DECODING THE INTERPLAY BETWEEN RELIGIOUS PLURALISM AND THE UNIFORM CIVIL CODE: NAVIGATING COMPLEX LEGAL THREADS

ABSTRACT

India’s diverse religious landscape has led to the existence of distinct personal laws for various religious communities, shaping legal frameworks for marriage, succession, adoption, and guardianship. This diversity, while preserving religious autonomy, poses challenges in maintaining uniform justice, especially in matters of succession, marriage, divorce, adoption and guardianship. The complex nature of personal laws often hinders equitable distribution of justice, prompting the consideration of a Uniform Civil Code. To address this, the idea of a Uniform Civil Code (UCC) was earnestly proposed in the Constituent Assembly in 1947. The UCC aims to establish a uniform set of laws applicable to all citizens, regardless of religious affiliation, fostering national consolidation and resolving issues related to the disparate application of justice. India’s rich diversity encompasses 398 languages, with 387 actively spoken and 11 extinct. Hinduism alone has diverse sub-cultures, each with unique traditions. Enforcing a single set of personal laws across all religions and sub-sects would jeopardize the distinctiveness and richness of India’s cultural and religious diversity. This article endeavors to unravel the intricate relationship between religious pluralism and the uniform civil code, delving into complex legal aspects. By spotlighting the imperative and obstacles in implementing the Uniform Civil Code in India, it aims to provide a nuanced understanding of the interplay between diverse religious practices and the pursuit of a uniform legal framework.

Keywords

Uniform Civil Code, Secularism, Personal Laws, Gender equality, Equal Justice, Shah Bano case, Article 44, National Integration, DPSP.

INTRODUCTION

India, as a secular state i.e. it does not follow any particular religion and abstains from endorsing any specific religion as its official faith. This fundamental principle implies that the government operates independently of religious institutions, ensuring that decisions are not influenced by any particular faith. Likewise, religious matters remain beyond the purview of state interference, fostering a separation between religious practices and the functioning of the state. Boasting a robust military, considerable cultural influence, and a rapidly growing economy, India stands as a highly diverse country with a multitude of linguistic, cultural, and religious identities. The 2001 census indicates that 80.5% of the population practices Hinduism, while Islam, Christianity, Sikhism, Buddhism, and Jainism constitute other major religions[1]. Additionally, there are various minor tribal traditions. Religion plays a pivotal role in shaping India’s culture, with a profound impact on its politics and society. For the majority of Indians, religion is not merely a belief system but an intrinsic aspect of life. While citizens enjoy the freedom of religion, Article 44 urges the state to implement a uniform civil code. Despite over 70 years, the challenge persists in achieving the required sophistication to embrace and implement this constitutional mandate.

OVERVIEW OF RELIGIOUS PLURALISM IN INDIA

India’s diverse culture, languages, and religions have been present since ancient times, leading to religious pluralism. This pluralism acknowledges the coexistence of multiple religions and their transcending boundaries. This pluralism entails two aspects: the recognition that India has been home to multiple religions since ancient times and the acknowledgment that each religion encompasses various cultural and social elements that transcend religious boundaries[2].

Thus, religious tolerance is the cornerstone of Indian secularism and religious pluralism is the hallmark of Indian culture. The foundation of religious secularism is the belief that all religions are equally moral and ultimately lead to the realization of God. The Preamble of the Indian Constitution declares the establishment of a ‘Secular’[3] Democratic Republic, denoting that the state does not favor any specific religion and is prohibited from discrimination based on religion. Religious plurality leading to secularism, according to S.R. Bhatt[4], represents a complicated interpretive process in which there is transcendence of religion and yet there is a union of multiple religions. In a pluralistic society, it creates a bridge between religions, allowing each to transcend the obstacles posed by their differences.

EVOLUTION AND CRITIQUE OF UNIFORM CIVIL CODE

India is a secular state with single citizenship and the state guarantees equal enforcement of basic rights for all citizens, transcending distinctions of ethnicity, creed, gender, caste, or place of birth. The Constitution envisions a just and equal state, necessitating uniformity in laws. Nehru, when questioned by French writer Andre Malraux about his post-independence challenges, identified the establishment of a secular state amidst a religious world is the only way to create a just state[5]. At independence, India faced challenges of illiteracy, weakness, and feudalism, compounded by the recent partition horrors. The constitution dismantled traditional societal structures, eradicating the caste system and untouchability, establishing equality and the rule of law with universal rights. Despite these advancements, India’s multicultural and pluralistic society integrates faith into its legal fabric, necessitating constitutional framers to devise a civil code, which was outlined in Article 44 of Part IV of the Constitution, to govern the diverse legal landscape and ensure equal rights for all citizens.

Article 44: “The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India.”[6]

A Uniform Civil Code aims to establish a single law applicable to the entire nation, encompassing all religious communities in personal matters like marriage, divorce, inheritance, and adoption. Its objective is not only to achieve consistency across different communities but also within each community, promoting gender equality. In 1941, the BN Rau Committee[7] proposed a codified Hindu law, advocating for equal rights for women in line with contemporary societal trends. However, the Constituent Assembly debates indicate a lack of consensus on the specifics of a potential uniform civil code as the concept of a Uniform Civil Code was considered as the antithesis of the existing personal laws, which form a distinctive and unique feature within the Indian legal system.

During the constituent assembly’s debate on this article, considerable opposition and protest emerged, particularly from Muslim members and Orthodox Hindus. They perceived the proposed reforms as a significant departure from Hindu traditions and unwarranted interference with caste norms and traditional gender relations[8]. Muslims contended that their laws on descent, marriage, adoption, succession, and divorce were inseparable from their religion, asserting that a uniform civil code would impinge on religious freedom[9]. Other group argued that the State is not compelled to abolish personal laws; it is merely granted authority. Hence, there is no need for concern that the State, possessing this authority, will promptly exercise it in a manner deemed objectionable by Muslims, Christians, or any other community in India.

Mr. M.C. Chagla, a former Minister, passionately advocated for a uniform civil code, emphasized that Article 44 is a mandatory provision binding the government[10]. He stressed the government’s responsibility to implement this provision, as the constitution applies to the entire country. Therefore, every section and community must acknowledge and adhere to its provisions and directives. Nehru expressed that “currently, the circumstances in India are not conducive for me to attempt to enforce a uniform civil code. I aim to prepare the ground for it[11].”

LEGAL COMPLEXITIES WITHIN PERSONAL LAWS

Upon scrutinizing personal laws, it becomes evident that women have historically been relegated to an inferior position compared to men, highlighting India’s enduring patriarchal nature dating back to ancient times. In various aspects of personal affairs, particularly in discussions related to matrimony, succession, adoption, and inheritance, women are consistently regarded as subordinate to men. Numerous instances substantiate and reinforce this perspective.

In the realm of Hindu Law, prior to 1955, polygamy was widespread among Hindus, and Hindu women were limited in their property ownership, holding only a limited estate known as Stridhan. This limited interest extended to property-related decisions, such as desertion, mortgaging, or selling, where autonomy was restricted. In matters of adoption, Hindu women lacked the individual right to adopt and were not recognized as the natural guardians of their children during their husbands’ lifetimes. These instances underscored the patriarchal nature of Indian society. Although the Hindu law underwent codification, discriminatory provisions persisted post-1956. Notably, four Indian states, Andhra Pradesh (1986), Tamil Nadu (1989), Maharashtra (1994), and Karnataka (1994), acknowledged the need for gender equality in economic and social spheres and introduced amendments granting daughters the status of coparceners by birth, mirroring the rights traditionally afforded to sons. This progression continued with the Amendment Act of 2005, which further elevated the daughter’s status to that of a coparcener, signaling a significant stride towards gender equality within the framework of the Hindu Succession Act, 1956.

In the context of Muslim Law, the historical backdrop in pre-Islamic Arabia marked women with a secondary status in a patriarchal society. While the Holy Quran advocates equal rights for men and women, certain aspects in Islam perpetuate insecurity and inferiority for Muslim women, particularly wives. In Islam, a man can have up to four marriages, while women are restricted, facing social stigma if they do so. The right to divorce was also imbalanced, with husbands pronouncing triple Talaq, a highly discriminatory practice. In matters of succession also, Muslim women face inequality. Residuary inheritance further favors Muslim males, granting them twice the share of females. Maintenance rights are limited for Muslim wives, confined to the Iddat period, raising controversies over the application of secular laws like the Criminal Procedure Code. The Criminal Procedure Code mandates husbands, irrespective of religion, to provide maintenance for their wives, including divorced wives, until they can sustain themselves. While this is a secular law applicable universally, controversy surrounds its adherence by Muslim men.

In the renowned case of Mohd Ahmed Khan v. Shah Bano Begum[12], Chief Justice Y.V. Chandrachud ruled that Section 125 of the CrPC is applicable to Muslims, holding a Muslim husband responsible for supporting his divorced wife beyond the iddat period. This sparked controversy, leading to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, which effectively negated the Shah Bano judgment. According to the new law, a Muslim husband is not obligated to maintain his divorced wife beyond iddat unless both spouses voluntarily opt for CrPC governance. This provision, while existing, raises concerns about prioritizing personal law over justice for women in distress.

Examining various codified laws reveals both similarities and differences in the definition, solemnization, registration, and dissolution of ‘marriage’. Despite laws like the Indian Age of Majority Act, Prohibition of Child Marriage Act, and POCSO Act prohibiting marriage under 18, Hindu law deems a marriage between a 16-year-old girl and an 18-year-old boy as valid but voidable. Muslim Law acknowledges the marriage of a minor post-puberty, with variations among Shias and Hanafi Sunnis. Complications extend to issues like guardianship, impacting decisions on medical care and marital home disputes. Marriage registration conflicts arise under the Hindu Marriage Act (HMA) as it accommodates various customary practices. In Muslim and Christian Law, the marriage contract or registration is obligatory, while for Parsis, temple registration is a must.

Adultery, as grounds for divorce, is recognized in Hindu, Muslim, Christian, and Parsi marriage laws, albeit with differing definitions. Christian law mandates a woman to prove both cruelty and adultery for divorce. Muslim law, however, doesn’t consider adultery as grounds for a woman unless it involves “women of evil repute or leads an infamous life”.

In Hindu law, a husband can seek divorce for adultery, while the wife must prove cruelty or desertion along with adultery for divorce. Parsi law permits both spouses to seek divorce for adultery. The contentious issue of Triple Talaq, instant divorce by Muslim husbands, has faced Supreme Court scrutiny and public debates. Practices like Muta (contract marriage), Nikah halala (intercourse after divorce), etc., have raised concerns about women’s protection, dignity, and privacy, prompting legal and public examination.

Similarly, the concept of ‘desertion’ and abandonment varies across religions. The duration of separation required for a wife to seek divorce differs: two years for Hindus, four years for Muslims, and two years for Parsis under their respective marriage acts. Sikhs, governed by the Anand Marriage Act, face controversy as it doesn’t acknowledge divorce or adoption. Sikh couples registering or seeking divorce under the Hindu Marriage Act have faced opposition from Sikh groups and leaders.

Examining gender imbalances in adoption and guardianship laws shows that the Hindu Minority and Guardianship Act, 1956, designates the father as the ‘natural guardian’, followed by the mother, for boys and unmarried girls. In Muslim law, governed by the Shariat Application Act of 1937, the mother has guardianship of a daughter until maturity, while a son remains under her care until he can handle basic functions. Christians lack specific provisions, relying on the “best interest of the child” principle. The Parsi Marriage and Divorce Act, 1936, empowers the court to decide interim custody.

In Hindu law, an adopted child holds an equal status to a natural-born one. Islamic law does not acknowledge adoption, and there is no specific Christian adoption statute in India. Both Hindus and Christians can adopt by obtaining court permission under the Guardians and Wards Act. Ongoing legal challenges aim to amend the Hindu Succession Act, addressing discrimination in succession laws between heirs of deceased men and women regarding self-acquired property.

The rights of widows and married daughters need to be streamlined. The Indian Succession Act of 1925 primarily addresses testamentary succession for non-Muslims and intestate succession for non-Hindus and non-Muslims. Among Parsis, a woman marrying outside the community forfeits her Parsi status, affecting her children’s entitlement to inherit from a deceased Parsi intestate. The Law Commission, in 2018, identified its unfairness towards widows and mothers of intestate individuals and recommended to acknowledge inheritance rights for illegitimate children, relevant in the context of contemporary scenarios like live-in relationships, recognized by courts as akin to marriage.

The discriminatory nature of provisions within personal laws poses a substantial challenge to gender equality and justice. These provisions underscore the compelling rationale behind advocating for the implementation of a Uniform Civil Code.

RATIONALE FOR IMPLEMENTING A UNIFORM CIVIL CODE

In the present context, the call for a Uniform Civil Code (UCC) is rooted in two key factors, one forming the basis and the other offering substantial support. These pivotal factors revolve around gender justice and national integration. The argument asserts that India, as a secular and progressive nation, should move beyond caste and religious politics. The challenge arises when diverse groups are governed by laws associated with their religious affiliations. Advocates propose that, akin to criminal laws, civil laws should be universally applied, ensuring equality and eliminating the dilution of this principle seen in the application of varied personal laws. The implementation of the UCC is seen as a means to grant equal status to all citizens in areas where it has not been extended yet.

The argument for national integrity was also articulated in the legal realm. In the case of Mohd. Ahmed Khan v. Shah Bano Begum and Ors[13]., Justice Chandrachud emphasized that a uniform civil code would promote national integration by eliminating conflicting loyalties to laws with divergent ideologies. He noted that the responsibility lies with the State to ensure a uniform civil code, as it possesses the legislative competence to address this matter.

Similarly, Justice Kuldeep Singh, in the case of Sarla Mudgal v. Union of India[14]., stressed the necessity of a unified code for safeguarding the oppressed and fostering national unity. Consequently, the demand for the Uniform Civil Code, echoing the “One Nation, One Law” mantra, intensified, aspiring for a comprehensive and consistent legal framework governing all aspects of human life. Advocates argue that it would establish not only uniformity among different communities but also within each community.

The justification for a Uniform Civil Code (UCC) also stems from the imperative of gender equality. Personal laws, chiefly governing marriage, reflect historical gender subjugation. Judicial scrutiny of women’s matrimonial rights supports the UCC advocates. Discrepancies within personal laws perpetuate gender inequality, and underscore the pressing need for a UCC to rectify gender-based inequities entrenched in various personal laws. This argument gets further support from number of cases. The court when discussing the guardianship right of the mother in the case of ABC v. State (NCT of Delhi)[15], commented on it and emphasized India’s secular nature, asserting the essential separation of religion from law”. In John Vallamatton and Anr. v. Union of India[16]., the court not only invalidated section 118 of the Indian Succession Act, deeming it arbitrary, unreasonable, and discriminatory under Article 14 but also urged Parliament to enact the Uniform Civil Code. In the 2021 judgment of Satprakash Meena v. Alka Meena[17], the Supreme Court underscored the need for a Uniform Civil Code, advocating for uniform principles in areas such as marriage, divorce, and succession to establish clarity, safeguards, and consistent procedures, alleviating citizen struggles arising from conflicts in personal laws.

CHALLENGES AND CONCERNS SURROUNDING THE UNIFORM CIVIL CODE

It is relevant to note that the Uniform Civil Code is positioned within Article 44, a segment falling under the Directive Principles of State Policy (DPSP), rather than being incorporated into the mandatory articles (i.e. Part III). This decision was influenced by strong resistance within the constituent assembly. Recognizing the potential detrimental impact on the country’s diversity, the assembly deemed it inappropriate to make the UCC an enforceable provision. Demanding forceful enforcement of all DPSP provisions is considered a precarious path.

The main obstacle in implementing the Uniform Civil Code in India lies in Article 25 of the Constitution, which guarantees Freedom of Religion as a Fundamental Right. Minorities argue against the code, citing Article 25, asserting their right to practice and propagate their religion, including managing personal laws based on their community’s beliefs. The introduction of the Uniform Civil Code is contested as it is seen as potentially violating the fundamental rights enshrined in Article 25, whereas Article 44 is a non-enforceable Directive Principle of State Policy.
Although Article 44 envisions uniformity in personal laws, the inclusion of personal laws in the concurrent list signifies the safeguarding of diversity in personal laws.
Marriage holds religious significance in many faiths, such as Christianity, where it is considered a sacrament. The Uniform Civil Code’s provision for registering marriages before an official authority is seen as disrespectful to this sacred rite. Additionally, the code could eliminate practices like pre-marital counseling, interfering with religious freedom. Overall, the UCC is perceived as targeting and impinging upon religious practices, impacting the free exercise of one’s faith.
Article 29 safeguards the minorities’ right to preserve and protect their distinct culture. UCC brings a legitimate fear among minorities, that it would destroy their unique culture and traditions. Such a scenario poses a threat to India’s secularism, contradicting the Constitution’s foundational principles of preserving the nation’s diverse traditions.

The Supreme Court of India has consistently emphasized that “unity in a nation does not necessarily require uniformity”. In the case of T.M.A Pai Foundation v. State of Karnataka and Ors.,[18] the Court asserted that Indian secularism entails acknowledging and safeguarding the diversity of people with distinct languages and beliefs, uniting them to create a cohesive and united India.

4. The proponents of the Uniform Civil Code also assert that it will eliminate undesirable practices such as polygamy and facilitate equal inheritance for women. However, this argument lacks substance. Reforms promoting equality can be implemented within existing personal laws, as demonstrated by the amendment to the Hindu Succession Act, which granted women an equal share in their father’s and husband’s properties.

5. Articles 371 A to 371J and the Sixth Schedule of the Indian Constitution extend specific protections to certain states like Assam, Nagaland, Mizoram, Andhra Pradesh, Telangana, Arunachal Pradesh, Goa, and Karnataka. The discussions on the Uniform Civil Code oppose the constitutional safeguards provided to these states, particularly the tribal communities that follow their own customary laws and have their own adjudicatory system[19].

6. Adoption of the Uniform Civil Code encounters hurdles in addressing minority concerns, including fears of separatism, conservatism, and misconceived notions about personal laws. Many minorities express a sense of insecurity, apprehension about losing their identity, and feeling marginalized within Indian society, fearing the imposition of a majoritarian perspective on minority religions if the UCC is implemented.

7. Drafting poses a major hurdle in implementing the UCC, other than consensus-building. Without a guideline or vision document, it remains unclear whether the UCC should amalgamate existing personal laws or create an entirely new, common law in line with constitutional mandates.

UNIFORM CIVIL CODE IN GLOBAL CONTEXTS

Various nations globally have embraced diverse forms of Uniform Civil Code (UCC). A comparative analysis of these systems can offer valuable insights into the application and repercussions of implementing a UCC in India.

One of the first nations to adopt a uniform civil code was France in 1804. The Napoleonic Code, sometimes referred to as the French Civil Code, is a comprehensive set of civil laws that addresses many facets of civil life, including inheritance, family, and property. The code is applicable to all French people, regardless of their religion, and is founded on the ideas of liberty, equality, and fraternity[20]. Religious communities do, however, have considerable discretion over their private matters, such as marriage and divorce, so long as they don’t transgress principles of Public Order.
Indonesia adopted the Civil Code on April 29, 1847, applicable universally regardless of religious affiliations. The Code encompasses three sections. Book One addresses individual rights and responsibilities, covering divorce, maintenance, guardianship, parenting, annulment, minorities, marriages, and property separation. Book Two, titled “Property,” concerns land possession, mortgages, wills, succession, and debts. Book Three focuses on “Contracts” and outlines fundamental conditions for contractual obligations. Indonesia, a predominantly Muslim nation, challenges stereotypes by demonstrating respect for diverse faiths.[21]
Another nation that has adopted a UCC is Turkey. The Swiss civil Code served as the model for the Turkish Civil Code, which was enacted in 1926 and addresses a number of civil life issues. The code guarantees gender equality in areas of marriage, divorce, and inheritance for all Turkish citizens, irrespective of their religious beliefs. However, the code received several criticisms from various religious communities, including the Kurds and the Alevis, for being excessively secular and for going against their traditional customs.[22]
Tunisia enacted a UCC in 1956. The Code of Personal Status of Tunisia addresses a number of personal life issues, including inheritance, divorce, and marriage.[23] The code incorporates contemporary ideas of human rights and gender equality in addition to its foundation in Islamic law. Although the code has been praised as a template for other Arab nations to adopt, conservative Islamic organizations have criticized it, arguing that it violates Islamic law.
Countries such as the United States and Canada lack a Uniform Civil Code. Instead, the legal system is based on common law, which is a system of legal precedent that is developed through court decisions. States and provinces have different laws that regulate several aspects of family law, including inheritance, divorce, and marriage.

Examining the implementation and effects of a Uniform Civil Code (UCC) across diverse nations underscores the significant influence of social, cultural, and political contexts. Success varies, with some nations facing resistance from religious and cultural factions. Implementing a UCC in India demands careful consideration of the country’s distinctive cultural and religious diversity, emphasizing the preservation of equality, justice, and the rights of minorities.

CONCLUSION

In conclusion, it can be said that Article 44 holds substantial significance in guiding the governance of India, although not legally enforceable. The Uniform Civil Code (UCC) debate, stemming from constituent assembly debates to the present, revolves around complex issues. Advocates emphasize national integrity and gender justice, while opponents cite plurality and religious freedom. The core of the UCC discussion lies in balancing the right to religious freedom with the constitutional commitment to non-discrimination based on sex. Despite sporadic laws enacted since 1954, progress towards a UCC has been slow due to the challenge of consensus. To achieve a comprehensive UCC, reforms based on gender equality, non-discrimination, and common applicability should be drawn from personal laws. Awareness through community discussions is crucial for fostering consensus and facilitating a unified legal and religious history for India.

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[1] Riya puniyani, Uniform Civil Code And Conflicts Of Personal Laws, SSRN, (Jan 23, 2024, 9:45 PM), https://papers.ssrn.com.

[2] Gauravi Mishra, Contention Between Uniform Civil Code And The Principle Of Secularism In The Indian Constitution, 7 SALRJ 121, 123-134, (2021).

[3] INDIA CONSTI, preamble, amended by The Constitution (Forty Second Amendment) Act, 1976.

[4]Religious Pluralism In India: As Pact And Value, https://www.egyankosh.ac.in/bitstream/123456789/21694/1/Unit-17.pdf (last accessed Jan 24, 2024)

[5] Andre Malraux, Antememoirs 145 (Hamish Hamilton Publishing House, London, 1968).

[6] INDIA CONST. art. 44.

[7] Rau, B. N., and Hindu Law Committee. “Report of the Hindu Law Committee.” (1947).

[8] Ram Chandra Guha, India After Gandhi 230 (Picador India, London, 2007).

[9] CAD, vol. 8 543-6, 722-3.

[10] Leepakshi Rajpal, Uniform Civil Code and Its Legal Dimensions, 5 JRIBM 52-57, (2017).

[11] D.E. Smith, India as a Secular State 326 (Princeton University Press, London, 1963).

[12] AIR 1985 SC 945.

[13] 1985 SCR (3) 844.

[14] 1995 AIR 1531.

[15] (2015) 10 SCC 1.

[16] JT 2003 (6) SC 37.

[17] Ahmar Afaq & Dr. Sukhvinder Singh Dari, Understanding Uniform Civil Code: Its Need And Challenges, 11 RLJ (2023).

[18] (2002) 8 SCC 481.

[19] Ahmar Afaq & Dr. Sukhvinder Singh Dari, Understanding Uniform Civil Code: Its Need And Challenges, 11 RLJ (2023).

[20] Lallemant, Aude, The Napoleonic Code, The Oxford International Encyclopedia of Legal History, edited by Stanley N. Katz, Oxford University Press, 2009

[21] Abhishek Jena, “Uniform Civil Code, Legal Pluralism and Indian Constitution”, 4 IJLMH 2093, 2102-2103 (2021), https://ijlmh.com/.

[22] Yildirim, Nikhet, “The Secularization of Turkish Civil Law in Law and Legality in the Ottoman Empire and Republic of Turkey”, edited by Kent F. Schul & 2 others, 199-220, Bloomington: Indiana University Press, 2016.

[23] Wolff, C, Women and the law in the Muslim world: A comparative perspective. Routledge. p. 30 (2016).

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