Dividing with a Uniform Civil Code

Uttarakhand chief minister Pushkar Singh Dhami’s announcement that a uniform civil code (UCC) will be introduced soon in a specially convened session of the Vidhan Sabha has already half-achieved its objective—to keep the communal pot boiling and to roil the Muslim community.

The task of preparing a UCC for Uttarakhand was assigned to a five-member panel headed by Justice Ranjana Desai (retd), one of the government’s ‘favourite’ Supreme Court justices who had earlier headed the J&K Delimitation Commission. The panel claims to have put together the draft based on 143 public consultations across the state and 2.3 lakh written submissions from the public.

Dhami has not yet released the draft, but it’s learnt from reliable sources that the panel has submitted it to the state government. Since it’s not yet been made public, it’s hard to say definitively whether or not it addresses the concerns of citizens who attended the public hearings and asked questions of Desai.

Constitutional expert and advocate Sanjay Hegde remains sceptical: “We already have civil codes that cover the Hindu marriage, divorce, maintenance, etc., but these are central laws. How can states override central legislation?”

At present, central laws regulate marriage, divorce, succession, inheritance and taxation in India. They apply across the country and are not state-specific. Conflicts can obviously arise if a law introduced in a state contradicts central legislation.

Therefore, even if Uttarakhand does legislate a UCC, if it contradicts a central law, it will have to seek presidential approval—which means the Centre’s approval. Also, asks Hegde: “If a couple marries in Nainital and lives in Delhi, which law will they be expected to follow?”

This point was also raised by several members of the public who attended these hearings. Dehradun-based lawyer Razia Baig, who was earlier a member of the Uttarakhand Minority Commission, said, “We asked the same question of the Desai-headed committee. A UCC means a common code across the country. Where does a UCC say it is specific to only one state? This goes against the Directive Principles of the Constitution.”

S.M.A. Kazmi, writer and journalist, maintains personal law reforms must not be imposed on any community. He also points out the flaw in the ‘problem statement’ it supposedly tries to fix, that of a rise in ‘love jihad’ cases: “Any survey in Uttarakhand will clearly show that Muslim women, educated and otherwise, prefer to marry Hindu men and not the reverse. The reason is that our community is facing both economic and social deprivation.”

Historian Mridula Mukherjee believes the Desai-led committee will in all probability outlaw bigamy and not tinker with too many of the other existing central laws. “The Muslim community will find it difficult to oppose this although no proof exists of there being a link between bigamy and more children,” says Mukherjee. “But this fear that each Muslim man has four wives and 24 children is being fed into the general population so that the BJP can reap its benefits in the coming Lok Sabha elections.”

The recent National Family Health Survey has highlighted that Muslim fertility rates are falling the fastest among all religious groups in India, and the community accounts for only 14 per cent of the national population versus the 80 per cent share of Hindus.

Whatever the proposed draft says, the enactment will be more complicated. “If we want uniformity in all aspects of civil life, we will have to amend the income tax rules. It would be interesting to see how a state-based UCC deals with the Hindu Undivided Family (HUF) defined in the Income Tax Act, for instance,” says Hegde. HUFs are treated as separate and distinct units of taxation under the Income Tax Act of 1961, and face a lower rate of tax liability than individuals.

Then there are the marriage laws. If the Hindu Marriage Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, the Special Marriage Act, 1954, the Shariat Act, 1937, and various other central laws theoretically cease to operate (or are superseded) in Uttarakhand, the state government will have to find a new legal system to regulate and adjudicate all these crucial aspects of civil life for those married and inheriting under the existing central laws.

Further, though the argument for a UCC relies heavily on laws that disadvantage women, the UCC will not favour women nor help improve their status because it is not meant to be gender-specific.

In 1955–56, the Hindu Code Bill was split into three major acts—the Hindu Marriage Act, the Hindu Succession Act and the Hindu Adoptions and Maintenance Act. The basic argument from the current regime that underpins the campaign for a UCC is that if these legislations were imposed on the Hindus in the 1950s, a similar common code must now be imposed on Muslims.

Rebecca John, a senior advocate at the Supreme Court, points out the biggest flaw in this thinking: there are multiple social, cultural and religious practices within religions, and no community would wish to be subsumed under the writ of another group.

For example, John points out, the saptapadi ritual is paramount in North Indian and East Indian weddings, wherein a marriage is deemed complete and binding once the couple has taken that number of steps/turns around a ritual fire. However, in South India, suyamariyadhai and seerthiruththa rituals are privileged, where the marriage is valid once a couple declares they are getting married, once they have exchanged garlands or rings, or once the bridegroom has tied a thali around the neck of the bride.

Similarly, marriage takes a contractual form in Muslim law, with different practices for Shia and Sunni communities. How does a uniform code propose to preserve or address all the possibilities? If it cannot, this implies none of the rituals should ideally be recognised as marriage.

Uttarakhand Congress leader Sujata Paul believes the state government is raising the UCC to create a ‘bogeyman’. “A right-wing agenda dictated by the RSS is being pushed in Uttarakhand, which had no history of communalisation, especially since the Muslim population in the hilly areas has been very marginal,” she says.

The Christian community in the state is also apprehensive, as many believe the anti-conversion law that has been introduced in several states directly targets Christians as well. John Dayal, writer and former president of the All India Catholic Union, points out that “a UCC is not a state subject, and this is an issue which is still under consideration with the law commissions”.

“As a Christian, the Constitution provides me with a guarantee to both practise and propagate my religion. What affects me is the erosion to propagating my religion, and this is true of all religions in India,” said Dayal.

The tribal communities, though small in number in Uttarakhand, are also fearful of a UCC robbing them of their rights to freedom of religion and culture— some practise polyandry. The Sikhs in the state, though largely following the Hindu personal laws, are also apprehensive because some of them marry under a separate, community-specific law.