How to make a Uniform Civil Code

News: Recently, a number of state governments have proposed to frame a Uniform Civil Code for their states.

Step taken towards UCC in India So Far

Parliament enacted a civil marriage law in 1954, the Special Marriage Act and the Indian Succession Act. These enactments were made available to all citizens of India as a secular alternative. Thus, these acts together constitute a UCC of an optional nature for all Indians alike.

In addition, the Parliament also enacted a new law called the Hindu Marriage Act in 1955 to regulate religious marriages among the Hindus, Buddhists, Jains, and Sikhs. Further, A Hindu Succession Act came into force next year for the properties of those covered by the Hindu Marriage Act 1955.

The people of Goa, Daman, and Diu are governed by an archaic Portuguese Civil Code of 1867. A sizable section of citizens called Renoncants (Indians whose ancestors had during the French rule abandoned personal law) in Puducherry are governed by the 218-year-old French Civil Code of 1804.

What are the issues in the central personal laws?

The Special Marriage Act is patently discriminatory in certain matters. It mentions the prohibited degree of marriage between close relatives (like the Hindu Marriage Act). Further, the Act does not prohibit marriages between distant cousins (i.e., sapinda relationship). Thus, an act, allows a Hindu to marry a second cousin despite religious prohibition, but a Muslim is debarred to marry a first cousin despite religious permission.

In fact, the Hindu Marriage Act relaxes the rule of prohibited degrees on the basis of custom but not under the Special Marriage Act.

During the Emergency days, the Special Marriage (Amendment) Act allowed both parties’ (if Hindu) properties to be governed by the Hindu Succession Act instead of the Indian Succession Act. This was a retrograde step.

What are the issues in proposals for the state-level uniform civil code laws?

A state-level UCC seems to be prima facie incompatible with Article 44 of the Constitution. The article advocates to secure a uniform civil code for the citizens throughout the territory of India. The proposal can overlook all-India characters.

Under the Constitution, family and succession laws are in the concurrent jurisdiction of the Centre and states. Therefore, law applicable in the entire country can be enacted by Parliament alone.

Argument in favour of the state proposals

The anachronistic foreign laws are still applicable on Indian citizens in certain parts of the country. Therefore, such a code can be enacted at the state-level.

The Way Forward

There should be a single law of family rights and succession for the entire country. The law should be in compliance with the constitutional guarantees for equality before the law and equal protection of laws

The parliament should amend the discriminatory provisions of the Special Marriage Act relating to prohibited degrees in marriage. In addition, the 1976 amendment restricting the applicability of the Indian Succession Act must be set aside.

To start, the parliament can repeal and replace the archaic foreign civil code prevalent in Goa, Daman Diu, and Puducherry with the central marriage and succession laws. This will be a logical move in beginning.

Source: The post is based on an article “How to make a uniform civil code” published in the Indian Express on 14^th May 2022.