The story so far: The Uttarakhand Assembly is likely to pass the State’s Uniform Civil Code (UCC) Bill during its four-day-long session in February. A State-appointed panel constituted to draft the UCC submitted its final report to Chief Minister Pushkar Singh Dhami on February 2.
The introduction of a UCC was a key poll promise of the BJP in the run-up to the 2014 general elections and was reiterated before the 2022 Legislative Assembly elections in Uttarakhand. Following the BJP’s electoral victory on May 27, 2022, the Uttarakhand government announced the constitution of a five-member committee led by former Supreme Court judge Justice Ranjana Prakash Desai to draft the legislation.
The committee received over 2.15 lakh suggestions from the public and held over 38 public meetings across the state over the course of preparing the draft. The government had granted four extensions to the committee within a span of 20 months for the submission of its report.
The draft will be discussed in a meeting of the State Cabinet before it is tabled in the form of a Bill in the Assembly.
What does a UCC aim to do?
A UCC seeks to create a uniform set of laws to replace the distinct personal laws of every religion pertaining to subjects such as marriage, divorce, adoption, and inheritance. This stems from Article 44 of the Constitution, which mandates that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” The provision is a part of the Directive Principles of State Policy (Part IV of the Constitution), which although not enforceable, play a pivotal role in the country’s governance.
Several judicial precedents such as the Supreme Court’s judgment in Minerva Mills v. Union of India (1980), have ruled that striking a balance between fundamental rights and Directive Principles of State Policy was part of the basic structure of the Constitution.
Whether the provision should be included as a fundamental right or a directive principle was the subject of intense debate in the Constituent Assembly. Opponents, primarily Muslim members of the Constituent Assembly, feared that it would dilute the rights of religious minorities in India and destroy India’s diversity. The matter was finally settled by a 5:4 majority vote, with the Sub-Committee on Fundamental Rights headed by Sardar Vallabhbhai Patel deciding that establishing a UCC should not fall within the scope of fundamental rights.
Opposing such a code, member Naziruddin Ahmad from Bengal argued that it would come in the way of Article 19 of the draft Constitution (now Article 25) which guarantees the fundamental right to freedom of religion subject to reasonable restrictions such as public order, morality, and health. He also emphasised that such a uniform set of laws could not be implemented without securing the consent of the concerned communities.
On the other hand, member K.M. Munshi contended that a UCC would not defeat the freedom of religion since the state is empowered to make laws related to religious practices if they were intended for social reform. He highlighted various benefits such as promoting equality for women, especially since personal laws often prevent the elimination of discriminatory practices against women.
Taking a more ambivalent stance, Dr. B.R. Ambedkar said that although UCC was desirable, it should remain “purely voluntary” during the initial stages. He stated that since the provision was merely recommendatory, it should not be imposed upon all citizens.
““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.””Dr. B.R. AmbedkarConstituent Assembly debate, 1948
The Uttarakhand initiative
In June 2022, the Uttarakhand government constituted an expert committee headed by former Supreme Court judge Justice Ranjana Prakash Desai to examine ways for the implementation of a UCC. The committee also included former Delhi High Court judge Justice Pramod Kohli, social worker Manu Gaur (who heads Taxpayers Association of Bharat), retired IAS officer Shatrughan Singh, and Vice Chancellor of Doon University Surekha Dangwal as members.
The move followed Mr. Dhami’s promise that he would implement a UCC in the State if re-elected. The committee was supposed to submit its report in November 2022 but the deadline was subsequently extended multiple times despite the Chief Minister announcing in June last year that a draft UCC was ready.
Right from the start, the proposal has met with opposition from rival political parties. Congress representatives from the State have alleged that the move is BJP’s poll plank and that it wants to keep the pot simmering to polarise voters ahead of the general elections. Pritam Singh, one of the two Scheduled Tribe (ST) MLAs of the State pointed out earlier that the tribal community which comprises 2.9 percent of the state’s population had not consented to the UCC. The Van Gujjar tribe, a Muslim nomadic tribe with a population of around 60,000, has also expressed apprehensions over the law.
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All India Majlis-e-Ittehadul Muslimeen (AIMIM) leader Asaduddin Owaisi has called the UCC a tool of BJP’s political propaganda. “Like clockwork, the BJP raises this issue five or six months before general elections. The aim is to vitiate the atmosphere and polarise the electorate so that they derive political mileage before the 2024 elections,” he said last year.
What changes can be expected?
The draft UCC is set to focus on gender equality by introducing provisions that treat men and women equally, especially in matters pertaining to inheritance. Catering to demands from Muslim women in the State, it will also revoke practices governing marriage and divorce such as polygamy, iddat (mandatory period of waiting to be observed by women following the dissolution of a Muslim marriage) and triple talaq.
The Code is also likely to extend an equal property share to Muslim women against the existing 25% share accorded under Muslim personal laws. However, the minimum age for marriage for men and women is set to remain the same — 18 years for women and 21 years for men. Other issues such as divorce, marriage registrations, adoption, and social security for ageing parents will also be covered under the law. The committee has reportedlly also prescribed the mandatory registration of live-in relationships.
Speaking to the media last year, Mr. Dhami clarified that the proposed UCC was not aimed at appeasing any particular community but was instead aimed at empowering all sections of society. “After its implementation, reservation of any class, marital rights, customs, etc will not be affected,” he assured.
Supreme Court’s interventions
Over the years, the Supreme Court has deliberated upon the UCC in several judgements, but refused to issue any directive to the government since law-making falls within the exclusive domain of the Parliament. In its 1985 judgment in the Shah Bano Begum case, the Court observed that “it is a matter of regret that Article 44 has remained a dead letter” and called for its implementation. Such a demand was reiterated in subsequent cases such as Sarla Mudgal v. Union of India (1995), and John Vallamattom v. Union of India (2003) among others.
In 2019, in its Jose Paulo Coutinho v. Maria Luiza Valentina Pereira judgment, the Court hailed Goa as a “shining example” where “the uniform civil code is applicable to all, regardless of religion except while protecting certain limited rights” and accordingly urged for its pan-India implementation.
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Reviving the push for a UCC, six petitions were filed in the Supreme Court between 2021-2022 seeking uniformity in divorce, maintenance, and alimony laws on the ground that they discriminated against women, thereby violating Article 14 (right to equality) and Article 15 (right against discrimination based on religion and gender) of the Constitution. Some of the petitioners included BJP leader and advocate Ashwini Upadhyay, who had earlier filed a case against polygamy and nikah halala, and former Chancellor of Maulana Azad National Urdu University Firoz Ahmed Bakht, among others.
The Union Law Ministry however opposed the maintainability of such petitions by underscoring that the Court cannot direct the Parliament to frame or enact any law as it is a “matter of policy for the elected representatives of the people to decide.”
Consequently, in March last year, a Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud dismissed these petitions by observing that such issues squarely fall within the exclusive domain of the Parliament. The Court also declined to refer the matter for the consideration of the Law Commission of India, saying that “it would aid in legislation.”
In January last year, the Court dismissed a petition challenging the Uttarakhand government’s move to set up an expert committee on the UCC by highlighting that Article 162 permits the exercise of such powers. “Article 162 of the Constitution indicates that the executive power of a State extends to matters with respect to which the Legislature of the State has power to make laws. In view of the provisions of Entry 5 of the Concurrent List of the Seventh Schedule, the constitution of a Committee per se cannot be challenged as ultra vires,” the order read.
Entry 5 of the Concurrent List deals with “marriage and divorce; infants and minors; adoption; wills, intestacy, and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.”
Law Commission’s stance
In 2016, the BJP government requested the Law Commission of India to determine how to formulate a uniform code given the existence of “thousands of personal laws” in the country. In August 2018, the 21st Law Commission headed by former Supreme Court judge Justice Balbir Singh Chauhan submitted a 185-page consultation paper on “Reforms of family law” wherein it observed that the “formulation of a Uniform Civil Code is neither necessary nor desirable at this stage”.
The report stated that a unified nation did not necessarily need “uniformity,” adding that secularism could not contradict the plurality prevalent in the country. It however recommended that discriminatory practices and stereotypes within existing personal laws should be amended.
However, on June 14 last year, the 22nd Law Commission headed by Justice (Retd) Rituraj Awasthi issued a notification to elicit views from various stakeholders — including public and religious organisations — on the UCC. As Chief Justice of the Karnataka High Court, Justice Awasthi had ruled in favour of the Karnataka government’s order prohibiting hijab in educational institutions.
“Since more than three years have lapsed from the date of issuance of the said consultation paper, bearing in mind the relevance and importance of the subject and also the various court orders on the subject, the 22nd Law Commission considered it expedient to deliberate afresh over the subject,” the panel said.
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What happens next?
Goa already has a UCC but it dates back to the 1870s when the State was under Portuguese rule and not a part of the Indian Union. The code is not exactly uniform and makes concessions for certain religious customs. For instance, it permits a certain form of polygamy for Hindus, and Muslims in the State are governed by Portuguese law as well as Shastric Hindu law. Catholics also need not register their marriages and Catholic priests can dissolve marriages performed by the Church.
Following Uttarakhand’s footsteps, two other BJP-ruled States — Madhya Pradesh and Gujarat — have appointed committees to initiate the formulation of a UCC. A similar proposal was also a part of BJP’s election manifesto for the Karnataka Assembly polls where the Congress eventually secured a landslide victory.
Whether the Centre is likely to propose a UCC at a pan-India level is debatable. It will perhaps tread cautiously and await the outcome of the exercise undertaken by individual States first. The anticipated report of the 22nd Law Commission is also likely to be of persuasive value. However, in the recent past, there has been strong advocacy for the UCC by both Prime Minister Narendra Modi and Home Minister Amit Shah.
Ahead of the Legislative Assembly polls in Madhya Pradesh, the Prime Minister underscored that India needed a UCC as the country could not run with the dual system of “separate laws for separate communities.” Similarly, at a function to mark the birth anniversary of Ahom King Lachit Barphukan on November 24, 2022, the Union Home Minister announced, “If a nation and States are secular, how can laws be based on religion? For every believer, there should be one law passed by Parliament or the State Assemblies.” If voted to power in 2024, he said, the government would implement a Uniform Civil Code.
This renewed vigour towards a UCC is also likely to be affected by a pending query before the Supreme Court related to the “scope and ambit of the right to freedom of religion under Article 25 of the Constitution”. The question was framed by a Constitution Bench of the Supreme Court in the Sabarimala case for reference to a larger bench. Despite the passage of three years, no progress has been made on it.
