By Kartikeya Misra, Debjyoti Samaddar, Shreyasi Singh, Shubhangi Verma and Yash Bhatnagar*

To start with any discussion on uniform civil code, it is important to first look at our history- both constitutional and colonial history of emergence of UCC in India. We shall start by discussing how the notion of ‘personal law’ emerged in British India and as Abhinav Chandrachud notes in his book, ‘Republic of Religion’, why colonial legislators did not enact a uniform civil code in family matters in India. We take forward this discussion and mention that while the British government adopted a policy of non-interference in religious laws, inspired by the Roman Empire where the customs of conquered people were left intact as far as they were compatible with the conqueror’s norms. However, the colonial government then repeatedly violated its own policy and legislated on religious issues. Significantly, this violation of policy faced almost no opposition when it enacted statutes that supplanted Hindu and Muslim laws in the public. At the later point, we shall use this very point to substantiate how the intentions of constitution makers were also not so much about uniformity as about tolerance of religion and respect of diversity. This, we submit, should form the basis for any reform to be brought about in personal laws.

The absence of a uniform civil code in India has its origins not in the principle of non-interference by the government in religious matters, but in the principle of freedom from interference in the home and family. This is significant because while the policy was developed during the colonial times, the colonial rulers themselves did not recognize policy of non-interference with Personal laws. During the period of British rule in India, England did not have a separate set of personal laws.  In 1836, while some accommodation was given to Catholics and others to carry out marriages according to their own rites, the fundamental rules of marriage in England (e.g. that marriages had to be monogamous and heterosexual) applied to everyone regardless of their religion.  The term ‘personal law’ was used in England in a private international law context.

How and Why Did The Colonial Rulers Bring About Policy Of Non-Interference In Personal Laws Of India?

In 1772, the first governor general of British India,  Warren Hastings, declared a plan in which he said that in all civil suits concerning ‘Inheritance, Marriage, Caste, and all other religious Usages or Institutions’, the laws of the Quran with respect to Muslims, and ‘those of the Shaster’ with respect to Hindus, would be ‘invariably adhered to’. This rule of non-interference in the civil personal laws of Indians was the formal policy of the British.

Following this, Thomas Babington Macaulay said that the government was not proposing any ‘rash innovation’, and it was not their idea to ‘shock’ the populace in India. Hence, the charter Act enacted by Britain’s parliament gave the legislature in India the power to enact law codes, but the ‘rights, feelings, and peculiar usages of the people’ and the ‘distinction of castes, difference of religion, and the manners and opinions prevailing among different races’ had to be respected.

Further, Queen Victoria’s proclamation in November 1858 declared that no person in India would be ‘favoured, molested or disquieted by reason of their Religious Faith or Observances’, and that colonial government officials would incur the Queen’s ‘highest Displeasure’ if they did not ‘abstain from all interference with the Religious Belief or Worship’ of her Indian subjects.  This proclamation, was broader than previous Hasting’s plan of 1772 for it included not merely civil personal laws, but all laws, civil as well as criminal.

Hence, the professed policy of the British in India was that of non-interference in personal religious matters. But where did this idea come from? If England always had a uniform civil code, then why is it that colonial officials applied a different set of ‘personal laws’ to the different religious groups in India ? The British in India were formally pursuing the Roman policy of accommodating the religious beliefs of the conquered territories, so long as those beliefs were compatible with their own system. This was a strategy adopted by a conqueror to govern a conquered territory.   

But despite overtly adopting a policy of non-interference in religious laws, the colonial government repeatedly violated this policy and enacted secular statutes on subjects in the impersonal sphere. Notably, the laws which sought to interfere with religious practices affecting the family were bitterly opposed by many Hindus, on the other hand, when secular laws were enacted to supplant religious laws in the public sphere, they met with little or no opposition. What this tells us is that the lack of a uniform civil code in India can be attributed not to religion but to privacy. What they were asserting, therefore, was not a right to the free exercise of religion, but a right to freedom from interference in family matters. This conclusion is important, and makes the question of Uniform Civil Code not merly about religious right, but also privacy and how far can that be extended to, specially in context of now an explicit recognition of right to privacy under article 21 and Justice Chandrachud observation in Indian Young Lawyer’s Association v Union of India, questioning the validity of State of Bombay v Narsi Appu and need to revisit it by larger bench. 

Making of The Constitution And Shift In Policy Of Non Interference

The Government of India Act, 1935 loosened the formal policy of non-interference in religious matters, which had been adopted since the time of Warren Hastings. Thereafter, the Constitution of independent India also formally renounced colonial secularism by making the enactment of a uniform civil code a directive principle of state policy.

So, for instance, in 1939, the central legislature passed the Dissolution of Muslim Marriages Act, 1939, which recognized the right of Muslim women to obtain a divorce on certain enumerated grounds, and said that the conversion of a Muslim woman to another religion did not automatically dissolve her marriage. The bill, Qazi Muhammad Ahmad Kazmi said, ‘only removes a very grave defect and is calculated to meet a very great necessity and a very great demand of the Muslim community’.  The bill did not meet with much opposition, in principle, from Muslim legislators. This is significant and somewhat in line with the previous Law Commission Report of 2018, which suggests to make amendments to the community laws itself, instead of introducing a full-fledged Uniform Civil Code. This also then gives importance to consent of the community whose laws are to be amendment and taking views of stakeholders per se. 

Having discussed the history of emergence of idea of UCC, in the part below we have put together the constitutional, judicial and the political history of UCC debate to gather the intention of Constitution makers.

Constitutional History

The framers of India’s Constitution did not adopt the earlier formal British policy of non-interference in religious matters which was articulated by Hastings, Macaulay and in Queen Victoria’s proclamation.

On 30 March 1947, the subcommittee on fundamental rights met and, in the absence of any Muslim member, decided that India should endeavour to have a uniform civil code for its citizens. Three members of the sub-committee, M.R. Masani, Hansa Mehta  and Amrit Kaur, wanted the state to mandatorily enact  a uniform civil code within five to ten years. They believed that the different religious personal laws in India had been responsible for ‘keeping the nation divided into watertight compartments in many aspects of life’. However, when the subcommittee on minorities met on 19 April 1947, it recommended that the uniform civil code, though ‘eminently desirable’, ought to be restricted and made applicable ‘on an entirely voluntary basis’.

Constituent Assembly Debates – Duality Of Thought

The clause in the draft constitution dealing with the uniform civil code was debated in the ‘Constituent Assembly on 23 November 1948’. Having discussed the history of emergence of UCC, we have here attempted to read through the Constituent Assembly Debates to gather the intention of Constitution makers to later clarify the separate nuances about the implications of Uniform Civil Code. The debate was ultimately inconclusive, but it highlighted the strong arguments for and against the UCC.

The debate at the Constituent Assembly started with Mohammad Ismail Khan introducing proviso to be inserted to Article 35 of the draft constitution, “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.”

Introducing this, he said that, “the right to follow personal law is part of the way of life of those people who are following such laws; it is part of their religion and part of their culture. The secular State which we are trying to create should not do anything to interfere with the way of life and religion of the people”. He gave examples of countries where rights of minority are safeguarded and further mentioned that the objective of safeguarding personal laws should be for all.  

He questioned “why do people want a uniform civil code, as in article 35?”  Answering the same, he held that, “their idea evidently is to secure harmony through uniformity. But I maintain that for that purpose it is not necessary to regiment the civil law of the people including the personal law. Such regimentation will bring discontent and harmony will be affected. But if people are allowed to follow their own personal law there will be no discontent or dissatisfaction.” This observation is important, and can be used to balance the rights of minorities while allowing changes to personal laws of community to ensure equality.   

This is further in line with Naziruddin Ahmad’s comment on importance of consent of the community before bringing any change to personal law. There is a certain remark which helps clarify the intention of minority which was primarily to safeguard their personal laws, and not to disallow social reforms. He notes that “I can quite see that there may be many pernicious practices which may accompany religious practices and they may be controlled.” Thereafter he mentions, “the goal should be towards a uniform civil code but it should be gradual and with the consent of the people concerned. Parliament may well decide to ascertain the consent of the community through their representatives, and this could be secured by the representatives by their election speeches and pledges.”

Whereafter Mahboob Ali Baig emphasised on idea of a secular state to mention that “People seem to think that under a secular State, there must be a common law observed by its citizens in all matters, including matters of their daily life, their language, their culture, their personal laws. That is not the correct way to look at this secular State. In a secular State, citizens belonging to different communities must have the freedom to practice their own religion, observe their own life and their personal laws should be applied to them.” On similar lines, Hussain Imam added saying that“Secular State does not mean that it is anti-religious State.”

Hence, the discussion against UCC at the Constituent Assembly debates could be summarised as:

o   Religious Freedom: Critics argue that implementing a UCC could infringe upon the religious freedom of citizens, as it might seek to override certain religious practices and customs. They view personal laws as an essential aspect of religious identity and argue that a UCC might impose a uniformity that goes against the diverse cultural and religious fabric of India.

o   Social Acceptance: Opponents believe that imposing a common code could face resistance from religious communities who consider their personal laws as sacrosanct and integral to their cultural heritage. It might lead to social tensions and resistance from religious leaders and conservative sections.

o   Cultural Pluralism: India is a diverse country with numerous cultures and traditions. Critics argue that a one-size-fits-all approach might not be appropriate in a country with such rich cultural pluralism. Different communities have evolved their legal systems over centuries, and imposing a UCC could be seen as an attempt to homogenize and dilute this diversity.

o   Logistical Challenges: Implementing a UCC could be a massive logistical challenge. The country has diverse religious and cultural groups, each with its own set of personal laws. Harmonizing and reconciling these diverse legal frameworks into a single code could be extremely complex and time-consuming.

o   Political Opposition: The issue of UCC has often been politicized, and political parties might oppose it for electoral gains. They could use the fear of losing religious identity or rights as a tool to gain support from certain vote banks.

On the other hand, supporting the idea of a Uniform Civil Code, KM Munshi mentioned that there are two basis to oppose UCC, firstly that it infringes the Fundamental Right mentioned in article 19; and secondly, it is tyrannous to the minority. Answering doubts, he submitted that as regards to draft article 19 (Religious freedom), the House has already accepted the principle that if a religious practice followed so far covers a secular activity or falls within the field of social reform or social welfare, it would be open to Parliament to make laws about it without infringing this Fundamental Right of a minority. In regards to tyranny, giving examples of countries like Turkey & Egypt, he held that nowhere in advanced Muslim countries the personal law of each minority has been recognised as so sacrosanct as to prevent the enactment of a Civil Code.

He significantly highlighted the need for UCC to secure equality of women. He notes at one point that “some of the minority members feel that the personal law of inheritance, succession etc is really a part of their religion. If that were so, you can never give, for instance, equality to women. Look at Hindu Law; you get any amount of discrimination against women; and if that is part of Hindu religion or Hindu religious practice, you cannot pass a single law which would elevate the position of Hindu women to that of men. Therefore, there is no reason why there should not be a civil code throughout the territory of India.”

This observation contains the heart and soul of the idea behind Uniform Civil Code, and requires us to look for a balanced approach to both allow minority freedom alongside promoting gender equality.

Following the same, Babasaheb Ambedkar made two main observations. Firstly,  he challenged the amendment which said that the Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India. Secondly, he discussed that merely proposing that the State shall endeavour to secure a civil code for the citizens of the country does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. He suggested voluntary model of Uniform Civil Code. Babasaheb’s suggestion is crucial and offers an alternative model of implementing of UCC, if it were to come. 

Hence, the discussion for UCC at the Constituent Assembly debates could be summarised as :

o   Equality and Uniformity: Proponents argue that a UCC would promote equality by treating all citizens equally irrespective of their religious affiliation. 

o   Gender Justice: Many personal laws in India, especially those related to marriage, divorce, and inheritance, are perceived to be biased against women, particularly in matters of divorce, maintenance, and property rights. A UCC could potentially provide more equitable provisions for women, ensuring gender justice and women’s empowerment.

o   Modernization and Progress: The existing personal laws are based on religious scriptures and traditions that might not always align with contemporary societal norms and values. A UCC would reflect a more modern and progressive approach, adapting to the changing dynamics of Indian society.

o   Simplification of Laws: Currently, Indian citizens face complexity due to multiple personal laws, depending on their religious community. A UCC could simplify the legal framework and make it easier for individuals to understand and follow the law, leading to a more efficient judicial system.

o   Secularism:  UCC is seen as a step towards reaffirming the secular principles enshrined in the Indian Constitution. It emphasizes that the state treats all religions equally and does not favor any particular religious group.

The Constituent Assembly ultimately decided to include the UCC as a Directive Principle of State Policy, rather than as a Fundamental Right. This means that the government is not legally bound to implement the UCC but is encouraged to do so. This debate on the UCC started with the framing of the Constitution and has been kept alive by judiciary as well as political class. We discuss this judicial history of UCC to look the stance of judiciary over the course of years, and whether that aligns with Law Commission’s report. 

Judicial History of Uniform Civil Code

The extent of judicial interference in personal law is limited because personal law cannot be challenged on the grounds that it violates the Constitution. This is because of a 1951 Bombay High Court judgment delivered by Chief Justice MC Chagla and PB Gajendragadkar in the case of State of Bombay v. Narasu Appa Mali. In this case, the High Court held that personal laws need not undergo the test of Part III of the Constitution and thus, are not subject to fundamental rights.

In 1985, the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, dealt with the question of whether Section 125 of the Code of Criminal Procedure, 1973, applied to divorced Muslim wives. Upholding the decision of the High Court, the Supreme Court found that Section 125 of the code applied regardless of the religion of the wife and husband. The court considered it unreasonable for a divorced Muslim wife unable to maintain herself to be forced to rely on her own relatives for maintenance. The Bench, in its judgment, also expressed a ‘regret’ that Article 44 of the Constitution has remained a dead letter. It held that a uniform civil code would help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.

After the Shah Bano’s Case, in several judgments, the Supreme Court held that it has no power to direct the Parliament to enact the Uniform Civil Code. However, they expressed a hope that the Parliament will do so. For instance, in Jorden Diengdeh v. S.S. Chopra, a 1985 judgment involving divorce under Christian law, the Supreme Court noted that the law relating to divorce was ‘far from uniform’, and the time had come for a uniform law.

Similarly, in Sarla Mudgal v. Union of India, Justice Kuldip Singh expressed his disappointment over the fact that Article 44 of the Constitution had been kept in ‘cold storage’ as he felt that a uniform civil code would constitute ‘a decisive step towards national consolidation’. He stated that no community can ‘claim to remain a separate entity on the basis of religion’. He held that Article 44 of the Constitution was ‘based on the concept that there is no necessary connection between religion and personal law in a civilised society’. While Article 25 guaranteed religious freedom, Article 44 seeks to divest religion from social relations and personal law. He considered ‘marriage, succession and like matters’ to be of a ‘secular character’ that were not guaranteed by the constitutional freedom of religion. He asked the government to take a ‘fresh look’ at Article 44 and to even file an affidavit in court explaining the steps it had taken towards enacting a uniform civil code.

Again, in 2003, John Vallamattom, a Christian priest, challenged the constitutional validity of Section 118 of the Indian Succession Act claiming that it was discriminatory against Christians by placing restrictions on their ability to will away land for charitable and religious purposes. A three-judge bench struck down the provision, referred to Sarla Mudgal, and said that marriage, succession and similar matters of a secular character cannot be brought within the right to freedom of religion under Article 25. The court reiterated Sarla Mudgal by saying that a UCC will help national integration by removing the contradictions based on ideologies.

An interesting point to note here is that Justice Sahai in his ‘concurring’ judgment in Sarla Mudgal’s case disagreed with Justice Kuldip Singh over the question of a uniform civil code and the secular character of personal law. He felt that personal laws are ‘religious in nature and content’ and though a uniform civil code was desirable, it could ‘concretize only when the social climate is properly built’. He held that the government could consider enacting a law which barred a married man from taking on a second wife after converting to another religion unless he divorced his first wife.

The observations of Justice Sahai in the Sarla Mudgal Case can also be seen in the 1996 Supreme Court verdict in Pannalal Bansilal Pitti v. State of Andhra Pradesh. The court in this case sounded a note of caution, though in a slightly different context. The question in this case was whether the government should enact a uniform law dealing with all religious and charitable endowments, and not a uniform civil code. Though the court said that uniformity in those matters was ‘highly desirable’, it found that a uniform endowment law would possibly be ‘counter-productive’ to the ‘unity and integrity of the nation’, where ‘gradual progressive change’ was necessary. The court held that instead of enacting a uniform law ‘in one go’, it was preferable to remedy ‘acute’ defects in the law, through a ‘slow process’ of legislation. This judgment recognised that India is a pluralist society with different religious beliefs and tenets.

With both views and judgments on the enactment of uniform civil code, doubts have been expressed over the correctness of the Bombay High Court’s judgment in Narasu Appa Mali’s case. In C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami, the Supreme Court held that personal laws, derived as they are from religious scriptures, must be consistent with the Constitution and can become void if they violate fundamental rights. In 2014, in Shabnam Hashmi v Union of India, a case involving adoption, the court said that the Juvenile Justice Act is a small step in reaching the goal of a uniform civil code, by laying down a procedure for a prospective parent to adopt an eligible child. The court said that personal beliefs and faiths, must be honoured, but legislation cannot be stultified by personal law.

The most recent judgment of Shayara Bano v Union of India involving an archaic practice of triple talaq reinitiated the conversation around religion, personal law, and uniform civil code. The issue of UCC came up because one of the counsels brought up the Constituent Assembly debates in his submissions, and said that the intent of the Constituent Assembly was to protect ‘personal laws’ of different communities by elevating their stature to that of other fundamental rights. The Court concluded that “this leads to the clear understanding, that the Constitution requires the State to provide for a uniform civil code, to remedy and assuage maladies.” What is most interesting to note is that in February 2017, the Supreme Court, in this very case, refused to hear the Uniform Civil Code issue along with the triple talaq issue. The bench said that the triple talaq and  Uniform Civil Code are separate issues.

Global Outlook

The unique nature of Indian society, with its inherent diversity (and with it, the differences), and the half-baked attempts by the British to regulate it from the lens of colonialism, resulted in some progressive developments, but the conflict between tradition and modernity was still the focal points of these debates. In other parts of the world, similar steps had been taken, and while there are few societies in the world with the diversity which India has, it would be prudent to see if the UCC has been successful in practise in other jurisdictions.

The concept of a uniform set of laws governing the citizens of a State is not a new one. Political theorists have debated the intermingling of religion, law and morality for centuries. In India as well, the Constituent Assembly debates extensively discussed the merits of the same. In other parts of the world, several jurisdictions have attempted to reconcile cultural and religious differences and have figured out a way to ensure that religious practices that are antithetical to basic human rights are not a bar to the laws of the state. There are a few countries that have implemented the UCC (or versions of it). These countries include: 

o   France has a civil code that applies to all citizens, regardless of religion. This code was first established in 1804 and has been amended several times. 

o   Italy has a civil code that was first established in 1865 (another one was established in 1942). This code has been amended several times since then, but it still applies to all citizens, regardless of religion. 

o   Portugal has a civil code that was entered into force in 1967. This code applies to all citizens, regardless of their religion. 

o   Spain has a civil code that was first established in 1889. This code has been amended several times since then, but it still applies to all citizens, regardless of religion. 

o   Egypt has a civil code that was first established in 1949. This code has been amended several times since then, but it still applies to all citizens, regardless of religion. 

o   The United States does not have a uniform civil code, but some states have adopted their own versions of a UCC. For example, California has a Family Code that applies to all citizens, regardless of religion. 

o   Ireland has a civil code that was first established in 1937. This code applies to all citizens, regardless of their religion. 

It is important to note that the specific laws that apply to each country’s uniform civil code may vary. Additionally, some countries may have separate laws for certain personal matters, such as inheritance, not covered by the uniform civil code. 

The only state in India that has implemented a Uniform Civil Code is Goa. The Goa Civil Code was enacted in 1961, and it applies to all citizens of Goa regardless of their religion. The Code covers various matters, including marriage, divorce, inheritance, and adoption.  The Goa Civil Code is considered to be a progressive piece of legislation. It gives women equal rights to men in all matters, and it prohibits polygamy and child marriage. Many legal experts have praised the Code, which has been cited as an example of how a Uniform Civil Code could be implemented in other parts of India. 

* Kartikeya Misra, Debjyoti Samaddar, Shreyasi Singh, Shubhangi Verma and Yash Bhatnagar are members of the Kautilya Society at Dr. Ram Manohar Lohiya National Law University, Lucknow.