In July, the Delhi High Court made a strong pitch for a uniform civil code. “The hope expressed in Article 44 of the Constitution that the state shall secure for its citizens Uniform Civil Code ought not to remain a mere hope,” the court said. It recalled that the Supreme Court in 1985 directed that the “judgment in Ms Jordon Diengdeh be placed before the Ministry of Law to take appropriate steps”. “However, more than three decades have passed since then and it is unclear as to what steps have been taken in this regard till date,” the High Court nench of Justice Prathiba M. Singh observed while hearing a petition questioning the applicability of the Hindu Marriage Act, 1955, with respect to a couple belonging to the Meena community.
The MsJordon Diengdeh verdict delivered by Justice O. Chinappa Reddy involved the marriage of a Christian tribal woman with a Sikh man. The lady sought a divorce under the Indian Divorce Act, 1869, following her husband’s inability to fulfil his matrimonial obligations. The marriage had been solemnised under Christian law and followed Christian rituals. Finding that it was not possible to give a verdict under the Christian law, the judge talked of the urgent need for a uniform civil code.
The Delhi High Court’s words brought the focus back on a uniform civil code—not that the Hindutva brigade has ever let it rest. It has been on the Bharatiya Janata Party’s (BJP) agenda for 30 years. Every time the demand is made, however, the discourse is carried out in a manner aimed at polarising society; there is never any dispassionate discussion. The party has never presented any draft of a model code to be enshrined in the proposed law. Just rhetoric and platitudes about Article 44 of the Constitution, which lays down that the state shall endeavour to secure a uniform civil code throughout the territory of India. From Union Home Minister Amit Shah and Uttar Pradesh Chief Minister Adityanath to Pragya Thakur and Nitin Gadkari, all have spoken about the desirability of a uniform civil code but talked in generalities without specific suggestions. The idea is to stoke the embers, not light the way ahead.
Last year, Shah reminded the media that the promise of a uniform civil code was part of the BJP’s manifesto, just like the construction of a Ram temple in Ayodhya and abolition of Article 370 were. Adityanath did not shy away from echoing the view. Just as the establishment of a Ram temple and the scrapping of Article 370 had been accomplished, a uniform civil code would also come about in due course, he reportedly said. The “due course”, it seems, is the run-up to the Uttar Pradesh Assembly election scheduled for March next year. BJP legislators in the State take every opportunity to talk of a uniform civil code.
A uniform civil code should guarantee a common law for all Indian citizens, irrespective of region, religion or caste. Paradoxically, the demand for this comes largely from those who recently framed laws against so-called “love jehad”, as inter-religion marriages are dubbed. Incidentally, the campaign against “love jehad” is not just a tool of Hindutva against the non-Hindu “other” but a weapon to browbeat women and take away their agency and the right to exercise choice. The campaign reduces women to mere child-bearing machines and traduces them as gullible and devoid of decision-making ability. How compatible will love jehad laws be with the proposed uniform civil code?
Pertinently, no BJP leader has clarified what a uniform law will mean. Will it ensure justice to all women, irrespective of faith? Will polygamy be declared illegal? Will it lead to abolition of the Hindu Undivided Family, a legal institution that gives tax benefits only to Hindus, as the legal activist Flavia Agnes asked in 2016? In the absence of any clear discourse on the issue, all talk of a uniform civil code amounts to mere furthering of the Rashtriya Swayamsewak Sangh (RSS) agenda of a Hindu Rashtra, with the expression “uniform law” amenable to being used as a euphemism for “Hindu law”.
For the Sangh Parivar and its political affiliates, a uniform civil code has little to do with gender justice. It is a handle to polarise society and browbeat the beleaguered minorities, particularly Muslims, who are projected as the sole hurdle to uniformity with their Sharia-based personal laws. BJP leaders raise the demand before any major election. Before the 2017 U.P. Assembly election, too, similar demands were raised. In 2016, the then Law Minister, D.V. Sadananda Gowda had said, “Time and again, both inside and outside Parliament, people have been talking about the Common Civil Code. There are thousands of personal laws in India and all communities, all States, we want to take everybody into confidence and then only we can go ahead...we have sent a request to Law Commission.” The request has been put in cold storage.
In 2014, Adityanath, then a member of Parliament from Gorakhpur, raised the issue in Parliament, stating: “India is a secular country and there couldn’t be different laws for members of different communities. There is a need for amendment to implement the uniform civil code.”
Political discourse on the uniform civil code promotes the myth that while the minorities in general, and Muslims in particular, are in the way of achieving one civil law for the country, the majority community has happily acquiesced in it. More than 25 years ago, in the Sarla Mudgal case (1995), relating to bigamy following a change of religion, Justice Kuldip Singh in the Supreme Court had observed: “Those who preferred to remain in India after Partition fully knew that the Indian leaders did not believe in two-nation or three-nation theory.” Justice R.M. Sahai struck a relatively placatory note, stating, “A unified code is imperative… the first step would be to rationalise the personal law of the minorities to develop religious and cultural amity.” The verdict came in a case where a Hindu man had abused the Islamic provision of bigamy.
The noted legal expert Tahir Mahmood had then responded with a statement to PTI news agency: “The mawkish references to the majority community’s supposed role in uniform civil code and the admonition to the minorities—both contained in the main judgment – make it too obvious a fact to be refuted that the court shares with the masses the myth regarding non-enactment of a uniform civil code by way of ‘appeasement’ of the minorities, despite the majority community’s clear option and commitment in its favour.”
The pot has since been kept simmering. Earlier this year, the then Chief Justice of India S.A. Bobde lauded Goa for its uniform civil code and advised intellectuals to visit the State and “learn the administration of justice”. “Goa has what constitutional framers envisaged for India—a uniform civil code. And I have had the great privilege of administering justice under that code. It applies in marriage and succession, governing all Goans irrespective of religious affiliation,” the Chief Justice stated. The Hindutva brigade lapped it up.
The battle to usher in a uniform law is being waged on news channels, on social media, through legal avenues and on the streets. As many as five petitions have been filed in the Supreme Court over the past year. The petitioner in each case has been the BJP leader and advocate Ashwini Upadhyay, who, incidentally, had also filed a case against polygamy and nikah halala before the apex court.
Also read: Uniform Civil Code: Hindutva’s stick
Ashwini Upadhyay’s first two petitions, filed in December 2020, sought uniformity in grounds of divorce and the provisions of maintenance and alimony. (One was reminded of the verdict in the Shah Bano case in 1985.) Like other BJP leaders who often see the issue of uniform civil code through the Hindu-Muslim prism, Ashwini Upadhyay felt that divorce, maintenance and alimony laws in certain religions discriminated against and marginalised women. He felt that such laws violated Article 14 (right to equality) and Article 15 (right against discrimination on the basis of religion and gender and right to dignity).
Earlier this year, on Ashwini Upadhyay’s petition, the Supreme Court issued a notice to the Centre demanding uniform grounds of adoption and guardianship for all citizens throughout the country. The petitioner alleged that the current practice of adoption was discriminatory as Hindus had a codified law of adoption but Muslims, Christians, and Parsis did not. Later, in February, he filed another petition seeking a uniform age of 21 for both men and women for marriage. The court issued a notice to transfer petitions demanding uniform minimum age of marriage for men and women pending in the High Courts of Delhi and Rajasthan to the apex court to avoid multiplicity of litigation and conflicting views.
The legal expert Faizan Mustafa recently said on his YouTube channel. “If the framers of the Constitution had intended to have a uniform civil code, they would have given exclusive jurisdiction to Parliament in respect of personal laws by including this subject in the Union List. But ‘personal laws’ are mentioned in the Concurrent List. Last year, the Law Commission concluded that a uniform civil code is neither feasible nor desirable.”
Technically speaking, Article 44, as a directive principle, is not justiciable. Mustafa said: “While Article 44 uses the words ‘state shall endeavour’, other Articles in the Directive Principles section use a different expression, ranging from ‘in particular strive’, ‘shall in particular direct its policy’ to ‘shall be obligation of the state’, etc. Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44. All this implies that the duty of the state is greater in other directive principles than in Article 44.”
It was probably with a similar understanding that the Law Commission of India submitted a report in August 2018 saying a uniform civil code was “neither necessary nor desirable at this stage”. Now, with the Assembly election in Uttar Pradesh due in 2022, the BJP has different priorities. The demand for a uniform civil code is likely to take the place of the Ram temple promise of past years. The party’s working committee, which met after two years in 2021, resolved to move ahead on poll planks centred around the Ram Mandir (already accomplished) and the uniform civil code (to be accomplished). Speaker after speaker at the meeting called upon party workers to carry the party’s message on uniform civil code to the village level. Vikas, or development, was no longer the focus.