DESIDERATION FOR A UNIFORM CIVIL CODE

Ashmita Das*
I. INTRODUCTION.
In layman's terms, a uniform civil code implies "one country, one law." The phrase "civil code" refers to a
collection of laws governing personal relationships. Contracts, property, marriage, and other laws, for
example. India has always maintained a Uniform Criminal Code, which is recognized across the country
with some essential exceptions, even before the constitution was enacted.
“The State shall endeavor to secure for the citizens as a uniform civil code throughout the territory of
India,” 1says Article 44 of the Indian Constitution. A Uniform Civil Code is used in many modern
democracies across the world. The adoption of the Uniform Civil Code in India was intended to offset the
controversial Indian Personal Laws.
It was debated for roughly two days in the constituent assembly before being included in the constitution
under article 44, the directive principle of state policy. However, due to the country's socio-economic
situation following partition and independence, it was unable to be executed, and it was left to the next
parliament to do so whenever the majority wants.
The application of article 25 is crucial here; the major point of argument against the introduction of a
unified civil code is that it infringes on article 25, which guarantees religious freedom.
The country's judiciary has been reminded and recommended several times that a Uniform Civil Code is
needed to solve different concerns relating to personal laws. Between 1985 and 2015, seven court
decisions underlined the necessity for a uniform civil code throughout the country. Although the power
and solution are not with the judiciary, but with the legislature, as the Supreme Court has stated on
several occasions. As a result, the paper examines the necessity for a Uniform Civil Code, as well as the
misunderstanding of the concepts of a Uniform and Common Civil Code and a path ahead. The study
also attempts to clarify and refute the common belief that a rule like this would violate Article 25.

II. ARTICLE 25 AND JUDICIAL PRONOUNCEMENT.

The Supreme Court has often emphasized the necessity for India to have a unified civil code. They have
long claimed that the legislature has failed to pass legislation that addresses all the concerns surrounding
personal laws. Cases such as Sarala Mudgal2, Shah Bano3, and others have made the Supreme Court's
position extremely apparent.
However, under terms of the Uniform Civil Code, there is an essential decision that must be considered.
In the case of Nikhil Soni v. Union of India,4 the court said unequivocally that while a practice may be
religious, it does not automatically constitute a vital component of the religion. In terms of article 25
implementation, there are two categories: necessary religious practices and secular or non-essential
practices.
Personal rules are not covered by the five fundamental principles of Islam, which is very essential to
grasp when it comes to the heart of religion. During the constituent assembly discussions, Shri KM
Munshi stated that several Muslim sects, including the Khojas and Kutchimenons, were unsatisfied with
the sharia act of 1937 since they were converted. As a result, Hindu rituals were adopted by certain
members of the Muslim minority when the central legislature enacted it and they were forced to obey it; it
was at this time that minorities' rights were under despotism.

1
*Second year law student, University of Petroleum and Energy Studies Dehradun. [Authored on 12 th August 2021]
Article 44 in the Constitution of India 1949, (Available at: https://indiankanoon.org/doc/1406604/ )
2
MANU/SC/0290/1995
3
MANU/SC/0194/1985
4
Nikhil Soni v. Union of India, MANU/RJ/7414/2006
If a community believes that inheritance should be a component of religion, it will be impossible to provide
women with the fundamental right to equality. He was attempting to persuade the assembly that even if
certain rules in the Hindu Code bill violate the core texts, they were nonetheless enacted to offer equality
to Hindus. Because the law is such a dynamic notion, it should be updated to reflect changing societal
demands.

III. THE UCC IS DEBATED IN THE CONSTITUENT ASSEMBLY.

Several Muslim leaders spoke out against the motion at the time it was enacted, claiming that it violated
the fundamental freedom of religion. Several figures, like Mohammad Ismail Sahib, Naziruddin Ahmed,
and others, have argued that personal laws should not be changed considering this text.5
Shri AlladiKrishnaswamiAyyar addressed these contentions by stating that Uniform Civil Code runs into
every department of civil relations to the law of contracts, to the law of property, and various similar areas.
Dr. BR Ambedkar even mentioned, “We have a uniform and complete Criminal Code operating
throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. This
country has also practically a Civil Code, uniform in its content and applicable to the whole of the country.
The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this
little corner which we have not been able to invade so far.”6
The aim of our forebears is obvious after watching the arguments in the constituent assembly. A Uniform
Civil Code, they felt, would be the final answer to the ever-growing problem of divided personal laws. The
goal was to separate personal laws from religious aspects to fully apply the concept of equality.

IV. PERSONAL LAWS IN INDIA.

Individual religious practices and beliefs determine personal laws in India. This is not the case in every
community, though. The Hindu personal laws had previously been investigated, and as a result, a bill
known as the Hindu Code Bill was submitted, which was nothing more than the secularization and
codification of Hindu laws. Before this Act, there existed a variety of discriminatory behaviors and
regulations.
But, while this legislation was being drafted, the initial goal was to create a standard code for all
communities; however, due to opposition from minorities, it was subsequently dedicated solely to Hindus.
This legislation has been subject to many modifications even after it was enacted, which is how a law
should be. It is a living, breathing concept that is never static.
Other community ordinances, on the other hand, appear to be lacking in this regard. If one looks at the
rules that apply to Muslims in the nation, they are regulated by Sharia law, which was enacted in 1937
and is based on the Quran. It is, however, under the supervision of an unelected NGO known as the All-
India Muslim Personal Law Board, which was founded in 1973. This organization was established to
interpret and carry out Sharia rules.
Polygamy was once common in many religions; nevertheless, it was abolished among Hindus with the
Hindu Marriage Act of 1955. It was still lawful in the Muslim society because they claim the Quran permits
polygamy and that it is a man's right to have four wives. This research paper will demonstrate that the
Quran promotes monogamy as a standard and that polygamy has a special meaning and need.
Regard shall be held accountable in terms of descent among the Arabs, notably the Quraish, and those
non-Arab families who have retained descent, according to the AIMPLB compendium of laws, Chapter
seven, section 117 clause 312 of this book. People in the non-Arab Muslim world are on an equal footing.

5
Constituent Assembly Debates, Volume VII, 1946-1950 (Available at: https://indiankanoon.org/doc/870715/)

6
Constituent Assembly India Debates (Proceedings), Vol. II, (Available at:
http://loksabhaph.nic.in/writereaddata/cadebatefiles/C21011947.pdf)
On this premise, an Arab descent girl can have her guardian end her marriage to a non-equal, and a
guardian can have an adult woman's marriage to a non-equal terminated.
This categorizes Muslims into three groups. Arab area, Muslims of Indian heritage with maintained
ancestry, and other Muslims who are equal among themselves but not with the first two. All are
descended from one man and female, according to verse 49.13 of the Quran, and tribes and countries
are only for identification, but respect belongs to the virtuous.
Under the guise of article 25, India tolerates a variety of discriminatory religious practices. The rules and
practices in India now are slightly different from those in the original text. Even if one of these activities is
following the original scriptures, it should, in my opinion, be regulated by legislation since it infringes on
citizens' fundamental rights.

V. CONCLUSION.
Personal laws have a well-established reputation for being very contentious. The only obvious answer is
to codify personal laws, which can only be done by legislation. For the time being, the only
recommendation I have is that we should have a draught of a Uniform Civil Code before deciding whether
to apply it.
The notion that only minorities' rights would be violated is a very limited perspective of the situation. Even
the rights of the majority community, in my opinion, will be infringed, and one can only comprehend this
once we have a draught to discuss.
Although the court can at least suggest the creation of a draught that can be published in the public
domain to gather public opinion, it is up to the legislature to legislate on this subject in its judgment. Article
25's implementation is extremely obvious; therefore, it will never be an issue during the implementation of
UCC.
It is past time for us to begin creating a UCC module to gain a clearer understanding. It's time to put the
constituent assembly's intent into action. This article has merely demonstrated the need for a UCC and
maybe indicated how it can be implemented, but it will be difficult to implement until we have a draught for
it. Because the judiciary is not elected by the public, they can only make neutral decisions or provide
suggestions. This may certainly be a solution to India's human rights dilemma, which is created by
conflicting personal laws.