When the Indian government’s 22nd Law Commission came out with a notification on June 14 seeking public opinion on a Uniform Civil Code (UCC), the opposition parties immediately saw it as a move to push upfront one of the Bharatiya Janata Party’s three ideological tenets in the run up to the next general elections due in early 2024. The BJP is already done with its two key ideological agendas—constructing a Ram temple in Ayodhya following the Supreme Court order and abrogation of Article 370 ending Jammu and Kashmir’s special status in 2019.
A week after the Law Commission’s notification, the BJP gave the push to the UCC from the highest quarter when Prime Minister Narendra Modi batted strongly for the UCC while interacting with party workers in the central Indian city of Bhopal. This was Modi’s first public push for UCC which is viewed by political watchers as indicative of Modi trying to set the agenda of 2024 Lok Sabha polls.
That Modi’s remarks gained considerable traction is evident from the reaction of most of the opposition parties, including Congress, to Modi’s push for UCC alleging he was “diverting” attention from issues of price rise and unemployment. Congress also said there was no need for bringing UCC at the present juncture but hedged its bet on its need. At present National Conference President Farooq Abdullah of Jammu and Kashmir cautioned against any move to push through with the UCC and asked the government to rethink the consequences of implementing it in a country of people of different races and religions and the fact that Muslims have their own Shariah law. Arvind Kejriwal-led Aam Aadmi Party, however, broke ranks from other opposition parties and declared in-principle support for UCC but said a thorough debate is required and talks with all stakeholders for its implementation. But a week after AAP’s official stand, the party’s chief minister of Punjab state Bhagwant Singh Mann, a Sikh, differed and questioned the need for tampering with faiths as every religion has its own culture and customs. The All India Muslim Personal Board met virtually hours after Modi made the push for UCC to firm up its stand opposing the common code.
To back his pitch for UCC, Modi quoted Article 44 contained in part IV of the Constitution, which is part of Directive Principles of State Policy and which says that the state “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” and the Supreme Court’s support for it.
Just five years ago, the 21st Law Commission had released a consultation paper that said a uniform civil code was “neither necessary nor desirable” at that stage. Its contention then was that the focus of initiatives to reform the personal laws of different religious communities should be the elimination of all forms of discrimination rather than an attempt to bring about uniformity in the laws governing various religions. So, what has changed in the last five years that has prompted a relook at the issue? According to the present Law Commission, years have elapsed since similar views were sought by the previous panel and time has come for eliciting varied opinions. But there is much more to it than that.
The 21st Law Commission’s report on UCC has stressed on non-discrimination over uniformity and recognised that there could be diverse means of governing aspects of personal law such as marriage, divorce, inheritance and adoption instead of imposing a single set of rules on society and ending discrimination, especially against women.
The problem is India does not yet have a draft or model document yet for the UCC although the framers of the Constitution envisaged it to be a uniform set of laws that would replace the distinct personal laws of each religion with regard to matters like marriage, divorce, adoption, and inheritance.
The crucial issue is: does UCC run counter to the freedom of religion, an issue that has been debated from time to time. Can UCC be adopted without offending any religion? The idea of UCC in India has often sparked concerns among sections of the minorities that their religious beliefs, seen as the source of their personal laws, may be affected. An uniform code could be seen as an imposition of majoritarianism.
It was suggested by the 21st Law Commission that introduction of a ‘no-fault’ divorce procedure, allowing dissolution of marriage on the ground of irretrievable breakdown and having common norms for post-divorce division of assets could be debated with particular regard for principles of equality and non-discrimination. It also pointed out that the Muslim community, by and large, seems to be averse to the uniform civil code and wants to preserve its own personal law. Experts point out that personal laws of all religious communities are pro-male.
Experts point out that it is not just Muslim Personal Law but also personal laws of other communities are pro-male. For instance, under Hindu law a woman cannot inherit ancestral property. If she is abandoned by her husband, she cannot claim maintenance from her natal family either. A Hindu woman cannot adopt a child in her own name. The wife of a Hindu cannot be her husband’s coparcener (a person who shares equally with others in the inheritance of an undivided estate or in the rights to it). The Hindu Succession Act debars the female heirs of a Hindu dying intestate from laying any claim to a portion of residence left by the deceased unless the male heirs choose to partition it for determining their share in the property.
The Christian laws on marriage, divorce, maintenance and succession appear to be similar. For example, Section 10A(1) of the Christian Divorce Law makes the separation period of two years mandatory for mutual divorce. In other statutes like the Special Marriage Act, Hindu Marriage Act and Parsi Marriage and Divorce Act, the requirement of separation is one year. Also, the Succession Act, 1925, gives Christian mothers no right in the property of their deceased kids.
Separate personal laws undoubtedly throw up a major challenge to UCC. The BJP governments in Gujarat, Uttarakhand and Madhya Pradesh states ruled by the party have already gone public with their statement of intent to bring state-specific UCC. In fact, Gujarat had announced last year the formation of a committee to implement UCC and In May this year, Uttarakhand announced a committee led by retired Supreme Court judge Justice Ranjana Desai to undertake a similar exercise. Assam, another state where the BJP is in power, has also backed UCC.
Now that Modi himself has led the charge in favour of UCC, it remains to be seen if the government brings a bill in the winter session of parliament for this. The BJP, however, has to grapple with a key challenge in going ahead with UCC: it may risk the votes of tribal communities which have their own sets of personal laws. For instance, Naga Hoho, the influential apex body of various tribes in Nagaland, has opposed UCC. Although UCC has always been a part of the political agenda of BJP and its previous avatar Jan Sangh, no BJP government since that of Atal Bihari Vajpayee has moved to implement it due to a variety of factors including the compulsions of coalition politics.
The Atal Bihari Vajpayee government was critically dependent on parties which did not share its Hindutva ideology. Modi-led BJP also did not initiate any move on the UCC in its two consecutive tenures since 2014. It is only now near the end of the second tenure that the party has raked up the issue, having clear majority in the Lok Sabha. The BJP must be conscious how the Citizenship Amendment Act law divided the country and triggered violent street protests in different regions. The UCC pitch by Modi has already drawn adverse reaction from at least two BJP allies—one in the Meghalaya state and another in Tamil Nadu. The BJP’s former and potential future ally Shiromani Akali Dal in Punjab has also come out against UCC.
The UCC is an issue on which a debate is bound to polarize the society. But does it mean that one should shy away from that debate? If so, for how long? One way out could be, as has been suggested by the 21st Law Commission, is to frame the UCC in terms of gender discrimination envisaged in complex separate personal laws of religious groups. But there is no guarantee that the personal laws would not remain stumbling blocks even in that effort.
The resistance against any change in personal laws is so deeply-entrenched that political parties have opted to prefer the status quo.
Pallab Bhattacharya is a senior journalist