Explained: Uniform Civil Code And Centre's Reference To 22nd Law Commission

Clarifying its position on the Uniform Civil Code (UCC), the centre yesterday told the Supreme Court that there is constitutional obligation to uphold it.

Submitting its response to the petition filed by advocate Ashwini Upadhyay, the centre said that the people of different religions and different denominations following separate property and matrimonial laws is an ‘affront to the National Unity’.

The top court was hearing the petition seeking uniformity in laws governing matters of divorce, succession and inheritance and adoption and guardianship for all, irrespective of gender and religion, reported the Indian Express.

Upholding the clause of constitutional obligation the centre noted, “Part IV of the Constitution of India is related to Directive Principles of State Policy and creates an obligation upon the State to endeavour to secure for citizens a Uniform Civil Code throughout the country under its Article 44.” According to the submission, Article 44 has the objective to “strengthen the Secular Democratic Republic, as enshrined in the Preamble of the Constitution.”

“This provision is provided to effect integration of India by bringing communities on the common platform on matters which are at present governed by diverse personal laws. This Article [44] is based on the concept that in matters of inheritance, right to property, maintenance and succession, there will be a common law. Article 44 divests religion from social relations and personal law,” it noted.

Pointing to the constitutional significance of the matter, the centre informed the SC that it has already referred the matter to the 22^nd law commission that has already been constituted but waiting for the appointments of chairman and other members. It has requested the law commission to “undertake examination of various issues relating to Uniform Civil Code and to make recommendations thereof.”

The term of the 21^st law commission got over on August 31, 2018. During its period, the centre said, it conducted a long research and interacted with different stakeholders leading to the uploading of report titled Reform of family law for ‘wider deliberations/discussions’.

The centre categorically informed the top court that it is a legislative matter “for the elected representatives of the people to decide” and sought the dismissal of the petition that asked for the intervention of the SC.

At this juncture, it is crucial to know what is UCC? What are the legal provisions and debates?  Here are all you need to know.

What is Uniform Civil Code?

Uniform Civil Code or UCC is to provide one law for all the religious communities governing the issues of marriage, adoption, inheritance, divorce etc. It is directed towards abolishing the diverse personal laws that is considered as one of the pillars of constitutional diversity.

Article 44 of the constitution mentions that the state will take the endeavour to implement a UCC across territories of the country.

But Article 44 is part of the directive principles that means it is not justiciable- enforceable by the court of law. But, the fundamental rights are justiciable and can be enforced by the courts. Other words in the directive principles also mention “in particular strive”; “shall in particular direct its policy”; “shall be obligation of the state” making it a policy level obligation, not a judicial matter for implication.

However while Article 43 notes, “state shall endeavour by suitable legislation”, in Article 44 the suitable legislation part is missing making it not compulsive on the legislature as such.

Notably, the fundamental rights are seemingly more important than directive principles. The SC in its judgement in Minerva Mills (1980) case said, “Indian Constitution is founded on the bed-rock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles). To give absolute primacy to one over the other is to disturb the harmony of the Constitution.”

There is also another constitutional twist. Article 31C that was inserted after the 42^nd amendment in 1976 by Indira Gandhi Government says that if a law is made to implement the directive principle, it can’t be challenged in the court of law in the grounds of violation of fundamental rights secured under Article 14 and Article 19.

What is the conflict between UCC and the Personal Laws?

While personal laws uphold the diverse community based rights of the individuals, UCC is directed at imposing on a single law governing all aspects of social life. There are several laws in India like Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act that follow the idea of UCC and is applicable across the territory.

However, several amendments into these laws also made it diverse and contextual. In 2019, several states opposed the imposition of Motor Vehicles Act.

The legal experts say if the founders of the constitution wanted the personal laws to be abolished gradually they would have put it solely in the domain of the parliament. But, placing the personal laws in the concurrent list, it has categorically indicated its wills. The 2018 law commission report that the Government even mentioned to the SC said that the UCC is neither feasible nor desirable.

Uniform Civil Code V/s The Fundamental Rights

Article 25 gives all the religions the right to profess and practice their own religion. Article 26 (b) in addition gives the right to any religious denomination to “manage its own affairs in matters of religion.”

An individual’s freedom under the Article 25 whereas has limits depending on “public order, health, morality” and is connected to fundamental rights, Article 26 reflects the community rights and is independent of the individual fundamental rights.

During the debates of the constituent assembly, the conflict over fundamental rights and uniform civil code was taken up seriously. Whether the UCC should be kept in the fundamental rights chapter had been settled by a vote. Sardar Vallabhbhai Patel who was leading the sub-committee on fundamental rights said that the provision is out of the scope of fundamental rights and kept it aside.

BJP since its inception has been a vocal promoter of the UCC. The political analysts, however, note that the idea of UCC for BJP is more of imposing a Hinduised code than any legislative reform or constitutional obligation.