Obstruction Ahead: What The Journey To A Uniform Civil Code May Look Like

In its 2019 Lok Sabha elections manifesto, the Bharatiya Janata Party (BJP) had promised a uniform civil code (UCC) saying that gender equality wouldn't be possible without it. It had also promised that the UCC would be drafted drawing from the best traditions and harmonised with modern times, implying that the UCC would include the best provisions of the different personal laws of different religions.

Recently, Uttarakhand Chief Minister Pushkar Singh Dhami promised that, if re-elected, the BJP government would enact a UCC for the state.

What Is UCC?

The civil code deals with the civil side of law, as opposed to the criminal side. The criminal laws are uniformly applicable to all Indians irrespective of the religion. However, in matters of marriage, divorce, succession, inheritance, etc, different persons are treated differently on the basis of the religion.

For example, under the Hindu Code Bill adopted in 1956, Hindu women are entitled to equal share in their parents' property as the sons (via an amendment in 2005). However, under the Muslim personal law, each daughter is entitled to half of what each son gets.

Notably, while the Hindu personal laws are codified, there has been no such codification of Muslims personal laws, giving more space to the religion and religious leaders to play an important role. While there was a huge controversy when the Hindu Code Bill was introduced by the Jawaharlal Nehru government in 1952 as it violated certain traditional norms, the law has only become more progressive over time.

A uniform civil code would ideally remove all these disparities and incorporate progressive provisions (as most traditional laws are alleged to be unfair to women) based on modern notions of equality, justice, non-discrimination, etc, instead of religious mandates. And, as BJP promised in its 2019 manifesto, the UCC can also incorporate best practices from different personal laws.

Legal Path To UCC

Article 44 in Part IV (Directive Principles of State Policy) of the Constitution directs the state to "endeavour to secure for citizens a uniform civil code throughout the territory of India".

The personal laws are a part of the Concurrent List in the Seventh Schedule. Therefore, under the Constitution, the power to legislate in respect of personal laws rests with both Parliament and the state assemblies. However, if Parliament passes a law on the subject, the state law cannot contravene it (unless it passes a bill that gets presidential assent in that regard).

Currently, different states have different laws and in the matter of civil laws, there is legal diversity (not just religious diversity).

The goal of Constitution makers in putting the personal laws in the concurrent list was to institute a bottom-up process where each state first applies a uniform code to its territory, and subsequently, when the time is right, the union can amalgamate the codes of different states, provide necessary exceptions, and implement a uniform civil code throughout the territory of India.

For Hindus, this process is more or less complete. For example, the Union government can now amend the Hindu Marriage Act entry number 5 in the union list. Since the state exercises more power with regards to personal laws of Hindus as compared to, say, Muslims, the issue remains controversial.

For example, when UPA II introduced Marital Amendment Bill in 2014 which made a divorcing woman entitled to an equal share in the marital assets, including the marital home and ancestral property, one of the criticisms levelled against the bill was that it only applied to Hindu men.

The bill would have created a legal situation where the divorcing Hindu woman would not only get an equal share in the property from her own parents, but also the property that the husband inherited from his parents. Critics argued that since the law didn't institute any timeframe, a woman could walk away from the marriage with half of the husband's property even a few weeks after the marriage. Such provisions would make marriages especially vulnerable to greed.

"If the Government really wants to bring about empowerment of women, let them make it open for all sections of the society. Let them bring a uniform civil code. Why is it only for the Hindus? Is it that only the Hindus are being deprived? If they have the guts, let them do it for Muslims, Christians and everybody," Amartya Talukdar, a member of the NGO Hridaya, was quoted as saying at the time.

Talukdar's comment points to a unique, less talked about problem — that one religious community invariably becomes the subject of 'social experiments' of the state policy, and only one community bears the brunt of the failures of such policy (say, increased breakdown of marriage due to adverse incentives).

The fact that there has been no codification of Muslim personal laws means social reform has to come through piecemeal attempts. The abolition of triple talaq is a case in point. While there had been a demand from the Muslim women for its abolition for a long time, the All India Muslim Personal Law Board didn't take any concrete steps. The abolition came when Parliament passed the law and the Supreme Court of India upheld it (notably, not on the grounds of gender equality but Quranic interpretations, though a (similar) privilege was not extended in, for example, Sabarimala case).

It is a myth that the UCC necessarily means abolition of diversity. A UCC can still uphold diversity. The big change that it would bring is the codification of the laws, sparking a debate on what to change and what to preserve. A similar debate was sparked by the Hindu Code Bill in 1952. It would also give the progressive elements of all communities greater say in defining the legal framework that governs them.

It is also a myth that a UCC would impose demands on non-Hindu communities only. A debate on UCC will also involve discussions on different Hindu provisions such as solemnisation of marriage, satpati, kanyadaan, joint family and tax benefits, absolute testamentary powers etc.

The government can go a different route and instead of starting a discussion on UCC, first constitute specific committees for specific religious communities. For example, a Muslim Law Reforms Committee just like the Hindu Law Reforms Committee formed in 1941.

However, the opposition from the fundamentalist elements would put the whole committee in jeopardy and no progress will likely be made. If the issue is defined in the terms of religion, the fundamentalist elements in the religious community will automatically gain more say. It is also not unreasonable to expect that the committee members will face a threat to their lives for attempting to turn 'god's laws' into laws made/amended by the state. On the other hand, if a committee is appointed to enquire on UCC, it can consult different religious leaders, NGOs, social activists with more freedom.

Therefore, the first real challenge to UCC is not the opposition to 'uniform' as it is made out to be, but 'code'.