Why the Uniform Civil Code is a red rag

The 21st Law Commission said in 2018 that a uniform civil code was ‘neither necessary nor desirable at this stage’? It had been appointed by the BJP government in 2016, and possibly, with sound reason too, reached the conclusion that a uniform civil code would meet stiff resistance from conservative Hindu groups, perhaps even more than conservative Muslims.

While the commission’s report refers to the complex web of extant customs and practices, even among Hindus, Chart C3 of the 2011 Census, which details marital status by religion and sex, provides a snapshot of this complexity.

As per chart C3, married Hindu women (excluding Sikhs, Buddhists and Jains) outnumber married Hindu men by 4.35 million, which seems to indicate that they are polygamous. How would a uniform civil code deal with them? Or indeed with transgender people, or same-sex or third-gender couples, or with live-in relationships, or single parents, or children of sex workers?

A truly uniform civil code, for all Indian citizens, will have to tangle with—and reconcile—a nightmarish diversity of practices, sanctified by various personal laws. Most of these personal laws are highly prejudicial to the interests of women and other genders.

The rights of women and other genders in ancestral and spousal property, for example. Or provisions relating to maintenance and alimony, or adoption. An enlightened UCC will have to tackle the full panoply of Hindu Acts, too. It will have to either scrap the preferential tax treatment of Hindu Undivided Families (HUFs) or extend similar benefits to all Indian citizens. Easier said than done.

There are also, no doubt, all sorts of vested interests defending the personal laws. Disrupting the status quo means disabling various entrenched interests and self-perpetuating power structures.

There are also legitimate fears that a uniform code is not just about banning polygamy and suchlike—which seems to be the popular (mis)understanding of its raison d’être—but will be the stated rationale to go after institutions like the All India Muslim Personal Law Board and the Waqf Board.

All minority institutions are vulnerable because the code, if and when it comes into being, could also end their grants from the State.

The short FAQ that follows tries to separate facts from the many fictions that abound about the UCC:

What is UCC?: A set of uniform civil laws for all citizens, irrespective of their religion, caste or gender. Its scope will extend to matters such as marriage and divorce, maintenance and alimony, succession and inheritance, the rights of women and other genders in spousal/ ancestral property, adoption and remarriage.

Should it be voluntary?: Dr B.R. Ambedkar had spoken in the Constituent Assembly of the possibility that Parliament would one day make room for a “purely voluntary” UCC. Such a law would make room for enlightened choice without walking the minefield of personal laws. The Special Marriage Act, which sits alongside—but supersedes—the Hindu Marriage Act is a good example of such a voluntary law.

How widespread is polygamy?: The fact that Muslim personal law allows their men to simultaneously have four wives distracts from the wider prevalence of polygamy/ polyandry in India’s tribal communities. Also, less than 1 per cent of Muslims in India are polygamous, and the percentage of polygamous Hindus is, in fact, higher, with many Hindu men maintaining a wife in their village homes and one in the city.

What did the 21st Law Commission say about the UCC?: After processing the 75,378 responses it had received (in 2016) on a questionnaire soliciting popular opinion, the Law Commission came to the conclusion (in 2018) that a uniform civil code was ‘neither necessary nor desirable at this stage’. It advocated gradual reforms in personal laws to ensure equality and to end discriminatory practices.

How can one respond to this BJP bait?

Author Aakar Patel wrote: 'There will be many ways of responding to the BJP on this, from political and civil society opposition to litigation in courts (which will be inevitable)—and all of these are valid.

'But there are two that also merit consideration, particularly for those people who have no strong feelings about the Uniform Civil Code. One would be to say to the BJP: Fine, go ahead with it if you have the votes for it. Show us the draft legislation and get on with it. Let Parliament decide if it is to happen.

'Another would be to say: Fine, this is on your manifesto, but so are economic growth and jobs, so are integrity in Ladakh and safety in Manipur. How does doing this now address the failures and problems in the rest? The likelihood is that the BJP will try neither. It will instead merely talk about it, will stoke it using its stranglehold on the media and will communalise and polarise politics and society around it, as it has successfully done often in the past.'

Patel insists that it is for the nation to determine whether this is an issue that politics and voting should be about.

Too diverse to be uniform

• In the Constituent Assembly, a sub-committee headed by Vallabhbhai Patel decided by five votes to four that a UCC was not within the scope of ‘fundamental rights’.

• Ambedkar took an ambivalent stance, stating that a UCC was desirable but it should remain “purely voluntary” in the initial stages

• The Hindu Code Bill to reform Hindu personal laws faced stiff opposition, and had to be amended and diluted several times before its provisions were carved out into four separate Acts—the Hindu Marriage Act, Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoptions and Maintenance Act (While marriage among close relatives is prohibited by the Hindu Marriage Act of 1955, it is considered auspicious in large swathes of south India.)

• Under the Hindu Succession Act of 1956, daughters were not coparceners (joint heirs) till 2005. Hindu wives are still not coparceners and do not, by right, have an equal share of inheritance

• The Shariat Act was passed in 1937, but is not evenly applicable across different sects of Muslims. It is also not applicable in J&K, and Muslims there continue to be governed by their customary law, which is at variance with the Muslim personal law in the rest of the country

• Many tribal groups in the country, regardless of their religion, follow their own customary laws

• The BJP’s 2019 manifesto and the Uttarakhand UCC committee have disingenuously argued that a uniform code could be formed
by taking the best practices of various religions and tailoring
them for modern times. No specifics, though