UNIFORM CIVIL CODE

SUBMITTED BY

-----SAHIL SINGH-----

IN THE MONTH OF
JULY, 2023

Under the guidance of

Mr. Abhishek Sharma
Deputy Legal Advisor
ONGC

1
 TABLE OF CONTENTS

S. NO. Contents Page

Numbers
1 CHAPTER I 3
Abstract 3
Introduction 4
Research Questions 6
Research Methodology 6
Motivation 6
Literature Review 7
2 CHAPTER II 8
Historical background 8
Pluralism 10
3 CHAPTER III 11
Conduciveness of democracy to pluralism 11
Plausibility of UCC in a pluralistic setup 12
Implementation of UCC in India 12
4 CHAPTER IV 16
Uniformity and Pluralism around the world 16
5 CHAPTER V 18
Conclusion 18
References 19

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 CHAPTER I

ABSTARCT

The debate surrounding the Uniform Civil Code stems from the existence of the 44th Article
of the Indian Constitution1 which signifies that the framers of the Constitution expected a
time in the future when such a code would be found to be the need of the hour. Goa
successfully implemented the Portuguese Civil Code,1867 2 and decided not to forsake it once
they gained independence from this colonial power in 1961. However, the real test of the
Uniform Civil Code lies not in its adoption by a state in which a major section of the
demography is homogeneous, but in its implementation in a state as diverse as India. India is
generally held in high regard as a melting pot of cultures, religions, and languages. This
heterogeneity has led to India focusing largely on protecting its minorities in this unity in-
diversity setup. However, it is worthwhile to note that most homogeneous countries with
clear religious and cultural majorities have also failed in implementing legislation's akin to
the Uniform Civil Code. While the Uniform Civil Code may not have been feasible in the
past decades, its existence, hypothetically, may have avoided numerous communal and
religious conflicts that have shaped the socio-political and religious discourse of India today.
The paper explores the question of whether such a policy will prove to be inclusive of all
religious practices without further dividing the country on communal lines by diluting the
secular spirit of the India spirit.

1
Article 44, Indian Constitution Act,1950
2
Portuguese Civil Code,1867

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 INTRODUCTION

“Secularism and pluralism are two of the defining ethos of the Western societies. The former
decouples religion from governmental institutions whilst the latter seeks to protect the rights
of all citizens to freely practice their creed” 3 (Gad Saad). The Uniform Civil Code, enshrined
in the 44th Article of the Indian Constitution, is an aspiration of the Indian state to make its
shift from a set-up defined as secular to one that makes India a pluralistic society. While
secularism is the mere existence and the acknowledgment of such diversity, pluralism is an
energetic engagement with such diversity. This paradox is most intriguing- for whilst India,
in its constitution’s preamble, is described as a state that is secular, the next few lines of the
preamble guarantee each citizen liberty of faith and worship. Multiple debates over the nature
of the would-be Indian state occurred at the offset of the framing of the Indian Constitution
where the framers set forth a debate on the wide range of social realities present in India
especially with reference to the Code’s violation or lack thereof with regard to Article 25 of
the Indian Constitution which speaks of the right to practice, profess and propagate the
religion of one’s choice.4 The imposition of a Uniform Civil Code is but a positive obligation
on the state that manifests in the form of a Directive Principle of State Policy- non-justiciable
and eventually enforceable at the option of the state majority and only upon obtaining the
assent of the concerned communities.

The Directive Principles of State Policy are a set of Articles in the Indian Constitutions that
act as guidelines for future legislators that they may follow to fulfil the aspirations of the
constitution makers. These were intended to act in keeping with the rights and freedoms that
the bringers of independence and framers of the constitution intended to gift to the Indian
people but were impractical to implement at a time when creating and maintaining unity, law
and order in the wake of recent independence, partition and control, or lack thereof gained
onus over ensuring the implementation of such laws. laws. On the other hand, it is valid to
question the present state of affairs in the country and its conduciveness to the bringing about
of a Uniform Civil Code that will forever change the fate of civil and personal laws in the
nation.

3
Gad Saad, Should Secular Societies Accommodate Religious Beliefs? (2017),
https://www.huffpost.com/entry/should-secular-societies-_b_6508160
4
Article25, Indian Constitution Act,1950.

4
Implementing Article 44 will, no doubt, prove to be a herculean task. The very logistics of it
are tough to imagine, especially in the age of widespread internet usage, fake news and
yellow journalism. Further, the Indian state and its polity is no stranger to divide on
communal lines and this divide is evident now, perhaps more than ever before. The advent of
high-speed internet at each fingertip has propelled conversation relevant to the state and its
polity among all citizens and rising awareness is creating divide for and against a Uniform
Civil Code as well. However, it is understood that whilst the implementation of a Uniform
Civil Code has been an aspiration reiterated by the ruling party in multiple manifestos over a
long reign of election cycles, that now is not the best time for bringing it about. However, it
may be unwise to wait too long in fear of great divide, lest the wait prove fatal to the Indian
people and their respective rights to their practice of religion.

The enactment of a Uniform Civil Code would, prospectively, be an enthralling engagement

in its fulfilment of the constitution maker’s dream of assimilating Indian personal law into a
unified code that not only protects and preserves civil law but also engages enthusiastically
with Indian diversity. Yet, a scenario where the right wing is rising across the globe and
feelings of nationalism and cultural and religious differences causing strife are on the horizon
may prove to create a preferential tilt towards a single religion and its personal laws in the
drafting of the code. The same personal laws have been applicable to Hindus, Jains, Sikhs,
Zoroastrians and Buddhists in India since independence on the pretext that these religions are
“quite similar” to Hinduism leading to compromise with personal laws unique to these
religions. A Uniform Civil Code may lead to further dilution of the practices of these
communities and may endanger the practice of these religions in the country. Furthermore,
the fact that Muslims are given the liberty to practice their own personal laws may be seen as
unjust enrichment to them as opposed to these other religions. A truly pluralistic set up will
be able to guarantee equality not just between those who follow different religions, but also
amongst the different religions themselves.

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 RESEACRH QUESTIONS

 Is democracy conducive to pluralism?

 Is UCC plausible in a pluralistic setup?
 When should UCC be implemented in India?

RESEARCH METHODOLOGY

The research methodology being followed in this paper is doctrinal in nature. Through this
approach the focus is majorly on case-laws, statutes and other legal resources.

MOTIVATION

Over the years, multiple efforts have been made to codify various personal laws, but little has
been done to form a Uniform Civil Code that fulfils the needs of every religion practiced in
the Indian subcontinent. Studying and understanding that concept is something which
intrigued me and hence I chose the same for my research paper.

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 LITERATURE REVIEW

Varuna Chakraborty5 in her paper highlights the importance of separating religion from law
and emphasises that the enactment of Uniform Civil Code will heighten the secularism and
the differences between different religious groups will disappear and India will emerge as a
much more cohesive and integrated nation.

Krishnayan Sen6 explains how there is actually no need for a debate regarding the desirability
of the Uniform Civil Code as it is already present in the Directive Principles of the State
Policy and proposed solutions to the more important question of how to give effect the
constitutional mandate.

The preliminary research reveals that there is no existing literature work analysing Uniform
Civil Code in reference with pluralism. The paper starts afresh and addresses the gaps in the
existing research.

CHAPTER II
5
Varuna Chakraborty, Challenging aspects Of Uniform Civil Code In India, 9 International Journal of Scientific
& Engineering Research (2018).
6
Krishnayan Sen, Uniform Civil Code, 39 Economic and Political Weekly (2004).

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 HISTORICAL BACKGROUND

The Indus Valley Civilisation, heart of the ancient world was one of the most advanced of its
time and of times to come. Little evidence has been found of religion causing strife among
the primitive Indus Valley people who worshipped divine entities like the Mother Goddess.
The Indus Valley Civilisation is considered the birthplace of Hinduism which was practiced
widely in India until the advent of the Delhi Sultanate and the Mughals who brought the Qazi
administration of Muslim personal laws to India.

Warren Hastings’ Judicial Plan introduced Moffusil Courts in the areas of Bengal, Bihar,
Odisha and Calcutta in 1772. These courts made no distinction in the administration of justice
between Hindus and Muslims. This was not the case under the Mughal dynasty. The Judicial
Plan of 1772, however, still governed people based on their respective personal laws. The
Supreme Court in Calcutta was established in 1774 and delivered justice based on English
law, Hindu law and Muslim law- the first instance where the laws, sentiments and cultures of
other religions were ignored. The first law commission under Lord McCauley came to the
conclusion that there was a lack of Lex Loci or “law of the land” for the non-Hindu and non-
Muslim citizens in 1835. This has been substantiated by the Supreme Court in many
instances such as Mohd. Ahmed Khan v. Shah Bano Begum and Sarla Mugdal and others v.
UoI.

Goa and Daman and Diu chose to continue following the Portuguese Civil Code, 1867 after
gaining independence from the Portuguese in 1962. Pondicherry follows the French Civil
Code, 1802.Over the years, multiple efforts have been made to codify various personal laws
but little has been done to form a Uniform Civil Code that fulfils the needs of every religion
practiced in the Indian subcontinent. It remains to be seen whether a Uniform Civil Code
capable of catering to a country that is home to such immense diversity and differentiation
will ever be brought into practice.

Hindus were governed by the Mitakshara and Dayabhaga schools of legal thought before
independence and different sub-schools evolved under the same whilst the Shia and Sunni
sects among the Muslims found different applications of the laws provided by the Holy
Quran and were both further divided into different schools. Where Mofussil Courts honoured

8
the personal laws of each Indian minority in the colonial period, practices unique to them and
not widely practiced were shunned in the wake of their assimilation with Hindu law. The
Uniform Civil Code has, in that capacity, already been provoked and this is why the debate
surrounding the same is, today, centred mostly on Hindu and Muslim personal laws. The
bringing forth of such a code, though, has been rejected by influential members of both
religious communities. Repeated attempts have been made to bring about something akin to a
Uniform Civil Code in the country. A private member bill in the Rajya Sabha regarding the
same on the grounds that the code would protect the personal rights of all citizens without
considering their religion was squashed as recently as in February 2020

9
 PLURALISM

Based majorly on dialogue and constant exchange of ideas, pluralism is the whole-hearted
acceptance of diversity and an active and energetic attempt to both further and safeguard it.
Pluralism, in the post-modern era, goes beyond the tolerance of another group’s faith or
behaviour and encompasses an array of self-enlightenment processes to educate oneself about
these behaviours in order to grow not just tolerant, but wholeheartedly accepting of them.
Pluralism refers to the active seeking of understanding across lines of difference. True
pluralism is only found in theory, for no nation has been able to cross over completely from
being merely secular to pluralistic. A Uniform Civil Code will be required to be near-
pluralistic in nature to function without causing any tussle between the wide array of socio-
cultural and religious norms it will alter and impose. However, pluralism itself, even as the
utmost need of the hour, seems to be unattainable. This is especially the case in a dynamic
like India where multiple cultural and psychological sentiments are entwined with religion
forming a set of mass belief systems waiting for a Uniform Civil Code to toy with their
intricacies. The preamble also states that every citizen must be given liberty of thought belief
and worship which encourages citizens to transcend boundaries and be open to other religions
and coexist in the same demography. Pluralism thrives on this principle of coexistence and
facilitates the same in an egalitarian society

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 CHAPTER III

Is democracy conducive to pluralism?

Democracy is embodied by characteristics like secularism which is considered to be

synonymous with pluralism in this day and age, but, as the legendary thinker Plato asserts in
his writings, democracy has a tendency to be morphed from aristocracy and to morph into
ochlocracy. Democracy is considered the rule of the people; and what is more disgraceful to
the rule of the people than a blatant dismissal of the socio-cultural and religious rights of any
minority? Pluralism is not just tolerating minorities but understanding and accepting them
and their practices wholeheartedly which leaves little scope for them dissenting. However,
this tendency of democracy to turn into “mobocracy” at the saturation point of the people’s
displeasure with their government’s intolerant policies stands proof to the fact that pluralism
may never be a feature of democratic governments. In fact, most such governments often
provide for a travesty of secular practices which push the citizen’s craving of pluralistic
society out of their wants and needs.

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 Is UCC plausible in a pluralistic setup?

A pluralistic society would be a perfect host to the Uniform Civil Code since mutual respect
among religions and cultures is expected to be a prominent feature of pluralism. As such, the
most sensitive part of the debate surrounding the Code pertains to how it will be drafted and
whether the personal laws of a single religion will begiven precedence over the rest during
the drafting process. India, being a secular Hindu population-majority country with a
Hindutva agenda leading party governing at the centre cannot expect to draft such a Code
without a slight preference being shown to Hindu personal law as opposed to the rest even
though the intention is to have a sitting committee to decide the fate of every aspect of
personal and family law. It is hoped, for example, that the Hindu Marriage Act, 1955, the
Muslim Personal law (Shariat) Application Act, 1937 and Sharia law, the Indian Christian
Marriage Act,1872, the Parsi Marriage and Divorce act, 1936 and the Special Marriage Act,
1954 will be assessed and the best and most suitable characteristics of each that may be seen
as fit to be applicable to each marriageable individual in the country whilst taking into
account the present environment will be compiled into a single uniform marriage act in a
society with a pluralistic mind-set. On the other hand, one with a predefined Hindu, Muslim
or ultra-secular mind-set would obviously display preference with regard to the political and
communal atmosphere. It can be said that whilst a secular society aims to assimilate different
religions, a pluralistic society facilitates their integration. Here, the Special MarriageAct,1954
is a clear attempt to allow some amount of assimilation of communities from different
religions in marriage, but hardly pushes for complete integration. Section 19 of the act, under
the heading ‘effect of marriage on member of undivided family’ states that marriage under
this act within the Hindu, Buddhist, Sikh or Jaina faiths shall lead to severance from the
family.

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 When should UCC be implemented in India?

Eminent political personality and Karnataka Minister C.T. Ravi recently pushed for the
implementation of a Uniform Civil Code in the wake of the Citizenship Amendment Act,
2019 protests that have been setting the country alight over the past few months. A pluralistic
setup would have, perhaps, never birthed an Act which discriminates giving citizenship to
individuals based on religion. The present case of the Citizenship Amendment Act stands
testament to the fact that India is not ready for a Uniform Civil Code to day. The re-election
of the Bhartiya Janata Party to the Centre in the 2019 General Elections is evidence that a
majority of Indians are developing views that align with the party’s right-wing agenda. As
was aforementioned, the party’s manifesto has repeatedly featured its intention to implement
a Uniform Civil Code. Yet, leaders of the party have been recurrently questioned for their
involvement in the 2002 Godhra communal riots and their display of lack of inclination to
stop the same. Furthermore, growing cases of mob lynching and cow vigilantism and the
overpoweringly communal state of affairs in the country prevent one from trusting that India
is fit to receive the benefits of a Uniform Civil Code at this time.

These facts beg the question- did India miss the opportunity to implement a Uniform Civil
Code in the past?

The 42nd amendment to the Indian Constitution, often referred to as the mini-constitution and
almost entirely reversed by the 44th amendment to the Indian Constitution sought to place the
non-justiciable Directive Principles of State Policy above the justiciable and highly regarded
fundamental rights. The period between the two amendments i.e., 1986 to 1988 can be seen
as a fertile time to have laid the seeds of a Uniform Civil Code, but India had larger concerns
during her stint with national emergency and lost her opportunity to an easy bringing about of
the Code. However, had it been brought about in this period, it would have been forced to
cushion the after-waves of many regressive measures taken by the Gandhi government
including the communal shades of the population control drive.

The relevance and need of the Code has been considered every time a communal riot has
occurred in the country. It is evident that one cannot view the cause and effect of the Code in
a time vacuum for political ideologies that take more than decades to form and furthermore
take time to be absorbed into society. The Uniform Civil Code is much more than a mere act

13
waiting its day of legislation. It puts entire communities and religions at stake and is an open
invitation for country-wide riots.

While Hindus, Muslims, Sikhs, Christians, Parsis, Jains, Buddhists and even Jews are
considered major stakeholders and it is assumed that they will be consulted for the drafting of
the Code, it is intriguing to note that “the world’s newest major religion is no religion.”
Atheism and agnosticism are growing steadily as popular beliefs; in fact, two out of the six
schools of Hinduism are known to be atheistic in nature. The Code may fail to consider this
rising minority of those who almost or completely denounce religion. Further, tribal religion
that looks to nature or the metaphysical as the supreme force may have customs and rituals
that are completely different from those followed in the mainstream. Where the assimilation
of various tribal communities in India is not adequate and entire tribal belts are left to their
own local systems of their own tribal governments, the complete dismissal of their culture
and practices is highly likely in the course of drafting and implementing a Uniform Civil
Code.

Here, it is important to reiterate that pluralism in all senses- religious, cultural and pertaining
in any way to caste, class and ethnicity is desirable to create a society that will welcome and
preserve the Code. While post-independence Indian history failed to present a perfect
environment for the Code to be brought about and the present-day socio-political
environment in the country is unwelcoming to the same, it may be unwise for India to wait
longer than a century to implement such a measure, lest the divide in personal laws grows
vicious. For instance, a large chunk of the argument in favour of the imposition of a two-child
policy of population control in India is based on political fear of the growing Muslim
population of the country with eminent leaders declaring that only one community (the
Muslims) is responsible for the population growth in the country. Such divide is rooted in the
separation of personal laws for Muslims and other religious communities and can only be
silenced by being breached.

India may, in its most outlandish case in the absence of a Uniform Civil Code in the distant
future, face an extreme case of communal violence stemming from an ISIS-like ideological
revolution. Today, one can trace ISIS’ origin back to the prison works of the Islamic
Brotherhood Egyptian Scholar Sayyid Qutb. ‘Milestones’, one of his most famous works
translated to English, paints a picture of radical Islam and the dynamic between Islam and the

14
west that had barely been shaped at the time of writing, but has proved deadly to the Middle
East today.

Sayyid Qutb and his contemporary Islamic scholars also produced a series of skewed
perceptions of the Quran and laid down the principle understanding of what the world, today,
calls ‘Jihad’. Such extreme views that advocate finishing the faith of each follower of every
religion but the one you profess is the anti-thesis of pluralism that India risks breeding upon
waiting far too long to enact Article44.

Arguably, though, flashes of the assimilation of personal laws that the Uniform Civil Code
seeks to introduce in India have been seen over the past few decades, especially with
reference to the legendary Mohd. Ahmed Khan v. Shah Bano Begum and Shayara Bano vs
Union of India and others (Triple Talaq) cases.

Furthermore, Goa has a uniform civil code- like civil guideline which it inherited from its
erstwhile Portuguese overlords. It is predominantly Catholic in nature and is an
amalgamation of mercantile laws, feudal laws, family laws etc. However, this Portuguese
Civil Code is not completely inclusive of all the sub-sects of Christianity and has no
reference to Hindus or other religious minorities. An amendment made to the same in 1977
failed to completely rectify this fallacy of the Civil Code followed in Goa. In fact, Catholics
marrying under the cannon law were excluded from the divorce provisions of the civil law
according to a 1946 agreement between the Catholic Church and the Portuguese state which
provided unfair advantage to those part-taking in Church marriages in the state.

Precedent in the Common Law System followed by India in the form of Article141 of the
Indian Constitution is the concept of the word of the Supreme Court being binding on the
entire country unless specifically barring any part of the State and it is hence debated whether
the Uniform Civil Code-like scenario in Goa is in violation to this 141th Article of the Indian
Constitution.

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 CHAPTER IV

UNIFORMITY AND PLURALISM AROUND THE WORLD

The dichotomy of the pluralistic and non-pluralistic identities of Singapore and Malaysia are
worth noting in reference to the creation of an environment that may host a uniform civil law.
Pre-colonial Singapore was a haven of tolerance but colonialism and British imperialism
coupled with white supremacy displayed by the Europeans led to growing insecurities among
local ethnic groups. Post-colonial Singapore sought to work actively towards nation building
in terms of development of community, ethnicity and group rights. However, a tussle
between religious bias and struggle for complete eradication of discrimination led to the gross
neglect of individual rights and interests in violation of the most fundamental tenets of
democracy. Ethnic groups’ interests were eventually brought into the political realm in
Singapore and further clubbed with religion, diluting customs and traditions in the political
arena. On the other hand, Malaysia, a highly homogenous country, made a valiant attempt to
assimilate adoption laws pertaining to all groups into one document but, alas, a clause in the
Malaysian Adoption Act exempts its majority from the law.

Lastly, Canada, since its independence from colonial rules, has been open to integration of
different cultures. Canada was a British Colony but Quebec was one looked over by the
French. Upon gaining independence, the divide between Catholic and Protestant influence
and the following of the Common Law System as opposed to the Civil Law System in the
two territories that seemed to be demarcated within the same country gave rise to the
Constitutional right to cultures, religion and language which is enshrined in the 2nd section of
the Canadian Charter of Freedoms and Rights. However, the implementation of these laws
varies in Canada and Quebec. It is important to note here that Quebec follows the Civil Law
System predominantly in civil private matters whilst criminal law is uniform over the
country.

These countries present themselves as fitting case studies to two major observations relating
to the subject.

16
1.No country has achieved complete pluralism.

2.Countries, both homogenous and heterogeneous in religious composition, find it extremely

difficult to implement uniform civil and personal laws to the entire population.

17
 CHAPTER V

CONCLUSION

The most basic assumption regarding the Uniform Civil Code is that all parties with rights,
freedoms, customs, and traditions at stake will be consulted during the process of its drafting.
Further, the Indian state aspires for each custom and tradition to be well-preserved and well
respected if it stands the test of relevance with reference to the post-modern era. However,
this may be in violation of prominent jurist Friedrich Carl von Savigny’s historical
perspective of law which places customs and traditions above all other sources of law.

It is impossible to point at a particular time in the future when it will be befitting to

implement Article 44 to the Indian State. However, harbouring pluralistic intentions and
secular attitudes in consonance with our pursuit to implement the Uniform Civil Code while
simultaneously protecting individual rights seems to be a positive step towards the welfare of
the state.

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 REFERENCES

1. Article 44, Indian Constitution Act,1950

2. Portuguese Civil Code,1867

3. Adoption Act,1952 (Section 31)

4. Khidhir S, 'Islamophobia In Muslim-Majority Malaysia' (TheASEANPost,2019)

5. Article 3, Constitution of Malaysia

6. Gad Saad, ‘Should Secular Societies Accommodate Religious

Beliefs?'<https://www.huffpost.com/entry/shouldsecular-societies-_b_6508160>.

7. Dissent Not Anti-National Excerpts/ Justice PD Desai Memorial Lecture2020' (India

Legal,2020)

8. Article 25, Indian Constitution Act,1950.

9. Manooja, D.C.’UNIFORM CIVIL CODE: A SUGGESTION.’ (Journal of the Indian Law

Institute, vol.42, no.2/4,2000, pp.448-457)

10. AIR 1985 SC 945

11. The Hindu Business Line, 'Opposition Blocks One More Private Member’s Bill On
Uniform Civil Code' (2020)

12. The Hindu Marriage Act, 19551937

13.The Indian Christian Marriage Act,1872

14. The Parsi Marriage and Divorce Act, 1936

The Special MarriageAct,1954

15. Section 19, Special Marriage Act,1954

16. Citizenship Amendment Act,2019

19
17. The New Indian Express, 'As Delhi Burns, CT Ravi Pushes For Uniform Civil Code'
(2020)

18.

18.AshwaqMasoodi,'WhenSterlizationWasn’TAMatterOfChoice'(Livemint,2015)
<https://www.livemint.com/Politics/VPJHHyhQm3t8Rd1YcOfeRO/When-sterlization-
wasnt-amatterof-choice.html>.

19. The World's Newest Major Religion: No Religion'(Nationalgeographic.com,2020)

20.KunalPurohit,'TheIslamophobicRootsOfPopulationControlEffortsInIndia'
(Aljazeera.com,2019)

21. ADIEL SUAREZ-MURIAS, ‘” JIHAD IS THE WAY AND DEATH FOR THE
SAKEOF ALLAH IS OUR HIGHEST ASPIRATION”: A NARRATIVE ANALYSIS OF
SAYYID QUTB’S MILESTONES' (Graduate, WAKE FOREST UNIVERSITY
GRADUATE SCHOOL OF ARTS AND SCIENCES)

22. AIR 1985 SC 945

23. (2017) 9 SCC 1

24. Portuguese Civil Code,1867

25. Partha S. Ghosh., The Politics Of Personal Law In South Asia: Identity, Nationalism And
The Uniform Civil Code (Routledge2018)

26. Section 31, Adoption Act,1952

20