“Homogeneity is not the defining feature of Indianness. Our differences are not our weakness. Our ability to transcend these differences in our recognition of our shared humanity is a source of our strength”
- Hon’ble Justice DY Chandrachud.
Makers of the Indian Constitution had rejected the idea of ascribing specific religious identities to India and instead, build a Republic.
To create a common bond of what it meant to be Indian, to shun homogeneity & celebrate diversity, while framing the Constitution, the framers encapsulated the concept of Uniform Civil Code ("UCC") in the Draft Constitution,
“The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India"
Recently the Hon’ble Chief Justice of India SA Bobde who was invited as a Chief Guest at the inauguration ceremony of the new building of Bombay High Court at Goa appreciated Goa for its Uniform Civil Code.
"Goa has what Constitutional framers envisaged for India - a Uniform Civil Code. And I have had the great privilege of administering justice under that Code. It applies in marriage and succession, governing all Goans irrespective of religious affiliation”, the CJI said.
In his address, while suggesting the academicians to visit Goa & understand the real change, he said, “I have heard a lot of academic talk about the Uniform Civil Code. I would request all those intellectuals to simply come here and watch the administration of justice to know what it turns out to be."
He also hailed the Constitution Bench of Goa for its ability to give one a “variety of experience” & said that, “In India, if there's any bench which gives you the variety of experiences and challenges as the Supreme Court, it is only the Constitution Bench at Goa. When you sit on a Constitution bench in Goa, You can expect to hear a land acquisition case, a Section 302 murder appeal, public interest litigation, a question under administrative law, income tax, sales tax, and excise law.”
It is pertinent to note that there was a demand to add a proviso to make UCC, whenever it would be enacted, not obligatory in nature & keep personal law out of its purview. The provision read as, “Provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.”
Dr BR Ambedkar’s position in the Constituent Assembly Debates towards formulating the UCC was that such a code would be desirable but for the moment it would remain voluntary. He recommended that,
“It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary [...] so that the fear which my friends have expressed here will be altogether nullified.4[..]”
- November 23, 1948 [Dr. BR Ambedkar, Constituent Assembly Debates, disagreeing with the amendment to the provision and thrusting upon voluntariness]
Since the members of the Constituent Assembly had varied opinions & glaring concerns of incidental infringement to Article 25 were also raised, the framers of our Constitution vested the obligation to enact the UCC upon the State by placing Article 44 which read as, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India,” as a Directive Principles of State Policy (“DPSPs”).
Application of UCC in India is the proposal to replace the personal laws based on scriptures & customs of each major religious community in the country with a common set governing every citizen. Distinguished from public law, the demand for a UCC means unification of all the personal laws that cover marriage, divorce, inheritance, adoption & maintenance to have one set of secular laws, irrespective of any community.
Although the principles enshrined under Part IV of the Constitution of India,1950 as DPSP are not enforceable by any Court but the principles laid down are fundamental in the governance of the Country & the State has the duty to apply these principles in making laws.
However, till date no other state except Goa has envisaged what the Constitutional Framers envisioned for India by adopting UCC in the form of “Goa Civil Code”.
The Division Bench comprising Justice Deepak Gupta & Justice Aniruddha Bose in Jose Paulo Coutinho vs Maria Luiza Valentina Pereira (Civil Appeal No. 7378 OF 2010) while dealing with a matter related to properties of a Goan described, “Goa” as a shining example of an Indian State which had a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights.
Uniform Civil Code in Supreme Court
The Supreme Court of India time & again by its various judicial pronouncements has been incessant in reminding the legislature of the glorious promise of a uniform civil law which was deferred to the future by the founding fathers of our Constitution.
Most recently, in José Paulo Coutinho (supra), Top Court observed that,
“It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano and Sarla Mudgal & Ors. vs. Union of India & Ors.”
In ABC v. State NCT of Delhi [(2015) 10 SCC 1], it was observed that, “It would be apposite for us to underscore that our Directive Principles envision the existence of a Uniform Civil Code, but this remains an unaddressed constitutional expectation.”
Further, in State of Tamil Nadu v. Shyam Sunder [(2011) 8 SCC 737] it was noted that,
“The propagators of this campaign canvassed the uniform education system would achieve code of common culture, removal of disparity & depletion of discriminatory values in human relations. It would enhance the virtues & improve the quality of human life, elevate the thoughts which advance our constitutional philosophy of equal society. In future, it may prove to be a basic preparation for the uniform civil code as it may help in diminishing opportunities to those who forment fanatic & fissiparous tendencies.”
In Sarla Mudgal v. Union of India [(1995) 3 SCC 635] the Court observed that,
"Article 44 is based on the concept that there is no necessary connection between religion & personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations & personal law. Marriage, succession & like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25,26 & 27. The personal law of Hindus, such as relating to marriage, succession & the like all have a sacramental origin, in the same manner as in the case of the Muslims or the Christains. The Hindus along with Sikhs, Buddhist & Jains have forsaken their sentiments in the cause of national unity & integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil code” for the whole of India.
The Last Word
Indian laws in most civil matters such as The Indian Contract Act,1872, The Code of Civil Procedure,1908, The Sale of Goods Act, 1930, The Transfer of Property Act 1882 etc follow a uniform code. Although the states by making hundreds of amendments have brought diversity in these secular civil laws too, the application of UCC in terms of “personal laws” which was included in the “Concurrent List” with a trust on the future generations for its implementation still remains a “dead letter.”
In an intimately religious community as India, the task of bringing about a change in legal customary practices is surely time consuming & laborious. In fact a sudden implementation of a Uniform Code might result in causing tensions in Indian Society. But what our Founding Fathers envisioned for can be implemented by taking all communities into confidence by following a process which is in harmony with the personal laws.