ABSTRACT
The Uniform Civil Code (UCC) as envisioned under Article 44 of the Constitution of India seeks to have a unified system of personal laws with the objective of ensuring equality and justice across the diverse societies of India. The Uttarakhand UCC is the first step taken at aState-level towards such obligation which has sparked debates around the nation regarding its constitutionality, inclusivity and social acceptance. The author seeks to examine this UCC from a critical lens to understand its legal framework, highlighting its positive intention towards aspects like prohibition of polygamy and child marriage as well as extracting the legal and social implications of certain provisions like mandatory registration of live-in relationships along with its strict procedural rules. The objective of the paper is also to identify the Code’s potential conflicts with the Fundamental Rights and the Pluralistic ethos of the Country. The paper advocates for gradual and spontaneous shift towards the uniformity of personal laws highlighting the need of inclusivity promoting gender justice and equality while maintaining the importance of cultural diversity inherent in the nation as a whole. Lastly, the paper calls for a consensual and participatory approach towards implementing the UCC in the State and taking a cue to have a balance of equality and individual freedoms with the Constitutional ethos of diversity and secularism.
- INTRODUCTION
India is a diverse country where people from all religions and faith have equal rights as citizens under the Constitution of India. The Uniform Civil Code (hereinafter referred to as the ‘UCC’) in India has always been a point of debate and discussions on the question whether it should replace the existing system of personal laws for people from different religions. The debate revolves around the factors of national integration, modernity, secularism and gender equality. The proponents of UCC argues on the grounds of inequality and modernity by saying that the current system promotes inequality as there are different laws for people from different religions as well as for men and women and further says that UCC is the key to modernity in the prospect of India as a developed nation in the near future. On the other hand, the UCC is considered a threat by those people who have accepted legal pluralism as a reality and aim to achieve equality by the way of reforming personal laws.[1]
It is the obligation of the State to secure the UCC for all its citizens as per article 44 of the Constitution of India. The socio-legal and political discourse of India in recent times has made it the top topic revolving around the controversy regarding the enforcement of this constitutional obligation. This tussle between different groups had gained considerable highlight especially after the judgement of the Supreme Court in the Shah Bano Case.[2]A series of judgements followed where the apex court highlighted the need of having the UCC for the nation.[3] However, the Supreme Court has mostly refrained from directly engaging with the issue citing the lack of jurisdiction by stating that it is a matter that falls within the purview of the legislature. Recently, the discussion has again gained the momentum in light of the inviting of the public opinion by the Law Commission of India and the implementation of the UCC by the State of Uttarakhand, thus becoming the first State to have drafted and implemented the UCC in the country.
A five-member committee, led by former Supreme Court Judge Smt. Ranjana Prakash Desai was formed on 27th May, 2022 by the Uttarakhand Government to prepare a report on the implementation of UCC in the State on matters relating to marriage, divorce, property rights, guardianship, inheritance, maintenance and custody. The committee held extensive meetings and had discussions over all the aspects of implementing the UCC in the State. It had invited suggestions and opinions from the residents of the State, the government agencies, the Non-Governmental Organisations and even the various governments, political leaders and the religious leaders of various denominations. A total of over 20,000 stakeholders were consulted and over 2,30,000 written submissions were received by the expert committee.[4]The draft of the Code was tabled in the Legislature and passed with majority as the Uniform Civil Code, Uttarakhand, 2024.[5]
It is implemented with the objective of strengthening the secular fabric of the State, fostering equality and oneness, and fighting the discrimination and inequalities on the basis of religion in the society. The code mentions in its Preamble that it is an Act “To govern and regulate the laws relating to marriage and divorce, succession, live-in relationships and matters related thereto”. This code contains extensive provisions having 392 sections and 7 schedules. The author, through this paper, aims to study the Code in its entirety and examine its feasibility and implications in light of the legal aspects concerning its implementation. The author seeks to deal with the provisions taking into account all the factors and opinions surrounding it which have been advocated from time to time both in its favour and against it. The ultimate objective of this paper is to identify the lacunae and shortfalls of the Code and propose the way forward so that the intention of the legislature to have an equitable society free from the discrimination and injustice can be fulfilled and prove to be a test case for fulfilling the constitutional obligation of article 44 throughout the country.
[1]Tanza Herklotz, “Dead Letters? The Uniform Civil Code through the Eyes of the India Women’s Movement and the Indian Supreme Court”, 49(2) Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America 148-149 (2016).
[2]Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 945.
[3] Example: Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935; Smt. Sarla Mudgal v. Union of India, AIR 1995 SC 1531. However, In Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573, the court refused to entertain the writ petitions by observing that “it is an issue of state policy with which the court will not ordinarily have any concern”.
[4] Samaan Nagrik Sanhita, Uttarakhand 2024, available at: https://ucc.uk.gov.in/about-us (last visited on 05th May, 2025).
[5]Act No. 03 0f 2024.