship, Succession, and the execution of Special Marriage Act, 1954. Besides, enactment of Indian Christian Marriage Act, 1872 and Divorce Act, 1869 for Christian marriage affairs. Likewise, Parsi Marriage and Divorce Act, 1936 for Parsis. However, Muslim law remains uncodified and traditional.
JUDICIAL OPINIONS AND RECOGNITIONS
India is a Secular but not an Atheist State. The personal laws are Communal in nature. Dissolution of a marriage is not a Religious problem but a Societal one.
The judiciary supports enacting UCC to protect the oppressed and promote national unity. A few famous cases that captivated the public and still have an impact are outlined here.
In Bai Tahira v/s. Ali Hussain (1979), SC ruled that a divorced Muslim wife can seek maintenance under Section 125 of the Criminal Procedure Code (Cr.P.C). In Shah Bano case (1985), SC ruled that the provisions of Cr.P.C are independent of religion. The Rajiv Gandhi government, ironically, yielded to orthodox Muslim organizations and enacted Muslim Women (Protection of Rights on Divorce) Act, 1986 to negate the judgment. Notably, Justice Y.V. Chandrachud regretted that Article 44 remained “a dead letter” and criticized the government for being non-committal. In Sarla Mudgal v/s. Union of India (1995), SC directed the P.V. Narasimha Rao Government to take a fresh look at Article 44. The Division Bench of SC (Kuldeep Singh and R.M. Sahai, JJ) lamented on successive Governments’ failure to implement the constitutional mandate since 1950.
Pending UCC, many Hindus convert to Islam to escape the repercussions of bigamy, as Muslim law allows up to four wives. Numerous petitions filed under PIL route and in individual capacity, brought the question whether a Hindu husband, who converted to Islam without ending his first marriage, can have a second marriage. The Court ruled that such marriage is illegal, and the husband can be prosecuted under Section 494 of the Indian Penal Code (IPC).
In Pragati Varghese v/s. Cyril George Varghese (1997), the Bombay HC invalidated Section 10 of the Divorce Act for violating Article 21. This section required Christian wives to prove adultery, cruelty, or desertion to obtain a divorce. The Court also invalidated Sections 17, 19 and 20 that required a District Court’s annulment or divorce to be confirmed by three High Court judges and forced the wife to stay with the wrongdoer, subjecting her to a sub-human life. Despite irretrievable breakdown, there is reluctance to dissolve the marriage. Alas, such authoritative judgments are often criticized by UCC opponents.
CONCLUSION
Due to diverse laws, there is no homogeneity in crucial matters like marriage, succession, adoption, and maintenance, leading to chaos such as monogamy being mandatory for everyone except Muslims. Only Hindus have the legal right to adopt a child and bestow property rights, whereas rest have to resort to the Guardian and Wards Act, 1890 but guardianship over a child falls far short of conferring the legal status of a son on the ward. As a corollary, in Parsi law, a three-year separation is required for judicial separation or divorce, while the Divorce Act requires a two-year separation for judicial separation alone. There are ample such contradictions in personal laws on identical matters, making the structure complex, incoherent, and asymmetrical.
The issues that keep surfacing: women not accepted as Karta in Hindus, men and women having unequal rights among Muslims, India allowing polygamy, though banned in several Islamic countries, caste system thriving despite Article 17 that forbids untouchability—all justify the case in favour of a UCC.
It is unfortunate that opponents of the UCC use historical theory that “bringing uniform law across the regime remains a default dream of any ruler to keep the territory and subjects intact” to create false associations with communalism, to sabotage its original goal of achieving gender and social justice, along with national integration.
Sabyasachee Dash is a columnist with various media outlets.