Uniform Civil Code: Why India’s quest for a common law remains a contentious issue

Justice Shekhar Kumar Yadav of the Allahabad High Court has revived an enduring debate on one of the most contentious topics in the Indian constitutional history and politics. In the speech made at a Vishwa Hindu Parishad (VHP) event in Prayagraj on December 8, the high court judge argued for the Uniform Civil Code (UCC), remarking that its “main objective is to promote social harmony, gender equality and secularism by eliminating unequal legal systems based on different religions and communities,” and that the laws of India should align with the preferences of the majority population.

The statement has sparked intense criticism for undermining India’s constitutional secularism, catching the attention of the Supreme Court and rekindling the longstanding debate on UCC, which dates back to the Constituent Assembly.

Uniform Civil Code

UCC is a set of proposed laws governing personal matters, such as marriage, divorce, inheritance and adoption, for all Indian citizens, regardless of their religious affiliations, caste, or community. It aims to standardise the varied personal laws in India, providing a common legal framework for all citizens. While advocates hail its equalising potential, detractors argue it risks trampling India’s pluralistic ethos.

Why is UCC contentious in India?

Proponents of UCC deem it necessary for national integration and to promote gender equality by eliminating discriminatory practices within personal laws. Landmark judgements like those in the Shayara Bano (2017) and the Shah Bano (1985) cases are often cited to reinforce the argument that religious practices sometimes perpetuate inequality and a UCC could ensure justice across all communities. While the former case led the Supreme Court to declare ‘instant triple talaq’ under Muslim Personal Law unconstitutional, the latter dealt with the issue of maintenance after divorce of Muslim women under Section 125 of the Criminal Procedure Code (CrPC).

On the other hand, minority communities fear that a UCC might dilute their rights and religious autonomy, essential to India’s secular identity. UCC also walks a political tightrope, with accusations from the critics of BJP, whose push for UCC is feared to be less about equality and more about imposing a “Hindu Civil Code”. These anxieties are compounded by moves like the abrogation of Article 370, the Ram Mandir verdict, and increasing worries of cultural homogenisation under the current political regime.

UCC debates in Constituent Assembly

The discourse on UCC commenced on March 30, 1947, within the sub-committee on Fundamental Rights of the Constituent Assembly. Minoo Masani, a chief proponent of UCC, believed that the state should guarantee the Indian people a uniform law to keep the nation from being divided into “watertight compartments”. He and the likes of Amrit Kaur, Hansa Mehta, and BR Ambedkar advocated the inclusion of UCC as a fundamental right and viewed personal laws based on religion as archaic impediments to a nation’s progress toward national cohesion. BR Ambedkar, chairperson of the drafting committee of the Indian Constitution, championed it as a necessary leap towards the egalitarian modernity that the new-born nation aspired.

The idea, however, did not lack fervent opposition as those like Mohammad Ismail Khan, HC Mookerjee and Naziruddin Ahmad sounded warning flags about the potential erosion of religious autonomy and cultural pluralism.

Their argument cautioned against a hasty overhaul of personal laws and asserted that such a move could impinge on religious liberties and ignite fissures in the delicate fabric of communal harmony. Those like Mohamad Ismail made blunt assertions against the proposal, “If anything is done affecting the personal laws, it will be tantamount to interference with the way of life of those people who have been observing these laws for generations and ages.” Meanwhile, others like Naziruddin Ahmad, more measured in their approach, advocated a gradual course to the goal of UCC, which would secure the consent of the communities directly affected.

UCC as a Directive Principle

The aftermath of the partition was haunted by its scars and fraught with communal tension. The Muslim League had already pronounced the Congress “a government of Hindus,” prophesying rampant religious discrimination post-independence. Thus, in the face of precarious times, the decision to include UCC in the Directive Principles was a pragmatic compromise born of the need to stabilise a fragile democracy still reeling from the horrors of a traumatic Partition.

Nehru, as India’s first Prime Minister, even though recognised the need for UCC to foster national integration and social reform, he quickly vetted the unpreparedness of communities upon whom it could not be enforced. Thus as it, was tucked into the Directive Principles of State Policy, Ambedkar remarked, “The State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens.”

The principles of UCC, though foundational in guiding policy, were rendered non-enforceable by the courts.