Bombay Bar Speaks: Uniform Civil Code

Read Time: 28 minutes

Conversations around the Uniform Civil Code have been picking up since the monsoon session of the Parliament began in July, 2023. A number of political leaders, persons from civil society and the general public have expressed their views time and again on the issue of whether the code should be effectuated or not. The issue of UCC is undoubtedly a very important one and discourses around it are even more relevant.

As part of an ongoing series on the Uniform Civil Code, Lawbeat reached out to members of the Bar from Bombay in order to extrapolate their views on the issue and this is what they had to say:

Former Bombay High Court Judge, Justice Abhay Thipsay:

"This is a very pre-mature discussion and I think it is waste of time because there is no draft as yet. Once there is a draft, there can be a discussion about the provisions that the draft proposes. In my view considering few jurists, I have read about a lot of personal laws would be needed to be considered for this keeping in mind the constitutional principles. There is Hindu succession, muslim laws and other personal laws which needs to be brought on the same footing. For examples there is joint Hindu family under Hindu Law which no other personal laws have. What would happen to that if there is Uniform Civil Code?"

Senior Advocate Gayatri Singh:

"1. By a notice dated 14.06.2023, the 22nd Law Commission of India had called for soliciting of views and ideas from the public at large and “recognized religious organisations” on the Uniform Civil Code (UCC). By a second notice dated 14.07.2023, the last date for submissions was extended till 28.07.2023.

2. Women’s organisations, civil liberty organisations and other organisations and individuals have submitted their views. Considering the vastness and complexities of the issues involved, the time period within which the public views are to be submitted is greatly inadequate and does not do justice to the issue. It is apparent that the Government merely wants to make a farce of a public hearing and thrust its opinion without positively considering the diverse views of the public.

3. Aside from merely inviting opinion from the public, the Government does not offer its own concrete proposal as to what principles should be included in the UCC. It stresses on uniformity by targeting only selective personal laws which is apparent from the speeches of Ministers of the ruling dispensation. Would uniformity mean that the Hindu Family Code would emerge as the basis and foundation of the UCC? Would it take into consideration the diversity of the country with its traditions, practices and customs? Instead of making the process truly democratic and inclusive, the entire process is riddled with opaqueness.

4. There is no reference to the 21st Law Commission Report of 2018 which concluded that “UCC is neither necessary nor desirable at this stage … and would be counterproductive for the harmony of the nation,” after considering at length the view of all stakeholders, and receiving overwhelming responses. However, none of those have been considered and the 22nd Law Commission seems to have commenced a fresh hearing on a completely new slate, ignoring the efforts put in by the 21st Law Commission.

5. Unfortunately, the belief that uniformity can guarantee equality is fallacious and only seeks to impose the practices and laws of the majority community ignoring the diversity and peculiarities of different communities.

6, Therefore, the emphasis should not be on uniformity but must be based on the principle of gender equality.

7. UCC must be subjected to the constitutional guarantees of equality and liberty. Instead of attempting to introduce a UCC, attempts should be made to introduce a “gender equality Code” by recognising not only the diverse cultures and customs for women in various marginalised communities but also by recognising diverse forms of relationships. This understanding takes into consideration the gender discrimination cutting across all personal laws and does not focus merely on differences between communities.

8 .UCC targets selective personal laws instead of focusing on gender inequality which would be universally applicable to women of all communities. Therefore, reform in personal laws should be done by amendments and not by replacement."

Women's Rights Lawyer Flavia Agnes:

"The Uniform Civil Code (UCC) has been a controversial topic of debate in India for several decades. It refers to the idea of having a common set of laws governing personal matters such as marriage, divorce, inheritance, and adoption for all citizens, irrespective of their religion. While there are some who argue that it is the need of the hour to implement UCC, there are others who believe that it is not the right time to do so. In this response, I present my views and argue that it is not the right time to implement the UCC.

Firstly, it is important to understand that the implementation of UCC is a highly sensitive issue in a country as diverse as India, with a plethora of religious and cultural identities. It is imperative to ensure that the implementation of UCC does not infringe upon the rights and beliefs of any community. In this regard, the government must engage in a constructive dialogue with all stakeholders, including religious leaders and community representatives, to address their concerns
and arrive at a consensus.

Secondly, the implementation of UCC requires a thorough review of the existing personal laws of different religious communities. It is essential to ensure that the UCC is in line with the principles of justice, equality, and non-discrimination, which are enshrined in the Indian Constitution. This review process is time-consuming, and may take several years to arrive at a comprehensive and acceptable common code.

Thirdly, the implementation of UCC requires a strong political will and a conducive environment. Today the political climate is highly polarized, with political parties using religion and identity politics to further their agendas. The government must ensure that the implementation of UCC is not
used as a tool for political gains and that it is undertaken in a non-partisan and inclusive manner.

Fourthly, the implementation of UCC requires a significant investment in terms of resources, including manpower, finances, and infrastructure. The government must ensure that it has the necessary resources to undertake this massive task without compromising the quality of implementation.

Fifthly, the implementation of UCC must be accompanied by a robust public awareness campaign.The common citizen must understand the rationale behind UCC and the benefits it offers in terms of
gender justice, social equality, and national integration. This will require a concerted effort on the part of the government, civil society, and the media to educate and sensitize the public at large.

In conclusion, while the implementation of UCC is a desirable goal, it is not the right time to do so.The government must engage in a constructive dialogue with all stakeholders, review the existing
personal laws, ensure a conducive political climate, invest in resources, and undertake a robust public awareness campaign. It must be a well-thought-out, inclusive, and consensus-driven process that upholds the principles of justice, equality, and non-discrimination."

Advocate Neel Helekar:

"It is my opinion that there is a necessity to bring Uniform Civil Code for providing Gender Justice and promoting feeling of togetherness while accepting diversity. 

Part IV of the  Constitution of India enlists Directive Principles of State Policy, which was incorporated by framers of Constitution as a road map for Independent India. Most of the Articles in the said part are being enforced  by including them in various Enactments. These Articles, though not enforceable, are desirable to be implemented. Article 44 provides - "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India."

We already have Civil Procedure Code, Criminal Procedure Code, Evidence Act, Transfer of Property Act, Contract Act etc. common for all citizens of India. However personal laws relating to Marriage, Divorce, Succession, Adoption and Maintenance differ from religion to religion. The interfaith marriages can be solemnised under Special Marriage Act. Though Hindu Code Bill which was introduced in Legislative Assembly in 1947 lapsed, the same was split and Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act and Hindu Adoption and Maintenance Act were enacted.

In some religions, a child cannot be adopted and care can be given only as a guardian. In some religions the procedure for divorce, entitlement of divorced wife about maintence are adverse to women. These system need change. Therefore by educating, informing and discussing with all sections of society, Uniform Civil Code needs to be made enforceable for equal protection of all citizens."

Advocate & Social Activist Abha Singh:

"Recently, the 22nd Law Commission reignited the debate regarding the implementation of a Uniform Civil Code in the country by issuing a notice and seeking the views of religious organisations and the public on the issue of UCC. The concept of a Uniform Civil Code (UCC) has been a subject of intense debate in the Indian socio-legal landscape for decades.

India is a country with many religions, customs and practices. A uniform civil code will help in integrating India more than it has ever been since independence. It will help in bringing every Indian, despite his caste, religion or tribe, under one national civil code of conduct. For example, UCC will also help in reducing vote bank politics that most political parties indulge in during every election. While our economic growth has been significant, our social growth has lagged behind. In  Shayara Bano v Union of India, the Hon’ble Apex Court, in this case, held that the practice of talaq-ul biddat is unconstitutional and held that it is not an essential religious practice. The court again reaffirmed that matters such as marriage, divorce, and inheritance should not be under the dominion of personal religious laws, and they should be governed under a single UCC.  A UCC will help society move forward and take India towards its goal of becoming a truly developed nation.

Even in Diengdeh v. SS Chopra: the Hon’ble Apex Court stated that the need for framing a UCC because the laws relating to marriage and judicial separation were not uniform. Even in this case, the Supreme Court overrode the convoluted provisions of various personal laws, by allowing divorce under the grounds of irretrievable breakdown of marriage

Last but not the least, Implementation of UCC will inevitably give more rights to women. A very detailed discussion on the UCC was done by the Hon’ble Apex Court in the judgement delivered in the case of Mohd. Ahmed Khan v. Shah Bao Begum and ors. Shah Bano, a 62-year-old Muslim woman, was denied maintenance by her husband who pronounced divorce upon her. Religious personal laws are misogynistic in nature and by allowing old religious rules to continue to govern the family life we are condemning all Indian women to subjugation and mistreatment. A uniform civil code will also help in improving the condition of women in India. All Indians Should be Treated the Same- All the laws related to marriage, inheritance, family, land etc. should be equal for all Indians. Article 25 and Article 26 guarantee the freedom of religion and UCC is not opposed to secularism, hence part 3 of the constitution and it further enables the government to establish a social equilibrium between socio-cultural groups by codifying and unification of the variegated personal laws will produce a more coherent legal system. This will reduce the existing confusion and enable easier and more efficient administration of laws by the judiciary. UCC is the only way to ensure that all Indians are treated the same.

Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens. This does not mean that in the name of religion you subjugate women, do not give them alimony, do not treat them as equal human beings having the right to live with dignity. Religion should not used as a tool to exploit women and I think getting a uniform civil code will ensure this. After all equality before law and equal protection of laws is the basic premise of our Constitution.

Inheritance laws under different religions need to be synchronised to ensure that a daughter gets what is rightly hers. Why should a man's heirs receive property from his deceased wife but not the other way round? Can you answer this question?

Advocate Ajinkya Udane:

"The proposal for a Uniform Civil Code (UCC) would be a  saviour on proper implementation keeping in mind the right to practice one's religion, as guaranteed by Article 25 of the Constitution of India. The UCC aims to standardize laws across all religions and thereby prescribe a single law which would be applicable to all religious communities.

Furthermore, religious freedom is a fundamental right guaranteed by the Constitution of India. The UCC would solve the complexity in the present personal laws by enforcing a single set of laws. While addressing gender discrimination, imposing a uniform code would bring a positive change. It would be a inclusive drive to initiate dialogues within religious communities themselves, respecting their autonomy to evolve their practices while addressing inequalities and bring a uniform code.

In summary, the UCC would not conflict with the constitutional religious rights if implemented keeping the balance as guaranteed by the Article 25 of the Constitution. It's essential to consider the deeply ingrained cultural and religious factors at play and ensure that they are balance to maintain social harmony."