인도 단일민법에 관한 헌법적 고찰

The Government of India has recently asked Law Commission of India to seek public opinion on the enactment of Uniform Civil Code(UCC) and analyzed whether or not it can be implemented. Through this legal survey, the enactment of Uniform Civil Code or the reform of the religious personal law has been discussed as a far-reaching consequence affecting the whole Indian society. Considering the political and religious context of India, the enactment of Uniform Civil Code has always been controversial, but this legal survey is an important attempt to enact the Uniform Civil Code that applies equally to all civilians irrespective of their religion. As things stand now, the religion based personal laws are different for Hindus and Muslims. The personal laws deal with areas such as property, succession and inheritance, and divorce and marriage. At the time of instauration of the Indian Constitution, the founding Fathers intended to incorporate the provision of Uniform civil Code for all citizens of India. Reflecting this intention, the Article 44 of the Constitution of India, which stated the duty of requires the State to strive to secure a Common Civil Code for its citizens irrespective of their varied religions, provides that “the states shall endeavor to secure for the citizens a uniform civil code throughout the territory for India.” In the recent years, the Uniform Civil Code has begun to be recognized as institutional framework for social equality and justice. Nevertheless the 70 years have passed since the Constitution came into force, this controversial issue over the Uniform Civil Code is gaining momentum in the contemporary era. And Supreme Court also suggests judicial decisions on the implementation of the uniform civil code in few cases. Hence, this paper analyzes the legal validity of the Uniform Civil Code in the Indian Constitution. Firstly, this paper attempts to re-examine the background of the incorporation of the Constitutional provisions on the Uniform Civil Code and the necessity and validity of the Uniform Civil Code based on the Constitution through the Constitutional provisions and judicial precedents. In addition, in order to examine the possibility of enactment and implementation of the Uniform Civil Code, the constitutional provisions on the Uniform Civil Code classify into the provisions of Fundamental right, the Directive Principles of State policy and the Fundamental Duty and examine the feasibility of enactment of the Uniform Civil Code by checking the conflicts in legal relations.