Decoding the 'Uniform Civil Code' discourse

We can trace the first signs to colonial India. The second Law Commission report released in 1835 stressed on the need for uniformity in the codification of Indian laws, relating to crimes, shreds of evidence and contracts. However, the Commission warned that: ‘’No attempt should be made to codify the personal laws of the Hindus and Mohammedans — because any such attempt might tend to obstruct rather than promote the gradual process of improvement in the state of population”

A massive debate was triggered on November 23, 1948 when the Constituent Assembly met to discuss among other things, Draft Article 35, which stated: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’’

Mohd Ismail Khan argued that ‘for creating and augmenting harmony in the land, it is not necessary to compel people to give up their personal law.’

 Naziruddin Ahmad wanted a provision added: ‘’Personal law of any community which has been guaranteed by the statue shall not be changed except with the previous approval of the community ascertained in such manner as the Union Legislature may determine by law.’’

B Pocker wanted a provision added: ‘’Provide that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law.”

Both the motions were negated.

BR Ambedkar, the Chairman of the Drafting Committee, said, ‘’It does not say that after the Code is framed, the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it.’’

Article 35 of the draft Constitution was added as a part of the Directive Principles of the State Policy in part IV of the Constitution of India as Article 44. Directive Principles of State Policy are only recommendations and are not enforceable.

Article 37 of the Constitution said that DPSP shall not be enforceable by any court. So in a sense, the pursuit for a UCC should only be an endeavour and not mandatory.

Why were only the personal laws of Hindus being codified?

Hindu Code was a ‘communal measure’, UCC a secular idea

The controversy surrounding the Shah Bano episode

All Indians should be treated with the same yardstick

Article 25 & Article 26 grant freedom of religion

Many provisions in specific personal laws violate human rights

Codification of personal laws will make the legal system more coherent

Signs of a modern progressive nation

August 2018: The 21st Law Commission had said that a UCC was ‘neither desirable nor necessary at this stage.’

October 2022: The Centre pitched for the UCC, called personal laws based on religion ‘an affront to national unity’, but added that Parliament will take the final call.

January 2023: The Supreme Court held that a state government’s decision to form a committee to examine implementation of the UCC cannot be challenged. Uttarakhand and Gujarat governments have set panels to draft their respective UCC.

March 2023: The Supreme Court closed petitions demanding a UCC, said it was meant for the Parliament to decide.

While the demand for a UCC has for long been the clarion call among the Hindu fundamentalists and the right-wing political dispensation, balancing religious and cultural sentiments on one hand and paving the way for modernity, while assuaging concerns in a constructive way may be more than a tight-rope walk. Merely copy-pasting the western template of a UCC may be counter-productive. While several cases in the past few decades have prompted a nudging from the Supreme Court on the UCC, it remains to be seen if the plan indeed takes flight.