The Union Government led by Prime Minister Narendra Modi took a very bold step when it went ahead with the abrogation of Article 370. The BJP led government in fact did exactly what it had promised in its manifesto.

With one promise being fulfilled, the focus now shifts to the Uniform Civil Code. Recently, Union Home Minister Amit Shah said that the UCC is part of the BJP’s manifesto. He said that they would stand by their decision, while adding that no country should have any law based on religion and there should be a single law for all citizens.

There is talk that the Modi government may table the Uniform Civil Code Bill in Parliament this year. Once passed, it would mandate implementing a common set of laws for all Indian Citizens irrespective of their faith or religion.

In 2018, the Law Commission in a consultation paper stressed on the need to do away with discrimination. This way, some of the differences within personal laws which are meaningful, can be preserved and inequality weeded out to the greatest extent possible with absolute uniformity.

UCC a possibility:

Article 370 was a temporary provision and the BJP government used this provision in the Constitution to abrogate the same. Article 44 of the Constitution on the other hand says that the state shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India.

Recently the Supreme Court had frowned upon the fact that no action had been taken in this regard. Hindu laws were codified in 1956, but no attempt has been made to frame a Uniform Civil Code applicable to all citizens of the country.

Once implemented, there would be criticism, especially from the ‘liberals’ and the Muslim community. BR Ambedkar had said that the Muslim members were reading too much into the Act and that it was possible for future governments of India to take baby steps to enforce it.

While the implementation of the UCC would have been the best thing that could have happened to India, there were Muslim members who added one clause after another to ensure that implementing the same became a Herculean task. When the draft Constitution was discussed in the Constituent Assembly several Muslim members sought for several clauses to be added.

They wanted it to read, ‘provided the personal law of any community which has been guaranteed by the statute shall not change except with the previous approval of the community ascertained in such a manner as the Union Legislature may determine by law.’

One member, Mehboob Ali Baig Sahib sought for the following clause to be added- ‘provided that nothing in this article shall affect the personal law of the citizens.

During the arguments, KM Munshi rubbished the claims made by the Muslim members and said that countries such as Turkey did not have personal laws for the minorities. Munshi even went on to say that the Muslim personal laws had much to do with religious practices and religion.

Ambedkar pointed out that until 1935 the Shariat Law was not applicable to the North-West Frontier Province. In fact, this province followed the Hindu law. There was a legislation that was brought in to include the province under the Shariat Law. He also said that in the north Malabar region, the Marumakkathayam law was followed by both Hindus and Muslims.

When Congress protected its vote bank:

Jawaharlal Nehru had been warned in June 1948 by Rajendra Prasad, President of the Constituent Assembly. He had said that to introduce basic changes in personal law was to impose progressive ideas of a microscopic community on the Hindu community as a whole.

The debate on the Hindu Code Bill took place in December 1949 and it was opposed by 23 of 28 speakers. On September 15, 1951, Prasad threatened to use his powers of returning the Bill to Parliament. Ambedkar resigned and Nehru agreed to the trifurcation of the code into separate acts. Several provisions too were diluted.

The four laws that came into existence were the Hindu Marriage Act, The Hindu Succession Act, The Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act.

Thanks to this the UCC as envisaged was never realised. Since then any debate surrounding the UCC has always remained a controversial subject. While the Hindu Code was passed in a very debatable fashion, the Muslim law remained untouched. It was for the first time that a strong government under Modi managed to outlaw the instant Triple Talaq.

Rajiv Gandhi was in fact presented with an opportunity to make changes in the lives of Muslim women. This was known as the Shah Bano case of 1985. Bano was handed a divorce 40 years after her marriage through triple talaq. The matter went up to the Supreme Court which held that she ought to be given maintenance. The court held that the provisions of Section 125 of the Code of Criminal Procedure applied to all citizens irrespective of religion. The court also recommended that the UCC be enacted.

Liberals and Muslim conservatives raised a hue and cry stating that the CRPC was a threat to the Muslim Personal Law. Instead of standing firm, the Rajiv Gandhi government crumbled to the pressure from the Muslim community and passed a law that nullified the Supreme Court’s judgment. The law was passed through the Muslim Women (Protection of Rights in Divorce) Act, 1986. Under this, Section 125 was made non-operable for Muslim women. This would mean that maintenance would be paid to Muslim women only after the mandatory iddat period or waiting period when the matter is being settled and not thereafter. In other words, this waiting period remained uncertain for Muslim women.

The anger against the Rajiv Gandhi led Congress government was seen in the elections of 1989, which it lost. In short, the Congress government in a bid to appease the Muslim community and secure its vote bank fell prey and squandered away an opportunity to bring about reforms.

It is about time now:

The BJP was in fact the first party to promise a UCC. The current government is clear in its focus and its decisions on triple talaq and Article 370 clearly suggest that it will not shy away from implementing the UCC.

The Hindus say that the Hindu Code is secular and equal to both sexes. However, the same cannot be said about the archaic Muslim personal laws, which allow for polygamy etc. It has always been the conservative Muslims who have been opposing a UCC and governments in the past have let itself get bullied by these elements.

One must also take note of what the judiciary has been saying in this case. On July 6, 2015, the court dealt with a case of an unwed Christian mother who had sought guardianship. The court held that it would be apposite for us to underscore that our Directive Principles envision the existence of a Uniform Civil Code, but this remains an unaddressed constitutional expectation.

In another judgment dated September 13 2019, the Supreme Court observed, “whereas the founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard."

It is no doubt not going to be an easy decision to implement. However, the Modi government is committed to it and it would soon become a reality. There was opposition to both the triple talaq bill and Article 370, but both were implemented.

CK Mathew, a retired IAS officer writing in the hinducentre.com makes a very interesting observation. He said that if we are to move on to a truly unified country which treats all its citizens with dignity, respect and equality, without sacrificing their basic human rights, while at the time, protecting those individual variations and cultural practices of each community, while at the time, which do not militate against basic principles of our vast and magnificent Constitution, then we would have achieved a near impossible task. This balance between general principles of civil law and specific traditions of individual religions: that is the desiderata we must aim for.