In this final instalment of our series on the UCC, we look at the various arguments put forward by different sides More importantly, what would such a code look like? Do we know and does anyone care—except when there’s an election on the horizon.
Editor’s note: ICYMI, the first part of this series traced the birth of personal laws in colonial India—and the fierce Constituent Assembly debates over them. Part two looked at Nehru’s campaign to reform Hindu laws—while he left Muslim laws untouched. Part three starts with the codification of the Shariat into personal law—and looks at the controversy around the Shah Bano judgement—including Rajiv Gandhi’s response to it.
Researched by: Rachel John & Nirmal Bhansali
First, the feasibility argument
Let’s set aside the obvious point that no uniform civil code should be used as a club against minorities. In 75 years of independence, the strongest counter-argument against the UCC has remained the same: it’s just not possible. And here’s why.
One: The framers of the Constitution never intended a single law to govern all Indians in the matters of marriage, divorce, inheritance etc. They recognised the vast diversity of India and therefore placed personal laws in the Concurrent List—giving both states and the union government power to amend them.
Two: This is also why the Constitution specifically excludes Nagaland, Mizoram and other northeastern states from any parliamentary law that threatens local customs. Prime Minister Narendra Modi’s recent call for a uniform code immediately sparked outrage in these states. And within days, government functionaries declared that they would be outside the purview of the UCC. In other words, the proposed code is already anything but uniform—even before it has been framed.
Three: How can we have a uniform civil code when even our supposedly uniform criminal code varies from one state to another? State governments have made 100 amendments to criminal laws. For example, the rules for anticipatory bail vary from state to state. Another example: states that criminalise the sale of alcohol or beef.
Four: Even the application of personal laws is not uniform. For example, the Shariat Act —aka muslim personal law—has no force in Jammu and Kashmir where Muslims are governed by customary law. Or take the example of Goa Civil Code—which was framed by the Portuguese back in 1867:
[I]t permits a certain form of polygamy for Hindus while the Shariat Act for Muslims has not been extended to Goa with Muslims of the State being governed by Portuguese law as well as Shastric Hindu law. The Code gives certain concessions to Catholics as well. Catholics need not register their marriages and Catholic priests can dissolve marriages performed in church.
Five: Abolishing personal laws will be fiercely resisted not just by the Muslims—but also Sikhs who want to preserve the Sikh Marriage Act. And above all, Hindus would be outraged at any attempt to dissolve the Hindu Undivided Family—which is treated as a ‘person’ and affords all sorts of tax benefits not available to members of other religions.
Six: Framing a uniform code is impossible when different communities can’t even agree on basic concepts like marriage:
What is a marriage, what is a divorce, what is inheritable property….are all so different in each religion that a mandatory uniform civil code will be unacceptable to everyone equally.” For instance, he pointed out that Muslims consider marriage as a contract, which can be terminated under certain rules like all contracts, whereas Hindus and Christians consider it a sacrament or sacred institution which makes it difficult to dissolve.
The gender rights argument
This has always been the strongest case for a uniform code—and has been a recurrent theme from the time of the Constituent Assembly debates. It is in turn closely linked to the fundamental rights of freedom and equality—which are arguably the foundation of democracy.
One: The law should be applicable to every citizen irrespective of their religion. Sure, criminal laws may vary from state to state—but they are not applied differently to Hindus or Muslims or Christians. The same must hold true for laws that govern inheritance, divorce, marriage etc.
Two: Religion is inherently patriarchal—and any law based on it will deny women equality. As Pulapre Balakrishnan puts it:
Personal laws in India are boxed according to the religion or social origins of the citizen. However, it does not take much to see a fearful symmetry between them. This is their unmistakably patriarchal framing, whereby men are privileged at every turn. Thus, only a man can be the ‘karta’ or head of a Hindu Undivided Family, a divorced Muslim woman is not entitled to maintenance beyond a certain period, among some tribes of India, the custom is that women do not inherit ancestral property, and a Parsi woman who marries outside the community is excommunicated. So, from the point of view of women’s empowerment, India’s civil code is uniform already.
Three: Custom or tradition cannot be a reason to deny citizens their right to equality. The caste system is no less a ‘tradition’ but no right-minded person will argue in its favour. Nor is the right to religious freedom a reason to oppose a UCC—because it only signifies “the freedom to adopt the faith of one’s choice.” If the Supreme Court can overturn temple bans on women or Dalits—saying religion cannot infringe on the basic right to equality—why can it not do the same in matters of divorce or inheritance?
Four: As for arguments of diversity, the state’s first duty is not to protect diversity but freedom and equality. For example, when it comes to varying concepts of marriage, Pratap Bhanu Mehta writes:
It is often said… that one reason we cannot have a UCC is because different traditions have different conceptions of marriage: It is, allegedly, a sacrament for Hindus, a contract for Islam. But, for law, the question is not that of the “meaning” of the institution. It is, simply: What interests of the relevant parties should the state protect, enforce or permit? It is the freedom and equality of individuals and the well-being of children affected by these institutions. And these burdens should apply equally.
More simply put, the state is not concerned with what a marriage signifies—but with what rights of citizens are at stake.
Finally, the reformist argument
This line of reasoning stakes out a middle ground—arguing that instead of abolishing personal laws, we should reform them to ensure gender equality. For starters, this is a far more realistic option, according to legal experts:
Practically you can have smaller laws which are uniform which promote gender justice instead of trying to change all the laws together, which is not a practical exercise at all…These small incremental changes are what would be useful instead of having something big which may not be deliverable.
A good example is the Domestic Violence Act—which protects all women regardless of their religion—which “is a uniform civil code in that sense in a particular area.”
Point to note: The 2018 report of the Law Commission tasked with looking into implementing the UCC came to the same conclusion.
A case for gradualism: Supporters point to significant progress made by an incremental approach—or the “progressive gradualism of the Indian system.” For example, the recent Supreme Court ruling declaring triple talaq unconstitutional—which was a result of a long campaign by Muslim women groups. They have also filed petitions challenging practices such as polygamy: “This is not 1986 [Shah Bano judgement], it is 2016, we are Muslim women demanding constitutional rights for ourselves.” But none of them want to abolish personal laws:
These efforts are not about rejecting religious belief, but about social practices that distort the faith says Shaista Amber of the All India Muslim Women's Personal Law Board, set up in 2005. “Sudden divorce over the phone and internet is obviously not religion-sanctioned. But the problem is that even the police used to say oh, this is your personal law, you take it to the jamaat, or they only talk to husbands and brothers" says Sharifa Khanam, who started the Tamil Nadu Women's Jamaat. "We are cheated of constitutional rights and Islamic rights,” she says.
Even Christian and Hindu laws have been reformed in this fashion—gradually giving more rights to women.
Point to note: Some legal experts say even the BJP—which is the staunchest advocate of the UCC—may prefer this piecemeal approach. The government took disproportionate credit for outlawing triple talaq—and polygamy may well be next. The BJP government in Assam has already introduced a bill to ban it.
UCC? What is a UCC?
In an interview with Navika Kumar from Times Now, Kapil Sibal scathingly called out the elephant in the room: no one has a clue as to what a uniform civil code would look like:
In fact, the BJP has not offered any version of a uniform civil code—even though it has been a standard part of the party platform since 1996. This isn’t to say there are no precedents for a uniform code.
The Special Marriage Act: This was introduced in 1954 by Nehru as a first step toward a uniform civil code—alongside reforms of the Hindu law:
The thinking was that if you wanted a liberal, modern, secular and progressive law, let us start the experiment on a voluntary basis. So, those going for an inter-faith marriage, as well as others, could register under the SMA. The effect of the SMA is that once your marriage is registered under it, your religion’s personal laws won’t apply.
The laws of divorce, maintenance and inheritance are far more progressive for couples who marry under the SMA.
But, but, but: The law also imposes a bizarre requirement on couples—requiring them to post a 30-day notice ahead of their wedding:
[W]hile Section 6 mandates such a notice to be published at a ‘conspicuous place’ and allow any person desirous of inspecting such notice to do so at any time. Further, Section 7 allows individuals to raise objections to the marriage within 30 days after the publication of the notice while section 8 empowers the marriage officer to stop the solemnization of such marriage if they uphold the objection.
The rule was originally included to appease conservatives—who wanted to alert parents and give them sufficient time to stop the marriage. Hindutva groups who use the notice to harass and intimidate interfaith couples—to prevent ‘love jihad’—are following that fine tradition. Irony alert:
So despite the prevalence of this Act, conversion and a hasty marriage seems to be the only option for those venturing into marriages of choice against the wishes of their parents, since within a communally-charged atmosphere, the one-month notice period stipulated under the Act may pose a threat to life and limb.
In other words, our one big step toward a UCC has proved to be counter-productive.
Weaponization of the UCC: Nehru and Rajiv Gandhi refused to reform Muslim personal laws—because both assumed all Muslims are traditional and resistant to change. They chose to listen to conservative ulemas—and pretended they represented all Muslims (much like the British). The BJP has taken up this baton in its own Hindu nationalist fashion:
This issue of the UCC has allowed the forces of the Hindu right to attack their political opponents, including the Congress, for being ‘silent’ on the question of the oppression of Muslim women due to catering to a minority ‘vote bank’. Recently, a key RSS organisation said that it would run an awareness campaign for the UCC among Muslims as it would address the backwardness of Muslims.
While one party pretends benevolence and the other is openly hostile, the assumptions they share are startlingly the same. As one Muslim woman activist puts it:
We are cast as traitors to the fold by the AIMPLB [All India Muslim Personal Law Board], whom I consider a mafia rather than religious scholars. Meanwhile, the Hindu right leaps in to save us and talks of rolling back personal laws. Fundamentalists on both sides feed each other.
The bottomline: The reality is that no party is all that invested in a uniform civil code that accords freedom and equality to all its citizens—because that would mean giving women more power. Who needs that?
Reading list
BBC News looks at the convoluted differences between personal laws. Scroll makes a case for gradualism—and interviews experts on the feasibility of a UCC. Alok Prasanna makes the diversity argument against the UCC in the Deccan Herald—while The Hindu points to the absence of any uniformity even within personal laws. Also in The Hindu: Pulapre Balakrishnan makes a strong case for a single law that treats everyone equally. Rehan Mathur in Indian Constitutional Law and Philosophy is very good in decoding the Special Marriage Act. Times of India has a good piece profiling a new generation of Muslim women activists. Outlook has the BJP angle covered. If you want it, here’s the Law Commission report—with the most detailed reading of the personal laws.
