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Law Commission’s Questionnaire on the Uniform Civil Code: A Critique

Law Commission’s Questionnaire on the Uniform Civil Code: A Critique

The questionnaire released by the Law Commission of India to initiate a debate on the uniform civil code (UCC) is problematic on various fronts. The aim of the questionnaire, as stated by the law commission, is to seek opinion of the public about ways in which family law reforms can be introduced in an integrative manner, so as to not compromise the diversity and plurality of India’s social fabric. In our opinion, the questionnaire has failed to achieve this objective. First of all, the framework of the questionnaire itself is problematic as it assumes that we need a UCC. It also seems to have assumed that gender equality is dependent on the presence/absence of laws/codification/UCC merely and not dependent on actual content of these laws. The way the questions and the options have been framed, limits the scope of the answers. A simple yes or no answer to a question negates various other factors upon which the answers may depend.

The focus of the questionnaire is on specific practices of certain religions, even though the appeal states that family laws of all religions have been focused upon. There seems to be a populist skimming, where popular practices such as bigamy, triple talaq have been highlighted. The questionnaire also seems to be an attack on minorities, focusing on certain contentious practices of the  Muslim community, completely ignoring the contentious practices of other religions, such as the concept of the hindu undivided family and coparcenary property among the Hindus.  Further, the questions do not deal with any of these practices in detail. The options provided as answers to the questions, and some of the questions themselves, ignore the consequences that will follow. For instance, the question about banning of polygamy, does not address the consequences that will arise if this practice is actually banned, i.e. the concerns about the rights of the wives and the children born out of these marriages. Another instance is the question on compulsory registration of marriages, where concerns about the validity of a marriage that has not been registered and rights of the children born out of these marriages, have not been addressed. At various places, assumptions have been made that a UCC will lead to gender-justice and better realization of rights without there being a working draft.

The questionnaire also makes certain assumptions about various current practices. For instance, the question about Hindu women’s right to property assumes that the current law is perfect and the prevailing customary practices prevent them from claiming their rights, while in fact, the law on this issue and its interpretation itself are problematic. This is also the only question pertaining to Hindu law and the questionnaire seems to have assumed that the Hindu family laws are otherwise perfect and need no reform. What is problematic is also that Question 8 which pertains to reform in Hindu Law , provides as an option which states that ‘Legal provisions will not help in what is primarily a cultural practice, steps have to be taken to sensitize the society instead’. It appears as if the comission assumes that only the Hindu Community is capable of sensitization and hence there is no need to change customary law, bu for all other communities, such internal reform is not possible.

Some questions have also ignored the current framework of law, such as the question on banning/regulation of polygamy, polyandry and maitri-karar. The question and the options have ignored criminal law framework on these issues. The maitri-karar contracts are not even legally enforceable in India and hence, we fail to see exactly what is sought to be banned here.

The question about protection of couples of who enter into inter-religion and inter-caste marriages seems to be misplaced. This question is in no way related to the family law reforms or formulation of a UCC. This is an issue that needs to be addressed, and to an extent, is also addressed, in the criminal law framework of the country.

The questionnaire also seems to be narrowing its scope to religion as the basis of different personal laws. Additionally, while the appeal says this is about the UCC and trhe reform of personal laws, most of the questions are only about the UCC. In this process other factors such as case, tribal identity, geography etc. has been ignored. The Law Commission is also, regrettably, silent on the rights of sexual minorities.

Thus the entire questionnaire is problematic – the methodology, questions and the process of seeking inputs. This questionnaire needs to be withdrawn.

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