Context:

• The debate on the Uniform Civil Code (UCC) has resurfaced, this time catalysed by judicial observations rather than executive action, despite Article 44 placing it within the Directive Principles of State Policy (DPSP).
• A recent petition before the Supreme Court sought to strike down the Muslim Shariat (Application) Act, 1937, prompting important reflections on personal laws, gender justice, and constitutional equality.

Key Issues in the Current Debate:

• Judicial push vs legislative domain:
  • A three-judge Bench led by the CJI Surya Kant highlighted the need for reform in Muslim Personal Law (MPL).
  • However, concerns arise regarding judicial overreach into a domain reserved for policymaking.
• Equality vs testamentary freedom:
  • Equal succession rights may be undermined by absolute testamentary powers (allowing a person to will away their entire property to anyone he chooses).
  • For example, the Gujarat UCC has been challenged for inconsistencies in inheritance law.
  • Notably, none of the Hindu Succession Act, 1956; the Indian Succession Act, 1925; and the Uttarakhand Uniform Civil Code, 2024, restrict such testamentary freedom.

Muslim Personal Law - Nuanced Realities:

• Protective features in inheritance:
  • Under the Muslim Shariat (Application) Act, 1937, a Muslim cannot will away more than one-third of property, and cannot favour one heir without consent of others.
  • These restrictions may protect women’s inheritance rights better than some “uniform” laws.
• Codified and jurist-made nature: MPL is not merely customary, it is partly codified through legislation (1937 Act), and developed through judicial precedents and scholarly interpretations.

Constitutional and Judicial Dimensions:

• Essential religious practices debate: In Shayara Bano vs Union of India (2017), instant triple talaq was invalidated as it lacked Qur’anic basis.
• However, inheritance rules are Qur’an-based, making reform constitutionally complex.
• The evolving jurisprudence (e.g., Sabarimala review) questions the “essential practices doctrine.”

Gender Justice - A Mixed Picture:

• Gaps in existing laws:
  • The Shariat Act excludes agricultural land, limiting women’s property rights.
  • State land laws (e.g., Uttar Pradesh Revenue Code, 2006), provide partial rights (e.g., to unmarried daughters).
  • Hence, such distinctions violate Article 14 (Right to Equality).
• Progressive aspects of MPL:
  • Marriage is treated as a civil contract, not a sacrament.
  • Key protections are consent of bride mandatory, Mehar (dower) as financial security, and customisable Nikahnama.
  • Similarly, divorce rights are Khula (no-fault divorce for women), and judicial divorce under Dissolution of Muslim Marriages Act, 1939 on grounds like cruelty, desertion, etc.
  • In some respects, MPL appears more women-friendly than certain provisions in Hindu law or even recent UCC models.

Challenges in Implementing UCC:

• One-size-fits-all approach: Uniformity may ignore community-specific safeguards, especially for women.
• Risk of regressive outcomes: Removal of beneficial provisions (e.g., limits on testamentary powers) could harm vulnerable groups.
• Federal and legal complexities: Personal laws intersect with Religious freedoms (Article 25), Equality (Article 14), and legislative competence (Centre vs States).
• Social sensitivities: Perception of UCC as targeting specific communities may hinder consensus.

Way Forward:

• Gradual, piecemeal reform: Instead of a blanket UCC, pursue incremental harmonisation of laws.
• Focus on substantive justice: Prioritise gender justice over mere uniformity. Ensure reforms do not dilute existing protections.
• Adopt Best Practices across laws: Incorporate progressive elements from all personal laws. For example, testamentary restrictions (from MPL), and gender-equal succession (from Hindu law).
• Address structural gaps: Reform land laws to ensure equal rights for women. Remove arbitrary distinctions (e.g., married vs unmarried daughters).
• Build social consensus: Engage stakeholders, religious bodies, and civil society to ensure inclusive reform.

Conclusion:

• The UCC debate must move beyond ideological binaries of uniformity versus diversity.
• A truly effective civil code should be just, inclusive, and gender-sensitive, rather than merely uniform.
• India’s legal evolution has historically involved cross-pollination of ideas across traditions—a process that should guide future reforms.
• The goal must not be legal homogeneity, but substantive equality and dignity for all citizens.