Prof. Rasal Singh
In India’s multifaceted legal landscape, a singular, all-encompassing family law that resonates across diverse socio-religious groups remains absent. The proposition of a Common Civil Code (CCC) seeks to bridge this gap, envisioning a unified legal framework that melds the myriad strands of family laws into a coherent whole. The CCC is envisaged as a codified set of common laws aiming to supersede diverse personal legislations especially regarding women and children in India, thereby governing social domains such as matrimony, succession, and guardianship uniformly across all citizenries. This initiative is pivotal in fostering engendered-legal egalitarianism, fortifying the constitutional fabric of the Indian polity, and advancing the ethos of gender equality, woman empowerment, child security, social equity, thereby knitting a more cohesive and inclusive societal tapestry.
As we stride into the 21st century, the clarion call for a CCC resonates louder than ever, particularly as the Uttarakhand has approved the CCC. Uttarakhand has become the first state in the country after Independence to adopt the CCC. Though a similar legislation has been operational in Goa since the days of Portuguese rule.
The Uttarakhand CCC bill marks a significant stride towards reforming personal laws in India, it proposes the abolition of practices like polygamy and child marriage, advocating for a uniform marriageable age to ensure that girls have the opportunity to complete their education. The bill envisions equal inheritance rights for both sons and daughters, and uniform divorce procedures, emphasizing the necessity of marriage registration for accessing state services. This initiative extends adoption rights across the board, including for Muslim women, and calls for the elimination of controversial practices such as halala and iddat, while also making provisions for legal recognition of live-in relationships. This will not only empower the women of Uttarakhand and protect its children, but also will act as a precedent for the whole of the country.
Furthermore, the bill carefully navigates the socio-cultural landscape of Uttarakhand by exempting Scheduled Tribes, acknowledging the need to preserve the unique heritage of the state’s indigenous communities. It proposes a harmonized approach to divorce, mandating court oversight and introducing a ‘cooling-off’ period to foster reconciliation. Innovative measures for child custody in cases of parental disputes suggest grandparents as potential guardians, simplifying the guardianship process for orphaned children and outlining provisions for the welfare of a deceased spouse’s parents. These comprehensive proposals reflect a thoughtful attempt to balance the preservation of cultural diversity with the pursuit of legal uniformity, aiming to weave a stronger fabric of national integration and social justice.
Time and again PM Modi has emphasized that the country cannot function with multiple laws and underscored that the Common Civil Code aligns with the founding principles and ideals of the Constitution. The move by the Uttarakhand Govt to approve the CCC signals a step closer to the realization of a uniform legal framework in the state, addressing issues of personal laws that have long been a point of contention. Further, the Indian Government is expected to utilize Uttarakhand’s bill as a foundational blueprint for crafting a national CCC Bill. However, the political arena shows a divide on the CCC, with parties like Congress, CPI, and Trinamool among those opposing it, while AAP, Shiv Sena, and others supporting the initiative.
The discourse surrounding the Common Civil Code (CCC) in India has long been a focal point of intense debate and contention, challenging the fabric of Indian political and social spheres for many years. Its first mention can be traced back to the 1833 Charter Act, which granted the British Government the authority to codify Hindu and Muslim laws. The laws were mainly around banning grotesque practices like Sati and legalizing widow remarriage in the Hindu community. In the lead-up to India’s independence, the Lex Loci report of 1840 underscored the imperative for a unified legal framework, particularly concerning criminal, contractual, and civil law, leading to their significant development and acknowledgment. Despite this progress, the Queen’s Proclamation in 1859, which vowed non-intervention in religious matters, ensured that personal laws remained untouched, preserving traditional religious legal practices. However, it was only in the early 20th century that the idea of a CCC began to gain significant momentum.
The CCC’s journey, deeply rooted in the constitutional directive enshrined in Article 44, embodies the aspiration for universal legal equality, yet its realization remains elusive, shadowed by ongoing religious and cultural debates. The concept was significantly deliberated upon during the formation of the Indian Constitution, aiming to bring disparate personal laws under a unified legal canopy, thereby promoting commonality and fairness in social matters for all citizens.
The genesis of the CCC discourse can be traced back to the pivotal discussions within the Constituent Assembly, where luminaries such as Dr. Bhimrao Ambedkar, Sardar Patel, Hansa Mehta, and Meenu Masani, among others, laid the foundational arguments for a modernized legal system that upholds gender equality and individual rights, championing the cause of national unity and secularism. Despite the efforts of the notable leaders and later the inclusion of the CCC in the Directive Principles of State Policy, the proposal was met with resistance, particularly from sections of the Muslim community, highlighting the intricate challenge of reconciling a unified legal framework with India’s pluralistic identity.
After the Constitution came into effect, the Indian Government undertook several reforms in Hindu personal laws. In the 1950s, a series of laws known as the Hindu Code Bills were passed, which reformed Hindu law and made it more progressive, especially concerning women’s rights. These included the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and the Hindu Adoptions and Maintenance Act. However, similar reforms were not carried out for other religious communities, particularly Muslims, due to political sensitivities and resistance from these religious groups.
The imperative for a CCC has also been underscored by various rulings from India’s apex court, advocating for a harmonized legal framework that transcends the segmented laws currently governing familial and personal matters. These legal pronouncements not only interpret the constitutional mandate but also highlight the pressing need for a CCC to align with evolving societal norms and principles of justice. Shah Bano Case (1985), Sarla Mudgal Case (1995), John Vallamattom Case (2003), Danial Latifi Case (2001) and Joseph Shine Case (2018) immendely contributed to the ongoing discourse on a CCC by emphasizing the importance of eliminating discriminatory practices in the name of personal laws.
The discussion around polygamy within Islamic jurisprudence underscores its constrained intent, primarily safeguarding orphans and promoting equity among spouses, as delineated in the Quran. This viewpoint spurred legal reforms in nations like Turkey and Tunisia, outlawing polygamy on secular and theological bases, respectively. Such legislative changes are part of a wider movement towards modernizing laws to better align with contemporary socio-economic and moral frameworks, as seen in Algeria and Morocco. Examples from other countries validate the significance of the CCC. Even countries like Saudi Arabia are taking steps to reconstruct their laws to enhance gender equality and social welfare. While Russia, USA, Switzerland, Brazil, Germany are among the few who have their own CCC.
However, in India, despite increasing calls for reform, especially from Muslim women, the laws governing polygamy remain entrenched in tradition and lack formal codification, presenting a key opportunity for legal reform. As Babasaheb Ambedkar and other learned members of the Constituent Assembly had proposed, uniformity in personal laws is essential for empowering women and ensuring gender equality in matters of marriage, divorce, and inheritance. A CCC would eliminate discriminatory practices that deprive women of their rights and provide them with equal opportunities and protections.
The Common Civil Code thus, will ensure that all women and children, regardless of their religion, are treated equally and fairly in all matters of personal laws. Besides, having a single set of laws would address the problems of multiple laws in different regions with the same legal framework. It would be more convenient for judicial procedures, and freedom of choice would be given to individuals. The implementation of a Common Civil Code would also strengthen the true character of the Indian Constitution.
The Common Civil Code’s
Unaffected Stance
Unlike the apprehensions surrounding, this law will not influence the marital customs of different religions or tribes. It is important to emphasize that the Common Civil Code will not interfere with the customs and traditions of any religion or tribe in India. Marital customs, such as ‘Nikah’ among Muslims, ‘Anand Karaj’ among Sikhs, ‘Phera in front of fire’ among Hindus, and ‘Holy Matrimony’ among Christians, will continue to be practiced according to the respective beliefs of each religion. Furthermore, the Common Civil Code will not impact the customs and traditions of tribal communities in the country. The Indian Constitution contains provisions to protect the social and traditional practices of tribes, such as Article 371(A) for Nagas and Article 371(G) for Mizos. Additionally, the establishment of the National Commission for Scheduled Tribes and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 further safeguard their rights and customs. Tribal areas are designated under the Fifth and Sixth Schedules of the Constitution, and various councils and autonomous bodies ensure the protection of tribal customs and traditions. Therefore, the Common Civil Code will not affect the constitutional safeguards in place for tribal communities.
(The author is a Professor at Kirori
Mal College, University of Delhi)
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