MUCC, Not UCC. The Goal Should Be A Minimum UCC, With Opt-In, Opt-Out Clauses

There is a lot of push-back from Muslim organisations and political parties on the Centre’s proposal for a uniform civil code (UCC).

Most of the opposition is political, not logical.

However, this may be equally true for Hindus who think UCC is a great idea.

They need to answer a simple question: is their underlying reason for backing UCC simply schadenfreude (“We were forced to reform willy-nilly, now we demand that the same be done to you”), or a genuine concern for gender justice?

Put simply, the support among Hindus seems at least partly driven by the opposition of Muslims, and the opposition of Muslims to UCC stems somewhat from the fact that Hindus seem gung-ho about it. This cannot be good for either community.

Here is a simple proposition to both sides: in a country as diverse as India, regardless of whether you are for gender justice or look at it with suspicion and alarm, it makes sense to allow for communities to reform at varying speeds. 

Also, one must acknowledge that opposition to UCC also stems from community anxieties about identity. This is true not only for Muslims, but Sikhs and some north-eastern communities too.

Is there a way forward from this impasse?

Probably, if the end-goal is not a uniform civil code, but a minimum uniform civil code (MUCC) that will enable a basic level of gender justice to every Indian, while allowing some communities to move faster or slower on reform.

If gender justice is key, what should MUCC contain?

First, it must ban bigamy and instant divorce, but with a specific opt-in clause for those who are willing to go by Sharia or any other community-specific tradition.

This means one-person-one-spouse must be the default norm, but anyone who thinks he (or she) should marry two or more people, would need a specific no-objection from the first spouse.

Similarly, every individual, whether married under a religious ceremony or not, should have the option to move courts based on secular laws.

The opt-in is for those who would like to conform to Sharia or other personal laws, but there ought to be an opt-out for the rest.

Those who want to opt out cannot be tyrannised by the community. Individual choices are the key, and individual rights must be guaranteed, subject only to clearly defined moral and ethical concerns.

There are matrilineal societies, and there are patrilineal ones, and individuals in these societies should be free to declare themselves as not bound by these laws, and they should be given protection under the law.

While ancestral properties cannot be apportioned easily, the opt-outs should be given a minimum share under law. 

Third, one argument trotted out to counter those who want UCC is the tax-related concept of the Hindu undivided family (HUF).

This is an artefact from history, where, at the time of independence, many families were still living in joint households, and businesses were run on the same basis.

A simple way out of this is to grandfather the HUF tax-break, which means those who have already opted for HUF status can retain them, but no future HUFs can be created.

Also those who want to get out of HUFs should be given a one-time opportunity to do so. We did this with long-term capital gains, so why not HUFs?

Fourth, inter-faith marriages should, by default, only be governed by the Special Marriages Act, and standard gender-neutral inheritance and adoption laws.

A niqah is, by definition, not an inter-faith marriage, and so the new MUCC should cover any two people, who followed different faiths before marriage, to be compulsorily treated as covered by the Special Marriages Act.

The law should make it clear that while it recognises religion-based marriages as valid, the individual can, at any stage, opt out of the laws governing those types of marriages.

This will be one answer to the phenomenon now termed as love jihad, where someone from one community misrepresents himself (or herself) as belonging to the same community as the person being wooed, but declares a formal religious affiliation only when it may be too late for the partner to back out. 

Fifth, a MUCC should give the government an opportunity to frame a civil union code as a sub-set, where any two persons, regardless of gender, can be given legal protections, rights and remedies as those available to man-woman marriages.

The Special Marriages Act can be rewritten to include civil unions too, without redefining the traditional idea of marriage itself.

Sixth, MUCC should also replace the religious laws that govern Hindus. If one can respect the identity concerns of so-called minorities, why not Hindus?

The courts cannot play ducks and drakes with Hindu laws in the name of reform, while refusing to entertain demands for reform elsewhere in the name of protecting minority identities. 

India is a nation of minorities, including various Hindu sampradayas and sects, none of which have the scale and size of the Muslim community in India. It is time to give Hindus equal rights once MUCC is framed after consultations with all communities.