The Hidden Agenda: Not So 'Uniform' Civil Code

Why are the most vociferous advocates and supporters of a Uniform Civil Code (UCC) in India so unmindful of the very first word of that undetermined code? Why this single-minded focus on re-engineering the Muslim Personal Law—and its provisions on marriage and what it sanctions?

The bigoted reasons for this are hidden in plain sight, but here is a sobering fact to consider for perspective: the NFHS (National Family Health Survey) 2019 puts the incidence of polygamy among Hindus at 1.3 per cent against 1.9 per cent among Muslims. Polygamy is not endemic to Muslims, but who needs facts when lies will serve better?

All the people arrayed today in favour of the UCC seem to be asking why Muslims alone should have the right to marry more than once but not Hindus. But even Kirodi Lal Meena, the BJP member of Parliament who moved a private member’s bill on December 9 admitted to this writer that he could take two wives by virtue of being from a Scheduled Tribe. Meena, of course, was trying to make the case that the UCC, with its insistence on monogamy, would mean justice for women.

The Directive Principles of State Policy in the Indian Constitution lay down that the states should endeavour to secure for citizens a uniform civil code. The UCC was hotly debated in the Constituent Assembly and the majority was in favour of such a code. But there was also a broad consensus that it should not be included in the section on ‘fundamental rights’ but rather left to the states to determine the contours of the Code.

This was partly because of the situation prevailing in the country post-Independence and partly because the Constituent Assembly agreed that the demand for reform must come from within the community.

It’s germane to remember that while the UCC has been a longstanding feature of the ruling party’s manifesto, the BJP government thought it politically expedient to introduce it as a private member’s bill. What’s the calculus? The government is no doubt keenly aware of the complexities, the ways in which the Code might impinge on various personal laws—not excluding Hindu personal laws and the diverse set of practices in India’s larger Hindu fold that may be impossible to reconcile with a common code.

A private member’s bill puts some distance between the party and the initiative, which might come in handy if the issue were to turn into a political hot potato. Meanwhile, it will keep the communal pot boiling while allowing the BJP to test the reaction in the states—and be a readymade issue (like the Ram mandir earlier) with which to amp up the polarising Hindu-Muslim rhetoric ahead of the next general elections in 2024.

The electoral stakes are high even outside the Hindu fold. A UCC, which will codify marriages, divorce, maintenance, alimony and inheritance, among other things, will also collide with the provisions of Christian and Parsi personal laws, Sikh and Jain practices, and the customary laws and rituals of tribals.

It will also ricochet off practices among sections of Hindus where, for example, marriages are allowed between first cousins or between uncles and nieces. It will be further complicated by the growing numbers of inter-faith marriages, live-in relationships, single parents and unwed mothers. Same-sex marriages and the issue of adoption will also have to be accounted for.

Several BJP-ruled states, such as Gujarat, Himachal Pradesh, Uttarakhand and Uttar Pradesh, have expressed their intent to form committees to explore a uniform civil code. The bill introduced and passed in the Rajya Sabha also seeks to ‘provide for the constitution of a National Inspection and Investigation Committee for [the] preparation of [a] Uniform Civil Code and its implementation throughout the territory of India and for matters connected therewith or incidental thereto.’

While it is rare for a private member’s bill to turn into law, now that it has been introduced in the House, it will have legislative momentum. It might be put to vote at a time that suits the ruling BJP. What follows here is an attempt to understand the complications and the stakes through some questions that seem to have become leitmotifs in the UCC debate.

Why didn’t the government move the bill? Why did it make a BJP member introduce it as a private member’s bill?

Union law minister Kiren Rijiju has said in Parliament that the government had no plans to set up a panel to implement the UCC and would place the issue before the 22nd Law Commission of India. This is baffling because the 21st Law Commission had concluded that such a code was “neither necessary nor desirable at this stage” in the country.

Moreover, although the Union Cabinet approved the constitution of the 22nd Law Commission in February 2020, its chairperson and members are yet to be appointed, though its term is due to end in 2023. More importantly, what has changed so drastically in favour of the UCC now?

Does the Uniform Civil Code exist even as a draft?

There is no draft for the Uniform Civil Code. Part IV of the Constitution outlines the Directive Principles of State Policy, which, while not enforceable or justiciable in a court of law, serves as a moral compass or governing principles, and it was decided that under Article 44, the State shall endeavour to secure a UCC for all citizens.

In 1955-56, Parliament passed a series of Acts to reform legal practices governing Hindus within the ambit of the Hindu Personal Law, despite stiff opposition. The demand for reforms in Muslim Personal Law were set aside at the time, on the basis of a tacit understanding that the Muslim community must take the lead in initiating these reforms.

Isn’t the Special Marriage Act (1954) a step towards the UCC?

A. Faizur Rahman, secretary general, Islamic Forum for the Promotion of Moderate Thought, says “in so far as marriages are concerned, the Special Marriage Act which allows interfaith couples to marry is the UCC as envisioned by the constitution framers.” In many ways, it is a rejection of personal laws governing marriage.

But several provisions of the Act have been weaponised by right-wing groups. Under the Act, couples must give 30-day notice, a copy of which is to be displayed in the office of the district magistrate. While this was done in the interest of transparency it has become a tool under the BJP government for people to protest such marriages once they come into the public domain.

What are the possible legal/ constitutional challenges to a UCC?

A UCC that aligns with the original intention for such a Code will set the ground for a common legal framework governing all citizens, irrespective of their religion, caste, sex/ sexual orientation or any other identity. So, here is the first hurdle. What happens to the two constitutional guarantees that provide for equality and equal treatment under Article 14 and Article 15 of the Fundamental Rights, as well as the guarantee of religious freedom to citizens under Articles 25-28? With no blueprint for a UCC, these questions stare us in the face.

How does the proposed UCC level with the Freedom of Religion in the context of India as a secular country?

Nothing demonstrates the dilemma better than the recent Supreme Court split verdict on the right of school girls wearing their hijab in Karnataka—bringing the discussion back on the constitutional idea of choice given to the citizens of the country and the desire for uniformity that Article 44 envisages.

Those who were for the Hijab argued for the freedom of choice to Muslim women. Whereas, as it has been pointed out by lawyers, judges ruled in favour of uniformity of the uniform that schools seek to establish. But the dilemma refuses to go.

A UCC is premised on the belief that such a code should be divorced from religious beliefs and practices—a choice given in the Constitution under Fundamental Rights. Such a code will, by definition, be secular. Where will the freedom to practise and profess religion go in the event of such a code?

As has been pointed out by Nivedita Menon in her column in the Outlook magazine, a PIL on female genital mutilation in the Bohra community is being opposed on the ground that it is an ancient and religious practice. When a constitutional freedom is pitted against the freedom of religious practice, what shall be the outcome? When the BJP opposed the entry of women to Sabarimala temple, it was again about the right to religion.

Is ‘Hindu’ a monolithic community?

Several academics and scholars have pointed out the complexities in the Hindu community which need to be resolved first, if such an exercise is to be undertaken. Hindu marriage is a sacrament as opposed to a contract in Islam. Also, for a marriage to be valid under Hindu law it has to be solemnised in accordance with the customary rites and ceremonies of at least one of the parties.

Talking of marriage alone, under the Hindu Marriage Act, 1955, marriages may be solemnised in accordance with the rites and ceremonies who are Hindus by definition. Which marriage ceremony will prevail and what will be incorporated in the UCC? Marriages amongst close relatives are prohibited by the Hindu Marriage Act of 1955 while in South India, the marriages of uncles/nieces, cousins are not frowned upon. Besides, many tribal groups in the country, regardless of their religion, follow their own customary laws.

If best practices need to be incorporated in the UCC, can all marriages be a form of civil contract? Can the practice of Kanyadan (giving away one’s daughter in marriage to another family), be done away with? Activist Lawyer Flavia Agnes suggests the practice should go.

Can ‘mehr’ (an amount fixed at the time of nikah that a Muslim man pays to his bride) over which a woman has more agency, be incorporated in the UCC instead? And as it has been pointed out by several scholars, Hindu men are polygamous too despite it being banned by the Hindu Marriage Act—leaving the women with no protection under the law whereas under Sharia, the women have to be looked after.

Again, as pointed out by the experts, tax benefits for the Hindu Undivided Family (HUF), is there by law. Can the UCC remove HUF? Hindu is not a monolith. Even after the Hindu Code Bill was adopted, personal customs and traditions have persisted making the exercise of bringing them under roof an impossible exercise.

Can a private member’s bill become law?

Private member’s bills are introduced by MPs from across party lines. A look at the bills moved by Meena on the Rajya Sabha website demonstrates his determination towards this direction. Meena’s bill will become law if it gets passed in both the houses. Only 14 private member bills have been passed by both the Houses since 1952, according to PRS Legislative Research. MP Meena is confident that the bill moved by him will wind its way to the President.