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Celebrating Differences: A Case for Rejecting Uniform Civil Code in India

Updated: Mar 30




 “Our ability to reach unity in diversity will be the beauty and the test of our civilization.”- Mahatma Gandhi

India: A Pluralist Society

India is a nation characterized by its remarkable cultural, religious, and ethnic diversity, which has been shaped by centuries of migration and assimilation. From the arrival of the Aryans (Max Muller’s Aryan invasion theory) to the influence of Muslims, Portuguese, and Britishers, India has constantly been influenced by the presence of multiple communities. However, India’s practice of tolerance, resilience, and adaptability has allowed for the assimilation of these cultures and the synthesis of the concept best described as “Unity in Diversity”. This notion is exemplified in Shashi Tharoor’s words: “Indian nationalism is a rare animal indeed. The French speak French, the Germans speak German, the Americans speak English – but Indians speak Punjabi, or Gujarati, or Malayalam, and it does not make us any less Indian. It is a reality that pluralism emerges from the very nature of our country; it is a choice made inevitable by India’s geography, re-affirmed by its history, and reflected in its ethnography.” To preserve this pluralism, several rights, and privileges, right to freedom of religion (Article 25–28) and Cultural and educational rights (Article 29–30), primarily have been inserted in the Indian Constitution.

Meaning Of Secularism

The meaning of the term “secular” as used in the Indian constitution does not mean separation of religion and the state, rather it implies “Sarv Dharm Samabhav” (equal importance of all religions). The Supreme Court ruling in T.M.A Pai Foundation v. State of Karnataka emphasized that secularism in India involves acknowledging and protecting the diversity of people with varying languages and beliefs and bringing them together to form a unified India. In Kesavananda Bharati v. State of Kerala  the Supreme Court iterated that secularism was a part of the basic structure of the Constitution.

Article 44: At The Constituent Assembly

When Article 44 was discussed in the Constituent assembly, it faced a lot of criticism from the Muslim members, who considered the same as a violation of their freedom to religion. In the other side were those who wished to modify religious customs and advance secularisation and legal uniformity among all religious groups. KM Munshi, for example, opined that religion should be restricted to the private sphere and there should be promotion of unity and societal integration based on civic national identity. Consequently, to settle the matter, a vote was called whereby Uniform Civil Code (hereinafter “UCC”) was put under Directive Principles of the State, while Right to Religion was a part of the Fundamental Rights.

Currently, there are several personal laws in India governing marriage, inheritance, guardianship and other similar facets of life, along with the presence of Special Marriage Act, 1954,(“SMA”), as a secular law.

Contemporary Relevance

In the recent times, demand for implementation of Article 44 has come from the judiciary in several cases like Shah Bano and Sarla Mudgal. In Sarla Mudgal, the Supreme Court states “the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation not religion being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code.”  This statement is in ignorance of the fact that before Britishers, there were customs that governed these matters, and those customs came from religious texts as well.

When looked deeper, the actual reasons for such demands have been emancipation of women right within the institution of marriage, conflict between custom/personal law and secular laws like maintenance, and others. Rather than advocating simply for the UCC, the judiciary should rather demand amendments in the personal laws, codified or uncodified in order to remedy these issues.

Secular Laws Doesn’t Lead To Justice Automatically

There is SMA, but that also provides for the concept of right to conjugal rights, which directly impinges on the autonomy of a person especially women due to the power imbalance between man and women as beautifully explained by the Justice Choudhary in the T. Sareetha Case. SMA does not talk about the concept of irretrievable breakdown of marriage. LGBTQIA+ community remains astray from such rights and so on.

It is also needed to be understood that there is a concept of “living law”. As propounded by Ehrlich, it states that apart from the law of the state there exists law of the society (social norms), which is the living law/law in practice. People follow their social norms over legal rules as evidence in the poor implementation of Dowry Prohibition Act, 1961 and Prohibition of Child Marriage Act, 2006.  Due to such gaps between legal changes and social changes, Roscoe Poundemphasized on law as a tool for social engineering, where legal professions by carefully considering social facts/realities, gradually shape the society using law. Roscoe Pound emphasizes that while introducing a law and during its implementation, social facts are to be considered because laws lacking internalization by the people would never be truly implemented. Marriage, succession, adoption and other right are so personal to an individual that the state intervention in the same would necessary see a backlash from the people.

Uniform Criminal Law Vs Uniform Civil Law

A pro-UCC argument is that if criminal law is uniform, civil law should be too. However, it overlooks the difference between the consequences of civil law and criminal law. Social contract theory, also comes to aid here. People came together to move from the state of nature to a civil society to protect their rights and freedoms, for which laws against theft, murder, etc. make sense, but marriage, succession, adoption are completely part of an individual’s autonomy. Therefore, although to curb the evils in those like dowry, domestic violence, etc., criminal laws may be made, but in regard to these institutions, itself, freedom must be given. Robert Nozick states a just society is one that offers humans as many choices as possible but a UCC lead of curtailment of the same curtail.

How To Choose?

One of the biggest challenges in creating a UCC is deciding which customs, practices, and grounds to include. Different religions have their own unique customs and practices. Hinduism does not have a religious book dealing with succession, adoption, etc. while Islam does, so there are intrinsic differences between the religions. Choosing some practices of one over others would be favouring one religion over another. For instance, Two Muslims married under SMA, need to follow monogamy, though their religion allows polygamy.

Additionally, it is essential to protect the interests of tribal communities and their unique culture. Accommodation without assimilation has been guiding principle for them. Consequently, it is best to have multiple personal laws, customs along with a secular law catering to inter-faith marriages, same-sex marriages while making changes in the personal law to align it with the constitutional values.

Goa- Not An Ideal Example

The argument for UCC citing Goa as an example falls short as the code in Goa has exceptions and privileges for certain communities, and therefore is not truly representative of “uniformity”. For example, Hindu men are allowed to practice bigamy under certain conditions outlined in the Codes of Usages and Customs of Gentile Hindus of Goa, whereas other communities are prohibited. Roman Catholics can solemnize their marriages in church, whereas others only need a civil registration. Divorce is only allowed for Hindus on the grounds of adultery by the wife, and there are inequalities in the law concerning adopted and illegitimate children. The code has not lifted the status of women, rather according to the Goa State Commission for Women, the number of cases of domestic violence has been rising. Nearly 70% of cases filed with the Commission between September 2020 to March 2021 were caused by domestic violence. The commission received 15–20 cases of domestic violence every month.

Evolution Over The Years

It is also important to note that from the time, this article was debated in the constituent assembly, to 2023, significant changes have happened in what the constitution is today. Constitution is a living document. During 1950s, the judiciary was caution to not bring constitutional values into the spheres of marriage, succession, etc., but today, judiciary with the start of cases like Maneka Gandhi, has started venturing into the same. As of now, there is a petition in the Supreme Court to challenge Right to Conjugal rights, there is a petition to include LGBTQ+ marriage under Hindu Marriage Act, 1955, there is Naomi Petition, etc. All this shows how the constitution has evolved and how the society has changed over the years. So, simply demanding UCC without looking at this evolution is being ignorant.

Republicanism- Idea For An Ideal State

While having good laws is crucial, it’s equally important to ensure their effective implementation as poor execution can lead to significant problems. Sabrimala Temple severs as a great example for the same. The idea of republicanism given by Sandel emphasizes that moral worth/ utility of an action is to be seen, rather than just abstract rights. If the reason for allowing women into Sabrimala is solely their right to enter, it is not acceptable. Proper reasoning for taking such actions should be provided, and this applies to implementing a UCC as well. Reasons for bringing the UCC should be considered, rather than just removing the existing system.

Social Acceptance

To gather support for amendments, it is crucial to rephrase legal questions. In this regard, Ronald Dworkin emphasized that while asking the society’s opinion, there should not be double counting of votes and people should be able to express only their internal preference (what they want for themselves), not external preference (what they want for others). For instance, instead of asking if homosexuality should be legal, the question should be if an individual should have the freedom to choose their spouse. This way, both heterosexual and homosexual individuals can give only their internal preference. This would be better than imposing UCC on the people, since here, they consent to the amendments themselves.

Conclusion

Legal pluralism does not mean people can do anything they wish, but rather balance customs and personal laws with constitutional values. People should have freedom to govern marriage, succession, and adoption with personal laws unless they conflict with the constitution. For instance, Muslims can have multiple wives, but not conduct child marriages. Amendments to personal laws should expand women’s rights, like adding irretrievable breakdown of marriage as a ground for divorce. It is important to understand that each religion has its unique requirements, demanding a UCC without being considerate of the same is unwise, which would lead social backlashes and creation of a highly ineffective system causing misery.

Shashi Tharoor, Celebrating India’s linguistic diversity, Times of India (Aug. 10, 2008), https://timesofindia.indiatimes.com/shashi-tharoor/shashi-on-sunday/celebrating-indias-linguistic-diversity/articleshow/3346890.cms.

TMA Pai Foundation v. State Of Karnataka and ors, (2002) 8 SCC 481.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

Moin Qazi, What did the constituent assembly say on the uniform civil code, The Leaflet, (October 9, 2020) https://theleaflet.in/what-did-the-constituent-assembly-say-on-the-uniform-civil-code/

Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).

Mohd. Ahmed Khan v. Shah Bano Begum And Ors, 1985 (2) SCC 556.

Sarla Mudgal v. Union of India, AIR 1995 SC 1531.

id.

T. Sareetha vs T. Venkata Subbaiah, AIR 1983 AP 356.

Maliska, Ehrlich, SpringerLink (Oct. 20, 2020), https://link.springer.com/referenceworkentry/10.1007/978-94-007-6730-0_602-1.

Jagjit Singh Chhabra, The prohibition of Child Marriage Act, 2006: A good law yet ineffective, DNA India (October 13, 2022) https://www.dnaindia.com/india/report-the-prohibition-of-child-marriage-act-2006-a-good-law-yet-ineffective-2992397.

Roscoe Pound, Theory of Social Engineering, https://www.iilsindia.com/study-material/7664_1617517830.docx.

Robert Nozick – The entitlement theory of justice, Britannica (Mar. 10, 2005), https://www.britannica.com/biography/Robert-Nozick/The-entitlement-theory-of-justice.

Arun Sinha, Goa’s uniform civil code not a perfect model , Indian Express (December, 14 2022) https://www.newindianexpress.com/opinions/2022/dec/14/goas-uniform-civil-code-not-a-perfect-model-2527870.html.; Gerard de Souza, Explained: The Goa Civil Code, Hindustan Times, (May 12, 2022) https://www.hindustantimes.com/india-news/explained-the-goa-civil-code-the-new-model-for-a-uniform-civil-code-101652304333768.html.

Maneka Gandhi v. Union of India, AIR 1978 SC 597.

The Hindu Bureau, Delhi HC to hear pleas seeking recognition of same-sex marriages on April 24, (December 7, 2022) https://www.thehindu.com/news/cities/Delhi/delhi-hc-to-hear-pleas-seeking-recognition-of-same-sex-marriages-on-april-24/article66230811.ece.

Naomi Sam Irani v. Union Of India, WP(Civil), No. 1125/2017.

Aronovitch, Hilliard, and Milton C. Regan, From Communitarianism to Republicanism: On Sandel and His Critics, Canadian Journal of Philosophy, vol. 30, no. 4, 2000, pp. 621–47. http://www.jstor.org/stable/40227033.

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