Not practical to have a Uniform Civil Code; BJP brings it up just for optics, say legal luminaries

Soon after the swearing-in of Chief Minister Pushkar Singh Dhami, the Uttarakhand government announced that it would set up an expert panel to prepare a draft Uniform Civil Code (UCC) for the state. However, senior Supreme Court lawyers remarked that the announcement was just meant for hashtags on social media.

Subjects such as marriage, inheritance, adoption and succession are governed according to the personal laws of the various religious communities. So, all communities have their own set of personal laws. Most of these subjects, in addition to joint family taxation and transfer of property are under the Concurrent list, which means both the Centre and State can enact laws.

However, law experts have underlined that several of the personal laws are under the Centre, so a state law cannot override the Central law unless it gets Presidential assent.

In 2018, the Law Commission of India had stated that a Uniform Civil Code (UCC) was not necessary for the country, and instead suggested amendments to the existing family laws to address discrimination and inequality in personal laws.

Questioning the Uttarakhand CM’s announcement, senior Supreme Court lawyer Sanjay Hegde pointed out that there are common central legislations dealing with marriage, adoption and inheritance when it comes to separate communities.

“How does Uttarakhand propose to have a legislation which will in effect cancel the Centre’s legislation and let the state sponsor its own? A state can come up with a Uniform Civil Code only if the state legislation is then reserved for Presidential assent and if the President gives assent to that legislation. Then it will prevail in that state,” explained Hegde.

Hegde said this would mean that Uttarakhand government will have to say that Hindu Marriage Act, New Maintenance Act and the Special Adoption Act, the Shariat Act and the Special Marriages Act -- in fact all the matters dealing with civil life -- will cease to operate in Uttarakhand.

The state will also have to underscore that in case of ambiguity, the Uttarakhand law will have to prevail. Uttarakhand will have to pass comprehensive legislation on marriages, adoption, inheritance and taxation. Currently, there is no legislation or draft with states regarding Uniform Civil Code, remarked Hegde.

“It would be interesting to see how a state based 'uniform civil code' deals with the idea of the 'Hindu Undivided Family' as defined in the Income Tax Act and its separate tax treatment and reduced tax liability. How would state uniform civil codes address such taxation, or would it just ignore it, focusing instead on other easier forms of establishing national unity like homogenous marriages and divorces, and staying well away from revenue and equitable spending practices?” asked Supreme Court lawyer Shahrukh Alam.

The UCC is imagined in juxtaposition to Muslim personal law, underlined Alam. By all parties concerned. There is no discussion on the impact it would have on Hindu personal law; the imagination of the UCC has not moved beyond a 'teaser' directed at Muslims, who for their part get appropriately riled each time.

"It would be useful to start a debate with first an idea as to what is being proposed and how? What is the statement of object? Is it once again only to rescue 'Muslim women', those with no apparent agency, or would state largesse extend beyond them and think about other inequities? Is the establishment of 'uniformity' only vis a vis religions, and not regions, for instance, since we see certain states anxious to bring it in," pointed out Alam.

BJP governments can say whatever they want to say, but ultimately there are central legislations on all these points, maintained Hegde. As such, there is bound to be conflict.

“And unless the state legislations are approved by the Centre, it cannot prevail. Are they going to substitute all these different laws with one comprehensive legislation and then say that the Central legislation does not prevail within their state? I would say that a state trying to do this is riddled with problems,” added Hegde.

Nobody knows anything about UCC, nor has there been any public consultation of what the UCC will look like. “Without specific details of what the Uttarakhand CM meant, it is difficult or impossible to comment on this. This is just politics. There are no skeletal details of Uniform Civil Code. There is nothing on which areas it will address. Will it be contrary to what already exists?” questioned Rajeev Dhavan, senior Supreme Court lawyer.

Several people have argued that Goa has a common civil code. Goa had been following the Portuguese Civil Code, 1867. After the Portuguese rule, the code survived by virtue of Section 5(1) of the Goa, Daman, and Diu Administration Act, 1962. This means that the Hindu Marriage Act, 1955 and Hindu Succession Act, 1956 or Indian Succession Act, 1925 or Shariat (Application) Act, 1937, cannot be enforced in the state.

However, Goa’s Civil Code is not uniform as believed to be. The Shariat Act has not been extended to Goa and Muslims are governed by the Code and the Hindu Marriage Act, which also means that marriages cannot be annulled on the grounds of religion. There is a difference in the registration of Catholic and non-Catholic marriages in the state.

Article 3 of the Decree of Gentile Hindu Usages and Customs of Goa, 1880, states that a Hindu husband can have a second wife in the absence of a child. This is in contradiction to both the Hindu Marriage Act and Indian Penal Code. The Goa civil code allows for pre-nuptial contracts in four different formats. The Goa Code prohibits making a will for more than 50% of the assets, but the Hindu Succession Act allows all of the assets to be disposed off through a will.

Pointing out the differences in the Goa civil code, both Alam and Hegde emphasised that it cannot be described as a Uniform Civil Code in all matters. It has uniformity in certain aspects of civil life, but not all. Goa has a specific history, so the code there cannot be applied to the entire country.

BJP is incapable of thinking beyond slogans and hashtags, added Hegde, “so it’s anyone’s guess what will be included in UCC”.

Since it's imagined in juxtaposition to Muslim personal law, the issue of the UCC being in constant news, without any analysis as to what it entails, only serves to cause trauma to the Muslim community, explained Alam. It's perceived as yet another attack on religious and cultural practices and in that psychological sense, it's very useful to keep the issue boiling.