UNIFORM CIVIL CODE IN INDIA: A BINDING OBLIGATION UNDER INTERNATIONAL AND

DOMESTIC LAW
Author(s): Jyoti Rattan
Source: Journal of the Indian Law Institute , October-December 2004, Vol. 46, No. 4
(October-December 2004), pp. 577-587
Published by: Indian Law Institute

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 577

UNIFORM CIVIL CODE IN INDIA: A BINDING

OBLIGATION UNDER INTERNATIONAL
AND DOMESTIC LAW

UNDER INTERNATIONAL law, a state that ratifies an international

instrument becomes legally bound to implement its provisions.
Accordingly, India having ratified the International Covenant on Civil and
Political Rights, 1966, and International Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW),
1979, is bound to enforce the relevant provisions and ensure gender
equality under national laws. However, women in India under Hindu,
Muslim and Christian laws continue to suffer discrimination and
inequalities in the matters of marriage, succession, divorce and
inheritance. So as a step towards a gender just code, the personal laws of
various communities in India need a closer look and reform, not only in
compliance with the Indian Constitution but also as per the provisions of
the international law.

The shadow of international law over

gender inequality in India

The international mechanism for monitoring the compliance of the

legally binding provisions of the CEDAW by a state party is the
Committee on the Elimination of Discrimination Against Women.
Prevalence of discrimination against women under various personal laws of
different communities in India was openly accepted by India in its
periodic report before the United Nations Committee on the Elimination of
Discrimination Against Women when it admitted, "The personal laws of
the major religious communities had traditionally governed marital and
family relations, with the Government maintaining a policy of non-
interference in such laws in the absence of a demand for change from
individual religious communities."'
India has been submitting periodic compliance reports vis-à-vis the
implementation of the CEDAW, to this committee. This committee
expects India's compliance to the provisions of the said international
instrument and "noted" that "steps have not been taken to reform the

1. United Nations, Report of the Committee on the Elimination of Discrimination

Against Women, Supp. No. 38, A/55/38, 22nd Session 17 Jan-4 Feb 2000 and 23rd
Session 12-30 June 2000, General Assembly Official Records, New York, 2000 at 8.

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578 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 46 : 4

personal laws of different religious and ethnic groups, in consultation

with them, so as to conform to the Convention," and warned that "the
Government's policy of non-intervention perpetuates sexual stereotypes,
son preference and discrimination against women."2 The committee also
"urged the Government to withdraw its declaration to Article 16,
paragraph 1 of the Convention and to work with and support women's
groups as members of the community in reviewing and reforming these
personal laws,"3 and expected the government "to follow the Directive
Principles in the Constitution and Supreme Curt decisions and enact a
uniform civil code that different ethnic and religious may adopt."4
The Human Rights Committee, the international mechanism for
monitoring the compliance of another international instrument, the
International Covenant on Civil and Political Rights, 1966, at its meeting
held on 30 July 1997, after considering the third periodic report of
India,5 also observed that women in India have not "been freed from
discrimination," and expressed serious concern that they "are subjected to
personal laws which are based on religious norms and which do not accord
equality in respect of marriage, divorce and inheritance rights," and
stressed that "the enforcement of personal laws based on religion violates
the right of women to equality before the law and non-
discrimination." Therefore, the Human Rights Committee did not favor
such a violation of the human rights of women in India to continue and
recommended to the Government of India that "efforts be strengthened
towards the enjoyment of their rights by women without discrimination and
that personal laws be enacted which are fully compatible with the
Covenant."6
India no doubt is a secular country with people of different religions
enjoying different personal laws. But these personal laws, at times, reflect
glaring gender inequalities and discrimination against women. Rebecca
J. Cook rightly points out that although the Indian Constitution contains
articles mandating equality and non discrimination on the grounds of sex,
strangely however, several laws exist that apparently violate these

2. Id. at 10.
3. India's Declarations to CEDAW. With regard to Art. 5 (a) and 16(1) of the
Convention on the Elimination of All Forms of Discrimination Against Women,
"the Government of the Republic of India declares that it shall abide by and ensure
these provisions in conformity with its policy of non interference in the personal
affairs of any Community without the initiative and consent."
4. Supra note 1 at 10.
5. India's Third Periodic Report (CCPR/C/76/Add.6) considered at its 1603rd
to 1606th meetings on 24 and 25 July 1997 and subsequently adopted at 1612th
meeting (sixtieth session) of the Human Rights Committee available at http://
wwwl.umn.edu/humanrts/hrcommittee/india1997.html.
6. Available at http://wwwl.umn.edu/humanrts/hrcommittee/india1997.html.

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2004] NOTES AND COMMENTS 579

principles and continue to be there especially in personal laws of certain

communities with provisions that are highly discriminatory against
women. The situation is further criticized when it is pointed out that "the
Indian state has, however, made no effort to change these laws or
introduce new legislation in conformity with Constitutional principles. In
fact, the Indian government seems to have chosen to ignore these
principles completely and acts as if they did not exist."7
The only justification frequently given by the Indian Government
before various international monitoring committees is that it does not
want to interfere in the personal affairs of any community without being
requested by the members to do so. Here, some experts feel that
technically a serious lacunae is there as India having ratified the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), 1979, has become legally bound under the
international law to implement the convention without any reservations. In
more specific terms, while signing CEDAW, the Indian Government on 30
July 1980 had made a unilateral declaration that "with regard to Articles
5(a) and 16(1)... the Government of India declares that it shall abide by ...
these provisions in conformity with its policy of non-
interference in the personal affairs of any community without its initiative
and consent." However, thereafter, the Indian Government ratified the
Women's Convention on 9 July 1993 without any reservations and some
experts now claim that India, therefore, is obliged to implement the
entire convention with no ifs and buts.8

The Indian Constitution and the uniform civil code

Indian Constitution expressly stands for gender equality. For example.

article 44 of the Constitution envisages a uniform civil code for all
citizens and lays down that "The State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India."9 However,
even after half a century from the framing of the Constitution, the ideal of
uniform civil code is yet to be achieved. Women, who make up nearly
half of India, continue to clamour for a gender just code to enjoy. equality
and justice irrespective of the community to which they belong. The
uniform civil code is required not only to ensure (a) uniformity of laws
between communities, but also (b) uniformity of laws within
communities ensuring equality between the rights of men and women.10

7. Kirti Singh, "Obstacles to Women's Rights in India" in Rebecca J. Cook (ed).

Human Rights of Women: National and International Perspectives 375 (1994).
8. Ibid.
9. V.N Shukla, The Constitution of India 308 (2001).
10. See, F. Agnes, "Hindu Men Monogamy and Uniform Civil Code" XXX (50)
Economic and Political Weekly 32 (1995); B. Karat, "Uniformity v. Equality"
Frontline 17 November 1995.

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580 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 46 : 4

Attempts have been made from time to time for enacting a uniform
civil code after independence and the Supreme Court in various cases
has been giving directions to the government for implementing article
44 of the Constitution and to reform the personal laws specially those
relating to the minorities and to remove gender bias therein. But the
state has shown reluctance to interfere with these laws because religion
has been proving to be a "formidable barrier" to reform the personal
laws.
Initially, the idea of uniform civil code was raised in the Constituent
Assembly in 1947 and it was incorporated as one of the directive
principles of state policy by the sub-committee on fundamental rights
and clause 39 of the draft directive principles of state policy provided
that state shall endeavour to secure for the citizens a uniform civil code.
The argument put forward was that different personal laws of
communities based on religion, "kept India back from advancing to
nationhood" and it was suggested that a uniform civil code "should be
guaranteed to Indian people within a period of five to ten years"." The
Chairman of Drafting Committee of the Constitution, Dr. B.R. Ambedkar,
said that "We have in this country uniform code of laws covering almost
every aspect of human relationship. We have a uniform and complete
criminal code operating throughout the country which is contained in
the Indian Penal Code and the Criminal Procedure Code. The only
province the civil law has not been able to invade so far is marriage and
succession ... and it is the intention of those who desire to have Article
35 as part of Constitution to bring about the change."I2 He further
pointed out that it was not correct to say that Muslim law was immutable
and uniform throughout India up to 1935. The shariat law did not apply to
North West Frontier Provinces where the Hindu law of succession and
other matters were followed so much so that in 1939, the Muslim
legislature had to abrogate the application of Hindu law to Muslims of the
North West Frontier Provinces and apply shariat law to them. Similar
situation prevailed in the United Provinces, the Central Provinces and
Bombay where the Muslims to a larger extent were governed by the
Hindu law of succession. In order to bring them at par with other Muslims
who followed shariat law, the legislature enacted a law applying the
shariat law to the rest of India. In North Malabar, Marumakkathayam,
matriarchal law of succession applied equally to Hindus and Muslims.I3

11. B. Shiva Rao (ed.), The Framing of India's Constitution: Select Documents
Vol. II, The Indian Institute of Public Administration (IIPA), New Delhi, 1968.
Debates of 14, 17-20 April 1947.
12. Lok Sabha Secretariat, Constituent Assembly Debates Vol. III 551 (23 Nov
1948).
13. Ibid.

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2004] NOTES AND COMMENTS 581

Though Ambedkar was supported by Gopalaswamy Ayyangar and

others but Jawarharlal Nehru intervened in the debate. Nehru said in
1954 in Parliament, "I do not think that at the present the time is ripe for
me to try to push it (UCC) through."I4 Since the uniform civil code was a
politically sensitive issue, the founding fathers of the Constitution arrived
at a honourable compromise by placing it under article 44 as a directive
principle of state policy.

Efforts by the Indian judiciary

Even after more than five decades from the framing of the
Constitution, the ideal of uniform civil code under article 44 is yet to be
achieved. However, efforts in this direction continued as reflected in
various pronouncements of the Supreme Court from time to time.
In Mohammad Ahmed Khan v. Shah Bano Begum,15 popularly known as
the Shah Bano's case, the Supreme Court held that "It is also a matter
of regret that Article 44 of our Constitution has remained a dead letter."
Despite section 127 of Cr PC, 1973 (which provides that if a woman has
received an amount under personal law, she would not be entitled to
maintenance under section 125 of Cr PC, 1973 after divorce) Muslim
women would be entitled to maintenance if amount received by her as
"dower" under personal law is not sufficient for her sustenance. Though
this decision was highly criticized by Muslim fundamentalists, yet it was
considered a liberal interpretation of law as required by gender justice. Later
on, under pressure from Muslim fundamentalists, the central government
passed the Muslim Women's (Protection of Rights on Divorce) Act,
1986, which denied right of maintenance to Muslim women under section
125 of Cr PC. The activists rightly denounced that it "was doubtless a
retrograde step. That also showed how women's rights have a low priority
even for the secular state of India. Autonomy of a religious establishment
was thus made to prevail over women's rights."I6
In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of
India and others," Kuldip Singh, J., while delivering the judgment
directed the government to implement the directive of article 44 and to
file affidavit indicating the steps taken in the matter and held that
"Successive governments have been wholly remiss in their duty of
implementing the Constitutional mandate under Article 44. Therefore,

14. See, Virendra Kumar, "Towards a Uniform Civil Code: Judicial Vicissitudes
[from Sarla Mudgal (1995) to Lily Thomas (2000)]" 42 JILL 315 (2000).
15. (1985) 2 SCC 556.
16. Amita Dhanda & Archana Parashar, Engendering Law: Essays in Honour of
Lokita Sarkar 137 (1999)
17 AIR 1995 SC 1531.

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582 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 46 : 4

the Supreme Court requested the Government of India, through the Prime
Minister of the country to have a fresh look at Article 44 of the
Constitution of India and endeavour to secure for its citizens a uniform
civil code throughout the territory of India." He also suggested the
appointment of a committee to enact a Conversion of Religion Act.
R.M. Shahai, J., while agreeing with Kuldip Singh, J., too agreed that
"ours is a Secular Democratic Republic. Freedom of religion is the core of
our culture. But religious practices, violative of human rights and dignity
and sacerdotal suffocation of essentiality civil and material freedoms,
are not autonomy but oppression."
However, in Ahmedabad Women's Action Group(AWAG) v. Union of
India,18 a PIL was filed challenging gender discriminatory provisions in
Hindu, Muslim and Christian statutory and non-statutory law. This time
the Supreme Court became a bit reserved and held that the matter of
removal of gender discrimination in personal laws "involves issues of
State policies with which the Court will not ordinarily have any
concern,"19 The decision was criticized that the apex court had virtually
abdicated its role as a sentinel in protecting the principle of equality
regarding gender related issues of personal laws of various communities in
India. 20
The apex court pursued the same line in Lily Thomas etc. v. Union of
India and others21 and held:—
The desirability of uniform civil code can hardly be doubted. But
it can concretize only when social climate is properly built up by
elite of the society, statesmen amongst leaders who instead of
gaining personal mileage rise above and awaken the masses to
accept the change.
The court further added while it was desirable to have a uniform civil
code, the time was yet not ripe and the issue should (be) entrusted to the
Law Commission which may examine the same in consultation with the
Minorities Commission. That is why when the court drew up the final
order signed by both the learned judges it said, "the writ petitions are
allowed in terms of the answer to the questions posed in the opinion of
Kuldip Singh, J. These questions we have extracted earlier and the decision
was confined to conclusions reached thereon whereas the observations on
the desirability of enacting the Uniform Civil Code

18. AIR 1997 SC 3614.

19. Id. at 3617.
20. See, Rajeev Dhawan, "The Apex Court and Personal Law" The Hindu 14
March 1997
21. AIR 2000 SC 1650 at 1668.

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2004] NOTES AND COMMENTS 583

were incidentally made." Further, Sahai, J., observed that similarly in

Pannalal Bansilal Pitti v. State of A. P.22 the court pointed out:-23
The first question is whether it is necessary that the legislature
should make law uniformly applicable to all religious or
charitable or public institutions and endowments established or
maintained by people professing all religions. In a pluralist
society like India in which people have faith in their respective
religions, beliefs or tenets propounded by different religions or
their off-shoots, the founding fathers, while making the
Constitution, were confronted with problems to unify and
integrate people of India professing different religious faiths,
born in different castes, sex or sub-sections in the society
speaking different languages and dialects in different regions and
provided a secular Constitution to integrate all sections of the
society as a united Bharat. The directive principles of the
Constitution themselves visualize diversity and attempted to
foster uniformity among people of different faiths. A uniform
law, though is highly desirable, enactment thereof in one go
perhaps may be counter-productive to unity and integrity of the
nation. In a democracy governed by rule of law, gradual
progressive change and order should be brought about. Making law
or amendment to a law is a slow process and the legislature
attempts to remedy where the need is felt most acute. It would,
therefore, be inexpedient and incorrect to think that all laws
have to be made uniformly applicable to all people in one go. The
mischief or defect which is most acute can be remedied by process
of law at stages.
The above judgments clearly reflect that after Shah Bano case, the
apex court took the opposite view and wanted to maintain a status quo and
did not want to take a lead to bring about any change in the situation. Even
in 2001, the Supreme Court in Danial Latifi and another v. Union of
India,24 upheld the validity of Sections 3 and 4 of the Muslim Women
(Protection of Rights on Divorce) Act, 1986, as not being violative of
articles 14, 15 and 21 of the Constitution of India. Under section 3 of the
Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim
husband is liable to make reasonable and fair provision for future of
divorced wife which includes maintenance also, so she is not entitled to
claim maintenance under section 125 of Cr PC. Under section
4 of the Act, divorced Muslim woman unable to maintain herself after

22. AIR 1996 SC 1023 (para 12).

23. Supra note 21.
24. (2001) 7 SCC 740.

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584 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 46 : 4

iddat period can proceed against her relatives or Wakf Board for
maintenance. Rajendra Babu, J., on behalf of a five judges bench
consisting of Patnaik, Mohapatra, Doraiswamy, Patil, JJ., and himself,
observed that :-25
In interpreting the provisions where matrimonial relationship is
involved we have to consider the social conditions prevalent in
our society. In our society, whether they belong to the majority or
the minority group, what is apparent is that there exists a great
disparity in the matter of economic resourcefulness between man
and a woman. Our society is male dominated both
economically and socially and women are assigned invariably, a
dependent role, irrespective of the class of society to which she
belongs. A woman on her marriage very often, though highly
educated gives up her all other avocations and entirely devotes
herself to the welfare of the family, in particular she shares with
her husband, her emotions, sentiments, mind and body, and her
investment in the marriage is her entire life... When a
relationship of this nature breaks up, in what manner we could
compensate her so far as emotional fracture or loss of investment is
concerned, there can be no answer. It is a small solace to say that
such a woman should be compCnsated in terms of money towards
her livelihood and such a relief which partakes basic human
rights to secure gender and social justice is universally recognized
by persons belonging to all religions.
Nevertheless, some leading experts did not toe this line. For example,
Professor S. P. Sathe,26 strongly criticized this judgement that on the one
hand the learned judge had observed that solutions to such societal
problems of universal magnitude pertaining to horizons of basic human
rights, Culture, dignity and decency of life and dictates of necessity in the
pursuit of social justice should be invariably left to be decided on
considerations other than religion or religious faith or beliefs or national,
sectarian, racial or communal constraint. But, at the same time, Professor
Sathe rightly maintains that gender justice is a universal concern and
particularly after the Convention on the Elimination of All forms of
Discrimination Against Women (CEDAW) which has been passed by the
United Nations and which has been signed by India, there is an
additional responsibility on the Indian Supreme Court not to construe
statutes so as to cause such gender discrimination. Further, article 21 of the
Constitution has been held to include the right to live with dignity

25. Id. at 757.

26. S.P. Sathe, "From Shah Bano to Daniel Latifi" The Lawyers Collective Vol.
17 at 9 (Jan 2002).

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2004] NOTES AND COMMENTS 585

and a Muslim woman suffering from destitution or having to go from

pillar to post in search of her potential heirs to provide for her
maintenance would certainly not be living with dignity. The Supreme
Court itself has earlier held in Vishakha v. State of Rajasthan27 that the
provisions of the Constitution have *o be interpreted as informed by
CEDAW, thereby incorporating that declaration within articles 14, 21 and
19(1)(g) of the Constitution. Therefore, if the same approach is to be
sustained, the Muslim Women's Act of 1986 had to be either
interpreted so as to provide full protection against vagrancy by imposing
responsibility on the husband who was directly connected with the
matrimonial life or has to be struck down as being violative of articles 14,
15 (2) and 21 of the Constitution. However, the court chose to uphold the
law by interpreting it liberally so as not to deprive a Muslim woman of
what had been given by the earlier law.
It was further pointed out that the apex court, unlike the Shah Bano
bench, did not speak about a uniform civil code. In fact, strangely, by
upholding different and perhaps more beneficial legislation for Muslim
women, it upheld different laws for different communities, thereby
belying the claim of a uniform civil code. Different laws for different
communities do not jeopardize the right to equality since they could be
based on reasonable classification. Professor Sathe further rightly
suggested that the words "Uniform Civil Code" in article 44 need to be
interpreted to sustain the pluralistic character of the Indian community. Its
emphasis should be on gender justice rather than on uniformity.
Moreover, the law of marriage and divorce of the Christians has recently
been modernized to bring greater equality between men and women and
between Christian women and other women. The Supreme Court has not
yet interpreted article 44. On all previous occasions the Supreme Court
enjoined upon the Parliament to enact a uniform civil code without
specifying what a uniform civil code would mean. However, the word
"uniform" should not mean the same law for all but it should mean
similar laws for all and similarity should be regarding equality and
gender justice."
The situation regarding the personal law for Christians in India was
different. In their case, the courts seemed to be bolder and took a -
progressive stand in terms of gender equality. For example, in 1989, in
Swapana Ghosh v. Sadananda Ghosh,29 the Calcutta High Court
expressed the view that sections 10 and 17 of Indian Divorce Act, 1869,
should be declared unconstitutional but nothing happened till 1995. In 1995,
the Kerala High Court in Ammini E.J. v. Union of India,30 and

27. (1997) 6 SCC 241.

28. Supra note 26 at 10.
29. AIR 1989 Cal 1.

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586 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 46 : 4

Bombay High Court in Pragati Verghese v. Cyril George Verghese,3I

struck down section 10 of the Indian Divorce Act, 1869 as being violative of
gender equality.
Significantly, the apex court appears to have taken a turn again
regarding the matter of a gender just code in India. On 23 July 2003, the
Supreme Court in a PIL by a Christian priest, John Vallamattom and other
citizens of Christian community, challenging the validity of the section
118 of the Indian Succession Act, 1925, while striking down the said section
as being violative of article 14 of the Constitution, and also concerned over
the contradictions in marriage laws of various religions, in a historic
judgement, emphasized the need for a legislation by Parliament on a
common civil code. Stressing that there was no "necessary connection"
between religious and personal laws in a civilized society, a three judge
bench, headed by V.N. Khare, CJI, held that it was a matter of regret
that article 44 of the Constitution, which provided for the state to
"endeavour" to secure a uniform civil code for its citizens throughout
India, had not been effected. The court further observed that "Parliament
is still to step in for framing a common civil code in the country. A
common civil code will help the cause of the national integration by
removing the contradiction based on ideologies".32

Conclusion and Suggestions

Significantly, in the matter of a uniform civil code, India's

binding obligations under international law have also started attracting
attention of legal and other experts. Satyabrata Rai Chowdhuri, rightly
observed in 2003:-33
[Since] differential treatment for any religious group is violative of
the UN Covenant on Civil and Political Rights and the
Declaration on the Rights to Development adopted by the World
Conference on Human Rights, it is hoped that Parliament will
frame a common civil code without further delay, divesting
religion from social relations and personal law.
One should not forget that nationhood is symbolized by one
Constitution, a single citizenship, one flag and a common law applicable to
all citizens and India's obligations under international law and
requirements of various international instruments relating to the human

30. AIR 1995 Ker 252.

31. AIR 1997 Bonn 349.
32. John Vallamattom v. Union of India, 2003(5) SCALE 384.
33. Satyabrata Rai Chowdhuri, "A Common Civil Code: It is a Constitutional
Obligation" The Tribune 30 July 2003 at 10.

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2004] NOTES AND COMMENTS 587

rights of women such as the Universal Declaration of Human Rights,

1948 and the Declaration on the Elimination of Discrimination Against
Women, 1967, also demand that even if one rules out article 44 the
Union of India cannot evade its international obligation to make laws to
remove all discrimination against women. For that, just as twenty-seven
years ago, the Equal Remuneration Act, 1976 was enacted for the benefit of
all working women, "The next logical step is to make a law to secure equal
rights to women. An Equal Rights Act would largely achieve the objective
of common civil code. In the alternative, parallel reform of each personal
law to give effect to the human rights declared by the United Nations
would help the emergence of a common pattern of personal laws,
paving the way for a uniform code," and a beginning could be made in
that direction but it seems that the "Political will is lacking".34
Therefore, to summarize, it can be said that in India, it is mainly the
personal laws that most intimately continue to affect the lives of millions
of women of all communities. But despite various efforts under
international instruments and reform of national -laws for ensuring gender
equality, women continue to be treated unequally and discriminated
specifically in the areas of marriage, divorce, adoption, custody and the
right to own and inherit property. In such a situation, a gender just code is
the need of the hour. Thus, a uniform civil code is vital for the
protection of the oppressed, promotion of national unity and solidarity, for
safeguarding the human rights of women in India irrespective of the
religious community they belong and, moreover, to bring the national
laws in conformity with the legally binding provisions of international
law in the form of various international human rights instruments already
ratified by India.

Jyoti Rattan*

34. P.P. Rao "Uniform Civil Code is a Necessity: An Optional Common Law
can be Enacted" The Tribune 6 Aug. 2003 at 10.
* LL.M, Ph.D. Part-time Lecturer, Department of Laws, Panjab University,
Chandigarh.

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