Uniform Succession and Inheritance

Case Description

Ashwini Kumar Upadhyay is a lawyer and a BJP politician. He filed five petitions challenging the  laws regarding the age of marriage, succession and inheritance, divorce and maintenance, adoption and guardianship on the grounds that they violate fundamental rights and directive principles in the Constitution. These petitions cumulatively aim to secure a Uniform Civil Code (UCC).

Here we outline the petition filed on September 21st 2020 challenging the laws of succession and inheritance. These subjects are currently governed by various religious personal laws such as the Hindu Succession Act, 1956, the Indian Succession Act, 1925 and the Muslim Personal Law (Shariat) Act, 1937. The petition argues that laws on succession and inheritance discriminate on the basis of religion and gender. For example, under Muslim personal law, upon the death of a parent, a son is usually entitled to double the amount of inheritance in comparison to a daughter. Further, Muslims are not permitted to will away all their property: 2/3rds of it must go to their heirs. However, the Hindu Succession Act, 1956 allows Hindus to voluntarily dispose of all of their property to anyone.

The petitioner argues these laws are against gender justice and equality of religion, guaranteed under Articles 14 and 15. Further, he argues that these laws violate the dignity of women which is constitutionally protected by their Article 21 right to life and liberty. The petition was initially listed before a three-judge bench comprising Chief Justice S.A. Bobde,  Justices A.S. Bopanna and V. Ramasubramanian.

This petition is the most recent attempt to bring a Uniform Civil Code into force through litigation. Article 44 of the Constitution of India, 1950 urges the executive and the legislature ‘to secure for its citizens a uniform civil code throughout the territory of India.’ Article 44 was debated in the Constituent Assembly in 1948. Some critics argued that it would violate religious freedom and personal laws while supporters urged that the UCC would protect women’s rights..

The SC’s verdict in Mohd. Ahmed Khan v Shah Bano reignited the debate over the UCC in 1985.  The Court ruled that all women were entitled to maintenance from their husbands following divorce regardless of religious personal law. The government enacted the Muslim Divorce Act, 1986 which restricted the time period for which divorced Muslim women may ask for maintenance. The All India Muslim Personal Law Board supported the Prime Minister and the Muslim Divorce Act, 1986 as they were concerned about protecting their religious and cultural identity. The Bharatiya Janata Party (BJP), in the Opposition at the time, labeled this ‘populism’ and ‘appeasement’.

The BJP has made the UCC a central aspect of their election manifesto since 1998 (including most recently in 2019). While women’s rights organisations have historically been in favour of the UCC, some activists are increasingly concerned that current efforts are motivated by majoritarian communal politics.