After repealing Article 370 of the Constitution, which granted special status to Jammu and Kashmir, and getting a favourable ruling in the Ayodhya case, the Sangh Parivar’s next pet project is to replace all personal laws with a uniform civil code (UCC). Going by recent developments, there appears to be some movement on this front.
On December 9, BJP Rajya Sabha member Kirodi Lal Meena introduced a private member’s Bill in the House. The Uniform Civil Code in India Bill, 2020, proposes to constitute a National Inspection and Investigation Committee to prepare a UCC. Its ostensible goal is to have a uniform set of laws governing aspects of marriage, divorce, guardianship, inheritance, adoption, succession, maintenance, and so on, cutting across all religious practices.
The Left parties and the Congress, the Trinamool Congress and the Samajwadi Party opposed the Bill on the grounds that it would destroy the social fabric of the country. The Treasury benches insisted on a debate. The issue was voted on, and the Bill was introduced with 63 votes in favour and 23 against. Curiously, many members from the Congress and the Trinamool were absent during voting.
A few BJP-led State governments have begun the process of developing their own UCCs. Uttarakhand began extensive consultations in June 2022 and has even set up a panel of retired judges and other experts to examine the implementation of a UCC. One of its members, Manu Gaur, a social activist, has been an avowed supporter of population control. In the last week of October, days before the Model Code of Conduct for Assembly elections came into force, the Gujarat and Himachal Pradesh governments announced that they too would constitute panels for a UCC.
In response to a question in The Rajya Sabha by John Brittas, member of the Communist Party of India (Marxist), on December 15, whether States could proceed with their own UCCs, Union Minister of Law and Justice Kiren Rijiju cited Article 44 of the Constitution (Directive Principles of State Policy), which lays down that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. States are empowered to legislate on intestacy and succession, wills, joint family and partition, and marriage and divorce (Entry 5 of List III in the Concurrent List of the Seventh Schedule of the Constitution).
The Uttarakhand initiative
The Uttarakhand government received more than 2.5 lakh suggestions by October 22, the cut-off for receiving feedback. Apparently, the 21st Law Commission, which ended in August 2018, had received only 78,000 suggestions during its two-year deliberation on the subject, a source associated with the Uttarakhand committee said.
According to the source, religious leaders agreed that a UCC was desirable and that practices such as polyandry and polygyny should be banned. The committee also received suggestions that the code should include a restriction on family size. There were suggestions on the rights of children from live-in-relationships, and succession and inheritance within such relationships. On the age of marriage, there was unanimity that it should be 21 years for men and women.
The source said that the voices of women would be given top priority by the committee. “The only thing we are looking at is gender equality.... How to make the laws gender neutral. The good thing is that the intellectual segment of every community is keen to resolve this,” said the source.
Indicating that there would not be any tinkering with religious customs and traditions, the source said as Goa had its own civil code, every State could do so.
Review of personal laws
Meanwhile, a Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, chaired by Sushil Kumar Modi, BJP’s Rajya Sabha member, is conducting a “Review of Personal Laws”. The committee will explore the possibility of codifying personal laws in order to respond to the “demands of social change and stamping out discriminatory practices that have crept into these laws”.
It has invited views on the following points: how to resolve a conflict between personal laws and fundamental rights in the Constitution; making personal laws gender just; justification of social evils as “religious customs”; reforming personal laws/family laws in States that were exempted under the Sixth Schedule of the Constitution (tribal areas in certain north-eastern States); and reforming secular laws such as the Special Marriage Act.
The time given for response from stakeholders was a period of 21 days from October 11, which some felt was insufficient. It is yet to finalise its report.
Amit Shah’s statement
At a function to mark the birth anniversary of Ahom King Lachit Barphukan on November 24, 2022, Union Home Minister Amit Shah said: “If a nation and States are secular, how can laws be based on religion? For every believer, there should be one law passed by Parliament or the State Assemblies.” If voted to power in 2024, he said, the government would implement a uniform code.
He referred to how the Constituent Assembly had also recommended a UCC, but left out the fact that while Jawaharlal Nehru and B.R. Ambedkar had supported it, the Hindu Mahasabha had opposed it. The Hindu Mahasabha later opposed the Hindu Code Bills too. Interestingly, the Objects and Reasons listed in K.L. Meena’s Bill mentions about Muslim representatives objecting to a UCC in the Constituent Assembly but does not mention the Hindu Mahasabha leaders’ stance.
Uniformity not equality, say experts
Former Law Commission member and Supreme Court lawyer Kirti Singh said equality could not be equated with uniformity. There was no contradiction in having equal laws for all and allowing laws to govern marriage or divorce as long as they were non-discriminatory. She stated that any amendments to the law could not be carried out without extensive consultation with women and groups working in the field of women’s rights.
Despite holding office at the Centre for two terms in a row, the BJP had failed to pass any significant laws favouring women, she said. According to Section 6 of the Hindu Minority and Guardianship Action, 1956, the natural guardian of a Hindu minor boy or unmarried girl is the father and after that the mother. Women had a secondary status according to this, she said. Significantly, there is also no law granting women rights to marital property during the duration of the marriage.
The UCC was an attack on the practices of religious minorities in the name of reform, she said and demanded extensive consultations on the UCC.
Sanjay Hegde, senior advocate at the Supreme Court, said the claim to bring forth a UCC was posturing at best. He believes that it will not be effective if a State law legalises some forms of marriage that were illegal in other parts. In some States, for instance, first-cousin marriages are allowed; in others, it was proscribed.
The Goa civil code, he said, was not exactly uniform. It was used by all communities, but it also recognised different types of marriage. According to him, if uniformity was the goal, a UCC would look at tax provisions (exemptions) in the Hindu Undivided Family. He wondered if that would be palatable to the community.
P.D.T. Achary, former Rajya Sabha Secretary General and constitutional expert, said that Article 254 states that if a State law is repugnant to a Central law, the State law cannot prevail. Said Achary: “I don’t understand how they are going to do it. Are they going to make a law for Muslims and Christians? How are they going to harmonise it? Is the Hindu Marriage Act the template or will practices and laws of other communities conform to Hindu law?”
Different communities had different succession laws, and different religious groups have different practices relating to maintenance, divorce and guardianship. The proposers of the UCC, however, did not appear concerned at all about Hindu laws of succession and property, Achary said.
Although there was disagreement regarding the practice of triple talaq among Muslim women themselves, it was one of the BJP’s first reforms to personal laws. Nearly everyone agreed that the practice should be outlawed, but not everyone thought it should be made a crime. The BJP was seen as actively reaching out to Muslim women by doing so.
With its pledge to implement the UCC, some believe it is trying to accomplish this goal yet again. This time, polygamy is on the agenda, and the two-child norm is being promoted, despite the fact that there is little proof that either practice is widespread or common.
Significantly, the 21st Law Commission had categorically ruled out the need for such a code and instead favoured reform and amendments of discriminatory practices within personal laws. Recently, Justice (Retd) Rituraj Awasthi was appointed as chairperson of the 22nd Law Commission. As Chief Justice of the Karnataka High Court, Justice Awasthi had ruled in favour of the Karnataka government’s order prohibiting hijab in educational institutions. Justice K.T. Sankaran, who has previously made comments about the conversion of women for marriage in Islam, is another member of the newly formed commission.
The question is whether the UCC will involve a new law applicable to all. For Hindus and Christians marriage is a sacrament, for Muslims it is a contract. One simply cannot be squared with the other.
- On December 9, BJP Rajya Sabha member Kirodi Lal Meena introduced the Uniform Civil Code in India Bill, 2020, proposing to constitute a National Inspection and Investigation Committee to prepare a UCC.
- Its goal is to have a uniform set of laws governing aspects of marriage, divorce, guardianship, inheritance, adoption, succession, maintenance, and so on, cutting across all religious practices.
- A few BJP-led State governments have begun the process of developing their own UCCs. Uttarakhand began extensive consultations in June 2022 and has even set up a panel of retired judges and other experts to examine the implementation of a UCC.
- Critics say the UCC is an attack on the practices of religious minorities in the name of reform and have demanded extensive consultations on it.