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UNIFORM CIVIL CODE AND SECULARISM: BALANCING EQUALITY AND DIVERSITY IN INDIA
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UNIFORM
CIVIL CODE AND SECULARISM: BALANCING EQUALITY AND DIVERSITY IN INDIA
ABSTRACT
The Uniform Civil Code (UCC),
enshrined in Article 44 of the Indian Constitution, has been a subject of
sustained attention due to judicial interventions and vigorous parliamentary
debates. The UCC proposes a unified framework of personal laws governing marriage,
divorce, inheritance, adoption, and maintenance, applicable to all citizens
irrespective of their religion. Proponents of the UCC argue that its
implementation would reinforce the constitutional principle of equality and
ensure uniformity in personal laws. However, critics contend that it could
conflict with the religious practices and cultural traditions of various
communities, potentially undermining India’s pluralistic identity.
This paper delves into the
relationship between the UCC and secularism, two core principles of the Indian
Constitution. It explores the necessity of implementing a uniform legal
framework, assessing its potential to promote justice and equality.
Additionally, the paper examines the practical challenges associated with the
UCC’s implementation, including the need to balance the ideals of secularism
with the rights of religious and cultural communities. Furthermore, the study
evaluates whether adopting the UCC would benefit a culturally diverse nation
like India, where unity in diversity forms the cornerstone of national
identity. By analyzing these dimensions, the paper aims to provide a nuanced
perspective on the implications of the UCC, addressing its feasibility,
relevance, and alignment with India’s constitutional vision of equality and
secularism.
Keywords: Uniform Civil Code, Secularism, Equality, Constitution, Indian diversity
INTRODUCTION:
A thorough reading of the constituent
assembly debates on the incorporation of Uniform Civil Code[1]
(UCC) into the Indian Constitution reveals that several arguments were laid
down for and against the inclusion of UCC. At this juncture it is important to
throw some light into the arguments that were presented. Mr. Mohamed Ismail
Sahib opined that “for creating and augmenting harmony in the land, it is not
necessary to compel people to give up their personal laws”[2].
Mr. Naziruddin Ahamad speaking on behalf of not just Muslim community but all
other communities presented that every religion having its own set of laws,
these religious laws must be kept out in framing the UCC[3]. Shri
Alladi Krishnaswami Ayyar points out that “the Article actually aims at amity.
It does not destroy amity. The idea is that differential systems of inheritance
and other matters are some of the factors which contribute to the differences
among the different people of India. What it aims at is to try to arrive at a
common measure of agreement in regard to these matters[4]”.
Protection of religious diversity,
uniformity for the sake of national unity[5], implementation
of the UCC only with the consent of the people were few of the ideas portrayed
by the constitution makers on the matter of “Uniform Civil Code”.
INTERPLAY
BETWEEN UCC AND SECULARISM:
The principle of Uniform Civil Code aims
at harmonizing and standardizing the personal laws of the citizens in matters
relating to marriage, divorce, adoption, inheritance inter alia whereas the
concept of secularism being the basic feature of the Constitution seeks to
secure all its citizens “liberty to thought, belief, faith and worship”.
Secularism eliminates God from the matters of the state and ensures that no one
shall be discriminated against on the ground of religion. The state can have no
religion of its own. It should treat all religions equally.
Art. 25(1) guarantees the freedom of
conscience and the right to profess, practice and propagate any religion. As we
know that no fundamental rights are absolute in nature, even right to freedom
of religion is not free from restrictions. Discussion of these restrictions
play a significant role in the debate concerning the need for UCC and whether
implementation of UCC negates the very idea of secularism. The right to
religion is subject to public order, morality, health and are also limited by
other provisions of Part III of the Indian Constitution. Hence, in the name of
religion, public order, morality etc., cannot be dismantled. Additionally, Art.
25(2)(a) and (b) empowers the state to regulate or restrict any activity
associated with religious practice and the state is empowered to make any law
in order to bring social reform and welfare. Thus, whenever, there is a
conflict between the need for social welfare and reform and religious practice,
religion must yield.
The objective behind incorporation of
Art. 44 is clearly not to jeopardize or interfere with the religious freedom of
the citizens, but to standardize the personal laws so as to bring about
uniformity. A clear reading of Art. 25 suggests that for the purpose of nurturing
social transformation the state is free to interfere with the religious
activities and the same will not amount to violation of principle of
secularism. Articles 25 and 44 demonstrate that while the former protects
religious freedom, the latter separates religion from interpersonal
relationships and the rule of law. Without a doubt, the guarantee embodied in
Articles 25 and 26 cannot be extended to marriage, succession, and similar
secular affairs. By eliminating ideological inconsistencies, a unified civil
code will advance the cause of national integration[6].
LEGISLATIVE
AND JUDICIAL EFFORTS IN IMPLEMENTING UCC
Over the years, several attempts have
been made by the Parliament to incorporate uniformity in personal laws by
enacting various legislations. They have been briefly discussed below.
1. Special Marriage Act, 1954:- The Act
promotes secularism, allowing individuals belonging to different religions to
enter into the marital bond without following any particular religion[7].
2. Hindu Marriage Act, 1955:- The Act
provides for a common code dealing with matters relating to marriage and
divorce for Hindus, Sikhs, Jains and Buddhists[8].
3. Hindu Succession Act, 1956:- This law
has been enacted to amend and codify the law relating to intestate succession
among Hindus, Sikhs, Jains and Buddhists. The law aims to achieve uniformity in
matters relating to succession, inheritance etc[9].
4. Dissolution of Muslim Marriages Act,
1939:- The Act has been formulated to unify and clarify Muslim law provisions
regarding suits for dissolution of marriage by women married under Muslim law
and to resolve uncertainties concerning the impact of a married Muslim woman's
renunciation of Islam on her marital bond[10].
5. Muslim Women (Protection of Rights on
Divorce) Act, 1986:- The Act aims at protecting the rights of muslim women who
have been divorced and also provides for matters pertaining to maintenance[11].
6. Muslim Women (Protection of Rights on
Marriage) Act, 2019:- Talaq-e-Biddat or Triple Talaq was widely opposed by muslim
women from a very long time. As an aftermath of Shayara Bano judgment, the 2019
Act was passed which declares Triple Talaq as void and illegal and also
prescribes punishment for the same[12].
7. Goa Uniform Civil Code:- Goa follows
Goa Uniform Civil Code which is based on the Portuguese family laws. It
provides a uniform law on matters connected with marriage, divorce, succession,
property etc[13].
8. Uniform Civil Code Rules,
Uttarakhand, 2025:- Uttarakhand has become the first state in India to give
effect to UCC through the implementation of Uniform Civil Code Rules,
Uttarakhand, 2025[14].
The Rules provides various guidelines on matters relating to marriage, divorce,
matrimonial disputes and live-in relationships[15].
The Judiciary has also played an
active role in upholding the principle of Uniform Civil Code through a number
of judgements over the years. Some of the important case laws have been
discussed below.
·
Mohd.
Ahmed Khan v. Shah Bano Begum
The judgement passed in the above
case is a testament to the efforts of the judiciary to uphold the principle of
UCC. When a muslim wife was refused payment of maintenance by the husband, she
knocked the doors of the Court, thereby claiming her right of maintenance under
Section 125 of the Criminal Procedure Code, 1973. Sec. 125 imposes a duty upon
every person having sufficient means, to maintain his child, wife, father or
mother and in case if he fails to perform his duty, the Magistrate is
authorized to pass an order directing such person to pay the maintenance amount.
This provision is secular in character, aiming to provide uniform relief in
cases of abandonment. The court held that “Sec. 125 was a secular welfare
measure operating independent of traditional law for assisting persons who are
not capable of maintaining themselves”. It further held that “A common civil
code will help the cause of national integration by removing disparate
loyalties to laws which have conflicting ideologies”[16].
·
Sarla
Mudgal v. Union of India
In this case, a Hindu man who was
married to a Hindu woman, got converted to Islam in order to solemnize his
second marriage with another woman. It is to be noted here that under the Hindu
law bigamy is not permitted whereas Muslim law permits a Muslim man to have
four wives at a time. The court observed
that “religious practices, violative of human rights and dignity and sacerdotal
suffocation of essentially civil and material freedoms, are not autonomy but
oppression. Therefore, a unified code is imperative both for protection of the
oppressed and promotion of national unity and solidarity”.
·
Danial
Latif v. Union of India[17]
The Court upheld the constitutional
validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and
held that a Muslim divorced woman who has not remarried and is not capable of
maintaining herself has got the right to receive maintenance from the estranged
husband. The Act imposes the duty on the husband to provide for maintenance
even beyond the iddat period.
·
John
Vallamatton v. Union of India[18]
The petitioners in this case
challenged the validity of Section 118 of the Indian Succession Act as being
violative of Articles 14 and 25 of the Indian Constitution. Sec. 118 imposed
certain restrictions on a Christian having a niece, nephew or any other
relatives from bequeathing his or her property.
The Court observed that S.118 was indeed violative of Article 14. The
Court further held that “Art 44 is bases on the premise that there is no
necessary connection between religion and personal law in a civilized society”.
·
Shayara
Bano v. Union of India[19]
Ms. Shayara Bano and her husband Mr.
Rizwan Ahmed got married in the year 2002. Throughout her marriage she was
harassed for dowry and finally in the year 2015, Mr. Rizwan Ahmed divorced Ms.
Bano through Talaq-e-Biddat also known as triple talaq which allows a Muslim
husband to divorce his wife just by uttering the word ‘talaq’ three times
without the consent of the wife. Ms. Bano challenged the validity of
Talaq-e-Biddat, polygamy and nikah-halala as violative of right to equality,
right against discrimination and right to livelihood. The Court after hearing
the matter held that the practice of triple talaq is unconstitutional and void.
BARRIERS TO
THE IMPLEMENTATION OF UCC
1. Unity in Diversity
India being a diverse
nation, the process of implementing UCC would become very challenging. It is
practically very difficult to bring in common set of rules for country with
diverse cultures and traditions[20].
2. Attack on Fundamental Right to
Religion
The implementation of UCC
is considered as an encroachment of fundamental rights guaranteed under
Articles 25 to 28.
3. Threat to Religious Minorities
Religious minorities may
be under the impression that adoption of UCC would be threat to their customs
and religious practices. Hence, there is great amount of opposition against the
UCC by religious minorities.
4. Disruption of peace in the society.
One of major problems
associated with the implementation of UCC is that it would invoke communal
tensions in the society, thereby disrupting peace in the society.
5. Lack of Consensus
The government,
legislature, judiciary, and civil society are divided on initiating and
implementing the UCC[21].
CONCLUSION
Even with all the practical
challenges associated with the implementation of UCC, the Code is the need of
the hour. In the modern day, the age-old customary laws have no place. A common
code would ensure equality in the true sense and also eradicate unnecessary
practices associated with religion. Uttarakhand has taken up the initiative of
implementing the UCC, a thorough reading of the Rules reveals that the Code is
not meant to attack the religious freedom but is only an attempt to bring in
uniformity in personal laws so as to ensure equality.
*
Assistant Professor, Shri Dharmasthala Manjunatheshwara Law College, Centre for
Post Graduate Studies and Research in Law, Mangaluru (Affiliated To Kslu,
Hubballi)
[1] Article 44 Uniform Civil Code for the Citizens - The
State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.
[2] Constitutional Assembly Debates,
Vol. VII, 23.11.1948, at p. 541
[3] Ibid
[4] Ibid at p.549
[5] P. Ishwara Bhat, Law and
Social Transformation (Eastern Book Company, Lucknow 2020) at. p717
[6] John Vallamatton v. Union of
India, (2003) AIR 2902 (India)
[7] Numan Khan, Is UCC the Unity
we Aspire for in our Diversity?, JUDICIAL ACADEMY JHARKHAND (Feb 17, 2025,
11:27 AM) https://jajharkhand.in/wp-content/uploads/2024/09/Is-UCC-the-Unity-we-aspire-for-in-our-Diversity.pdf
[8] The Hindu Marriage Act, 1955,
No. 25, Acts of Parliament, 1955 (India)
[9] The Hindu Succession Act, 1956,
No. 30, Acts of Parliament, 1956 (India)
[10] The Dissolution of Muslim
Marriage Act, 1939, No. 8, Acts of Parliament, 1939 (India)
[11] Muslim Women (Protection of
Rights on Divorce) Act, 1986, No. 25, Acts of Parliament, 1986 (India)
[12] Press Information Bureau, Muslim
Women (Protection of Rights on Marriage) Act, 2019, GOVERNMENT OF INDIA,
(Feb 17, 2025, 11.43AM) https://pib.gov.in/FactsheetDetails.aspx?Id=148565®=3&lang=1
[13] Saurav De, Navigating the
Complexities of Implementing a Uniform Civil Code in India: A Historical and
Comparative Analysis, 7 IJLMHS 1516, 1536 (2024)
[14] TOI News Desk, Uniform Civil
Code implemented in Uttarakhand: Rules Released, Portal Launched, TOI, Jan
27 2025, https://timesofindia.indiatimes.com/india/uniform-civil-code-implemented-in-uttarakhand/articleshow/117595906.cms
[15] The Uniform Civil Code Rules,
Uttarakhand, 2025, No. 101, Govt of Uttarakhand, 2025 (India)
[16]
Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 (India)
[17] Danial Latif v. Union of India
(2001) 7 SCC 740 (India)
[18] John Vallamatton v. Union of
India, (2003) AIR 2902 (India)
[19] Shayara Bano v. Union of India
WP ( c ) 118//2016
[20] K Ariffa, Uniform Civil Code
in India: Impact on its Implementation 1 JLLRD 30, 31 (2024)
[21] PMF IAS, Uniform Civil Code:
Need, Challenges & Different Views on UCC, (Mar 10 2025, 4.34 AM) https://www.pmfias.com/uniform-civil-code/
Article Information
UNIFORM CIVIL CODE AND SECULARISM: BALANCING EQUALITY AND DIVERSITY IN INDIA
Authors: APOORVA SHETTY
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/12
- Issue 7
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International Journal for Legal Research and Analysis
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