There should be a wide public consultation before UCC is framed to reflect the true intent of the public and to increase the legitimacy and acceptability of the law so framed
File photo of Pushkar Singh Dhami. PTI
Recently, the Uttarakhand government announced its intention to implement a Uniform Civil Code (UCC) in the state, and hence the formation of a high-powered committee in this regard. This move assumes significance as it may serve as a prominent model for other states to follow. At the same time, there may be some opposition to the move, which makes it imperative to understand the nuances of UCC in detail.
Historical background of the UCC
Before the advent of colonisers in India, each community had its own personal law which was later homogenised to some degree by the British for ease of administration. Notably, many aspects of personal laws remained untouched in the face of stiff opposition by the Indian masses.
A new era dawned when India’s freedom struggle gained prominence and many reforms became a subject matter of discussion. In 1941, the BN Rau Committee recommended UCC. However, there was no consensus in the Constituent Assembly about what a purported Uniform Civil Code would entail. Due to this uncertainty about what exceptions were to be there, the Assembly instead settled for the UCC to be enumerated as a Directive Principle of State Policy (DPSP) rather than a Fundamental Right. It is pertinent to note that the enumeration of UCC in DPSP highlights that UCC was a constitutional goal since the Constitution came into being.
Present position of UCC
Article 44 of the Constitution intends to secure a Uniform Civil Code for India. This is to be seen in the light of the Preamble to the Constitution which seeks to ensure the constitutional guarantee of equality of status. What is also unique about UCC is that it seeks to ensure national integration (much needed constitutional goal) by providing uniform civil code throughout the territory of India. Given the social-political scenario of the country, UCC also needs to be viewed through the lens of gender justice.
Since 1985, a catena of Supreme Court judgements has commented on the desirability of UCC. In Shah Bano (1986) and John Vallamattom (2003) cases, it was stated that the common civil code will help the cause of national integration. It further stated in the Indian Young Lawyers Association vs State of Kerala (2018) that religion-based personal laws cannot claim supremacy over the Constitution.
Social Change: Top-down or bottom up
There have been multiple attempts to bring UCC into the country through courts. However, the government recently submitted in a 2019 PIL before the Supreme Court that UCC is a policy decision and hence the domain of the legislature. A pertinent question arises at this stage: Whether the society should bring change in law, or the law should bring a change in society. This has ever remained a contentious question in jurisprudence.
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At this stage, it is notable that there have been several opinions expressed in opposition to UCC. When seen in the light of gender justice, the goal of national integration and other justice considerations, those who stand to lose their traditional influence would oppose the move for a UCC. It is here that the role of the state becomes critical where the state needs to provide protection to the marginalised and bring change in society through means of a law. Pertinently, such a change is in consonance with our constitution.
The Goan model: A guiding example
One interesting experiment is the ‘special’ Goanese civil code of 1867 which treats all Goanese people irrespective of religion or ethnicity equally in matters of succession and inheritance. The Portuguese Code prescribes the system of ‘communion of assets’ as a matter of default. It allows both partners to acquire joint ownership of all their combined matrimonial property regardless of whether it was acquired jointly or severally, or inherited before or after marriage. Women in India generally do not possess any property in their name; therefore, this setup is beneficial for their economic upliftment. Second is the concept of ‘gratuitous disposition of properties’ which means that both husband and wife can only will away their respective half share of the matrimonial property (called the ‘disposable quota’) by will or gift. This comes with the added safeguard that the will should be consented to by both spouses. Third, it allows for the facility for prenuptial agreements.
Hence, a guiding example exists for other states to follow. It should also be borne in mind that the laws should not be followed as a means of copy-pasting. Rather it should be made to suit the needs of our population which reflects their aspirations and requirements.
Way forward
It has been established through various judgements that marriage, adoption, divorce, etc, constitute secular aspects of personal life. Therefore, a UCC would be furthering the goal of secularism enshrined in the Preamble. The key aspects are the contents that UCC would entail. Given this is an exercise in the interest of the public, there should be a wide public consultation before UCC is framed to reflect the true intent of the public and to increase the legitimacy and acceptability of the law so framed.
The author is a student at NLSIU Bangalore and International Editor, Cambridge Law Review. Views expressed are personal.
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