Uniform Civil Code Anyone?
By Poonam I Kaushish
In this poll season of freebies galore interspersed with vitriolic hate speeches and venomous tu-tu-mein-mein by BJP and Congress on the assumption that populist hand-outs yield better electoral rewards than reasoned policies, notwithstanding Prime Minister Modi crying halt to free “revadi” culture, the BJP Uttarakand Government in a groundbreaking move is quietly set to roll out the Uniform Civil Code (UCC) a long-debated legal reform genie in a special Assembly session this week granting it legal status.
The Bill aims at uniformity in personal laws, like marriage registration, child custody, divorce, adoption, property rights and inter-State property rights regardless of religious beliefs. Reportedly it gives importance to safeguarding interests of women, children and differently-abled and covers equal rights for daughters living on ancestral properties and gender equality. The State also seeks a ban on polygamy and registration of live-in relationships..
Pertinently, the Code is BJP’s key agenda and Article 44 states: The State shall endeavour to secure for citizens a UCC throughout India. It divests religion from social relations and personal laws related to marriage, inheritance, family, land etc, bypasses contentious issue of reform of existing personal laws based on religion — Hindu Marriage Act (1955), Hindu Succession Act (1956) and Muslim Personal Law Application Act (1937). It would ensure all Indians are treated equally, provide gender equality and help improve women’s condition and tribal communities.
Modi hoots for it. Asserting recently, “You tell me, if there is one law for one person in a home, and another law for another person, can that house function?” No. “So how can a country work with such a hypocritical system? We have to remember that even the Constitution of India talks of common rights.”
Questionably, why now? There are four theories going around in BJP circles. One, it is part of a larger plan for the Saffron Brigade as UCC’s implementation could represent a political breakthrough that advances a narrative of uniformity and reform in law.
Two, Uttarakhand’s UCC is to test political waters on how it will be received and could be the template that Central Government will follow for a pan-India code. The Law Commission has begun consultation on it, given Opposition vehement disagreement on grounds UCC would interfere in religious groups personal laws and right of religious freedom unless religious groups are prepared for change (sic). It is a ‘minority versus majority’ issue and Hindutva Brigade’s policy for Muslims living in India. It would disintegrate the country and hurt its diverse culture, they warn.
Three, in case the Party wins crucial States of Rajasthan, Madhya Pradesh and Chhattisgarh it will roll out UCC in Parliament before general elections 2024, thereby fulfilling it last key agenda, part of its 2019 Lok Sabha election manifesto alongside Ram temple in Ayodhya and abrogation of Article 370 in J&K which have been fulfilled.
Lastly, in the event it loses these crucial States the BJP might still bring UCC to distract attention from its defeat. “In fact, it plans to use the Uttarakhand as a model when developing its UCC Bill that it will eventually introduce”, said a Party leader. As it stands, two other BJP-ruled States Gujarat and Assam too might roll the Code out soon. While, Haryana, UP and Maharashtra wait in queue.
However, this is easier said than done due to the country’s diversity and religious laws, which not only differ sect-wise, but also by community, caste and region. Already, the All India Muslim Personal Law Board has expressed reservations, stating India has a multi-cultural and multi-religious society and each group has the Constitutional right to maintain its identity. Adding, the UCC is a threat to India’s diversity and encroachment on their rights to religious freedom which will disregard their traditions, imposing rules influenced by the majority religious community.
Besides, not a few argue it violates Constitutional freedom to practice religion of choice which allows communities to follow their respective personal laws. For example, Article 25 gives every religious group the right to manage its own affairs and Article 29 the right to conserve their distinct culture. Also, the Constituent Assembly’s Fundamental Rights sub-committee deliberately did not include UCC as a Fundamental Right.
Some are wary UCC will impose a Hinduised code for all communities as it could include provisions regarding personal issues like marriage that are in line with Hindu customs but will legally force other communities to follow the same.
Legal experts are divided on whether a State has the power to bring about UCC. Some assert as issues like marriage, divorce, inheritance and property rights come under the Concurrent List, 52 subjects on which laws can be made by both Centre and States, State Governments have the power to impose it.
A similar concern is voiced by tribal groups like Rashtriya Adivasi Ekta Parishad, which approached Supreme Court 2016 seeking protection of their customs and religious practices from a potential UCC. In Nagaland’s tribal territories existing customary laws have primacy over federal laws with respect to personal issues like marriage, land ownership, etc.
Goa is the only State which has a UCC regardless of religion, gender, caste. It has a common family law whereby all Hindus, Muslims and Christians are bound with the same law related to marriage, divorce, succession. When Goa became a Union Territory in 1961, Parliament authorized the Portuguese civil code of 1867 be amended and repealed by the competent legislature.
Certainly the path to UCC is sensitive and difficult but it must be taken. A beginning has to be made if the Constitution is to have any meaning. Discrimination cannot be justified on the grounds of traditions and customs. To establish equality the law that regulates population of a country should also be one.
Where do we go from here? Time for consensus among people which addresses their misgivings and concerns before the Code can be enacted. Said a senior Minister, “There is need to tackle “delusions” that some have “encouraged” that UCC is against rituals and core practices of any religion. It is a scientific and modern way of achieving goals of gender justice by removing disparate loyalties in laws which have conflicting ideologies.”
A common civil code will help the cause of national integration by removing desperate loyalties to laws, which have conflicting ideologies. A way forward is to follow Balasaheb Ambedkar who advocated “optional” common civil code. Whereby, Parliament in the initial stage makes a provision of the Code being purely voluntary.
What next? Ultimately, no community should be allowed to veto or block progressive legislation. Especially, if it is voluntary and does not seek to impose any view or way of life on any one arbitrarily. Time now to reject different laws for different communities, implement Article 44 and reform India.
One cannot progress riding on past’s wheels. India needs uniform laws and should figure what is satisfactory to all groups. Criminal and commercial laws are basic, so there is little purpose behind common laws to appear as something else. It just partitions Indians on the premise of religion that should not happen in the 21st century. It is beyond endurance of sensitive minds to allow injustice to be suffered when it is so palpable. What gives? — INFA