The Urgent Need for a Uniform Civil Code in India: Insights by Justice Markandey Katju

Amalendu Upadhyaya
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What is the Uniform Civil Code (UCC) and Why is it Necessary?

Historical Context: Abolishing Outdated Personal Laws


Justice Markandey Katju argues for implementing a Uniform Civil Code (UCC) in India, advocating for modern laws that replace outdated personal laws across religions. He highlights the importance of equality, justice, and societal progress, emphasizing that the UCC is essential for the advancement of all communities, particularly for women.

The Urgent Need for a Uniform Civil Code in India: Insights by Justice Markandey Katju

Need of a Uniform Civil Code in India


By Justice Markandey Katju


The uniform civil code ( UCC ) is a proposal to replace the personal laws of different religious communities in India with a common set of rules for all ( except tribals ). If enacted, it would govern marriage, divorce, inheritance, adoption, and maintenance.

I am a strong supporter of a uniform civil code. All modern countries have a common law for all citizens, and India must modernize if it is to progress.

It is stupid to say that if sharia is abolished Islam will be abolished. It is also stupid to say that Sharia was made by God. Sharia grew out of the feudal, backward social customs in Saudi Arabia in the 7th and 8th centuries. It is totally outdated today, like Manusmriti..

The old ( non statutory ) Hindu Law was abolished in 1955 and 1956 by Parliamentary statutes, e.g. the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, etc despite the strong protest of orthodox Hindu swamis and saints ( e.g. Karpatriji, Prabhudatt Brahmachari, etc ) who said that this will abolish the Hindu religion as Hindu Law emanated from the Vedas.

However, that never happened. Hindus are still going to temples, doing puja, and observing their rituals, etc.

So abolishing the outdated, feudal sharia will certainly not abolish Islam. Has abolition of the shariat criminal law e.g. abolition of the barbaric law of stoning women to death for adultery ( sangsad ), or cutting off the limbs for theft, put an end to Islam ? Not at all. So even after abolishing sharia personal law, Muslims will keep going to masjids, saying namaz, observing roza, going on haj, etc.

In fact shariat personal law has kept Muslims backward, because oral talaq, nikah halaala, etc ( and burqa ) have kept many Muslims backward. Since women comprise half of society, keeping women backward means plucking off one of the two eyes from one's face.

Shariat was made 1400 years ago. Must laws made in the 7th century be applied today though society has totally changed since then ? After all, laws reflect social conditions, and if social conditions have changed, so must the laws. In this age of cars and aeroplanes must one continue riding on a camel ?

Some Muslims say that sharia was made by Allah. But the same argument was made by orthodox Hindus, who said that the old ( non statutory ) Hindu law emanated from the divine Vedas and so was unchangeable, and orthodox Christians who said that the biblical injunctions regarding marriage etc were made by God. All this is nonsense and humbug.

Laws have to change as society changes. How long will stupidity be tolerated ? How can you have oral talaq, which keeps a damocles sword hanging over every married Muslim woman, in this age of equality between men and women.?

The issue of a uniform civil code has recently been raised by the BJP . I am no supporter of the BJP, but I fully support enactment of a uniform civil code.

Article 44 of the Indian Constitution states : " The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India ".

No doubt Article 44 is in the Directive Principles, and not the Fundamental Rights of our Constitution, but Article 37 states :

"The provisions contained in this Part shall not be enforceable in any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws" The Constitution was made in 1950, and 74 years have passed since then, but Article 44 has till now been totally ignored, obviously for vote bank politics.

I have been raising my voice consistently whenever there was any atrocity on, or oppression of, Muslims, but on the issue of a uniform civil code I have firm views. In fact one of the reasons for Muslims in India remaining backward is that there was no modernization of their personal law.

In all modern countries there is usually one common law for everybody. In fact in India there is one common criminal law (I.P.C. and Cr. P.C.) for everybody, and the land laws ( e.g. the U.P. Zamindari Abolition Act, 1951) for everyone. Nobody objected to that, though many of these laws are against the Muslim law. For instance, Muslim criminal law provides for stoning to death for women committing adultery, or cutting of the limbs of thieves, but that would be illegal under the I.P.C.

The injustice in Muslim Law can be seen in the fact that a Muslim husband can divorce his wife by simply giving oral talaq, without ascribing any reason ( earlier he could even give triple talaq, but that has now been declared illegal by the Indian Supreme Court in 2017 in Shayara Bano vs Union of India ), whereas a Muslim wife cannot do so. She has to file a petition in court, which usually takes years to decide, and she must make out a ground for divorce (e.g.cruelty, adultery, etc). Thus there is discrimination against the wife in two ways : (1) A Muslim husband can get a divorce without going to court by an oral talaq ( or even by sending letters ), whereas the wife who seeks divorce has to go to court and file a petition which usually takes years to decide (2) The Muslim husband need not give any ground for divorce, he can divorce his wife whimsically or merely because he has lost interest in her, whereas a Muslim wife has to plead some ground for divorce mentioned in section 2 of the Dissolution of Muslim Marriages Act, 1939, and she has to produce witnesses or documentary evidence in support of that ground, and prove it.

This is not only very unjust to the wife, it is also violation of Articles 14, 15 and 21 of the Constitution.

Article 15(3) of the Constitution states that there can be no law against women, but there can be a law in their favour. The Muslim law of divorce is directly contrary to Article 15(3).

When the Supreme Court gave a progressive judgment in Shahbano's case many Muslims raised a hue and cry against it, saying it was against the shariat That judgment said that a Muslim husband has to give maintenance to his wife if he divorces her. This was a progressive and humanitarian judgment, because who will support a divorced woman having no source of income ( and who may also have small children) except her husband ? All over the world a husband has to give maintenance to his divorced wife. Why then should it be different for Muslims ? Muslims should have supported this judgment, but instead most of them raised a big hue and cry saying it is against the shariat, and Rajiv Gandhi, afraid of losing his Muslim vote bank, legislatively repealed the ruling.

I may give an illustration of the backwardness of some of the Muslim laws. When I was a Judge in the Supreme Court a case came before my bench from Orissa. In some village in Orissa there was a young Muslim couple with 3 small children. One night, under the influence of liquor, the husband had a quarrel with his wife, and said to her 'talaq,talaq, talaq'. Nobody else was present at that time, and nobody came to know of it. However, about a month thereafter the wife was indiscrete, and told a friend of hers about this, and this friend told someone else, and so on, until the maulana of the local mosque came to know of it. He then declared that the couple were no longer husband and wife, and so could not be allowed to live together. At this a mob of local Muslims reached the couple's house and told the wife to get out of her husband's house as she was no longer his wife. She protested that she had 3 small children so where could she go, but the mob would not relent. A petition was filed before the Orissa High Court, which was dismissed, and against that order an appeal came before my bench in the Supreme Court.

I observed in court that everyone in this country has to behave in a civilized manner, whether Hindu or Muslim. If the couple wants to live together, how is that anyone's business ? I held that the couple had the right to continue living together, and directed the police to give protection to the couple, and file a criminal case and take action against anyone threatening them.

The Muslim law is that if a husband divorces his wife he cannot straightaway thereafter remarry her. After the divorce the woman must marry some other man (called nikah halaala), and the marriage must be consummated, and only if thereafter the second husband divorces her can the first husband remarry her. Is this rational ? I think it is barbaric.

A Muslim man can marry 4 wives, but a woman can, at a time, have only one husband. Now monogamy represents equality between man and woman, and this is the age of equality. So why should polygamy be permitted to Muslim males ? It may be mentioned that upto 1955 a Hindu male could have unlimited number of wives, whereas a woman could have only one husband. This law was altered by the Hindu Marriage Act, 1955, which provides for monogamy.

It can be seen that much of the Muslim personal law is totally outdated and inhuman, but it is not allowed to be changed due to vote bank politics.

I submit that those who have not allowed changes in the Muslim personal law have done a great disservice to Muslims. Retaining the outdated personal law has contributed to keeping Muslims backward.

Before ending I wish to say that I know that some Muslims may oppose my views, but that is wholly irrelevant for me. I have always supported Muslims whenever I thought that injustice was being done to them, and my track record can be seen in this connection. In my opinion great injustice has been done to Muslims by not modernizing their personal law.

I know that after reading this article many Muslims will brand me as a BJP agent, and I will draw a lot of flak from bigoted idiots. But so be it. I was always a sworn enemy of idiots.

(Justice Katju।s a retired judge of the Supreme Court of।ndia. These are his personal views)

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