In its election manifestos, at the Centre and in the States, the Bharatiya Janata Party has shown remarkable consistency in its demand for a uniform civil code since 1998 and more recently in the 2019 parliamentary election. The issue has always cropped up in the BJP’s discourse every time an election is around the corner, although the ‘promise’ has never been followed through, unlike its commitment to abrogate Article 370 which it did. n
The obvious objective behind letting loose the uniform civil code genie is to get certain sections worked up, especially the minorities, and to reap dividends by keeping the polarisation pot boiling. With Article 370 out of the way and temple construction at Ayodhya under process, the uniform civil code is perhaps the only weapon left in the party’s arsenal. When the Supreme Court upheld the invalidity of instant triple talaq, BJP leaders went into raptures and opined that it was time to formulate a uniform civil code.
In recent weeks, the demand has cropped up not only from the BJP’s central leadership but from various Chief Ministers of BJP-ruled States on the plea that Article 44 of the Constitution (Directive Principles of State Policy) gives States the right to legislate on a uniform civil code. Part IV of Article 44 states: “The State shall endeavor to secure the citizen a Uniform Civil Code throughout the territory of India.” Such a code would essentially comprise a common set of laws governing marriage, divorce, succession, adoption, guardianship and inheritance. Two questions arise: whether this uniformity is desirable in a country with immense diversity of customary practice; and whether tinkering with the constitutional protection for personal laws of every religion is appropriate.
Uttarakhand Chief Minister Pushkar Singh Dhami was the first to raise the issue, saying a uniform civil code was a promise in the recently held Assembly election. He told the media that he would set up a panel to examine the issue. Next to speak up was his counterpart in Himachal Pradesh, Jairam Thakur. Elections are due later this year in Himachal. Then Assam Chief Minister Hemanta Biswa Sarma said a uniform civil code was important to give justice to Muslim women. Next, Goa Chief Minister Pramod Sawant asserted that the Goa Civil Code was a “model” for other States. He was referring to the Portuguese Civil Code of 1867 that Goa still follows. (Asaduddin Owaisi of the All India Majlis-e-Ittehadul Muslimeen, who is a member of the Lok Sabha, recently claimed that the Goa Civil Code gave the Hindu man the right to marry a second time if his wife failed to deliver a male child by the time she was 30.)
In Uttar Pradesh, Deputy Chief Minister Keshav Prasad Maurya told the media that “one law for all in one country” was the need of the hour. He added that the State government was “in favour of a uniform civil code”.
In the third week of April, Union Home Minister Amit Shah stressed the need for a common civil code at a party meeting in Madhya Pradesh. Referring to the resolution of issues pertaining to the Citizenship (Amendment) Act, Ram Mandir, Article 370 and triple talaq, he indicated, as reported by the media, that it was time to focus on a common civil code. Sushil Modi, Rajya Sabha MP and BJP leader from Bihar, supported the idea. However, Janata Dal (United) Parliamentary Board chairman Upendra Kushwaha was reportedly dismissive. (The BJP and the JD (U) run a coalition government in Bihar.) In Maharashtra, the Republican Party of India, which is a constituent of the National Democratic Alliance, and Raj Thackeray’s Maharashtra Navnirman Sena, have backed the proposal for a uniform code.
At the other end of the spectrum, the All India Muslim Personal Law Board called it “unconstitutional” and anti-minority. Asaduddin Owaisi rubbished the proposal and cited a 2018 Law Commission report to say that it was not needed.
There are genuine apprehensions that a BJP proposal for a uniform civil code would ultimately be less about uniformity and equality and more about encroaching on the personal laws of minority and tribal communities. The ‘reform’ would not be confined to removing polygamy or perceived injustices in religious practices other than Hindu law but would encroach severely on customary practices of communities which have protection under the Constitution unless, of course, they come in conflict with “rights-based” laws.
Kirti Singh, Supreme Court advocate and legal convener of the All India Democratic Women’s Association, says a uniform civil code as understood by the BJP is less about framing common laws that would guarantee equal rights to women in matters of marriage choices, inheritance, succession, maintenance and so on and more about imposing its own regressive ideas on such issues in the name of uniformity. She said what was needed was a secular and equal code. The Constitution-makers envisaged a uniform civil code as a secular code. That was what women’s groups also wanted when they supported it.
Kirti Singh added: “The BJP does not conceive of women as equal partners in a marriage. So, if that is not the case, one can surmise what kind of code they will bring about. The BJP’s UCC might not only replicate Hindu laws but might also contain regressive provisions.” For instance, she said, the government had so far done little about bringing laws dealing with crimes in the name of honour and coercive and forced marriages. “This made us realise that the government will not give us a civil code. India already has a rich history of common laws: The anti-Sati legislation, the Child Marriage Prohibition Act, the Dowry Prohibition Act, and the more recent Prevention of Domestic Violence Act.
“So nothing prevents them from introducing laws in areas where there are large gaps and where women’s rights are not recognised. For example, consider marital property. Women don’t have rights even after 10 years of marriage. Their contribution to the household is not looked at with value at all. Women’s work in the house or care work in looking after children and the elderly is regarded as not being of any value and after years of marriage they can be abandoned without any of the marital assets and properties which the couple have bought if these are not in her name. A law for an equal share in the assets and properties of the marital home for women is therefore necessary. So if there is a separation, desertion or abandonment, they have no rights over the movable or immovable properties that both parties had built together.
“That they don’t address honour crimes shows that they have no value for people choosing their own partners and entering into relationships of their choice. They support caste hierarchy in arranged marriages. Girls can’t marry in families lower than their caste. The anti-conversion laws passed by various BJP-ruled States show that they are totally against inter-faith marriages. They promote fictional theories of love jehad, theories that have been found to be false by the Supreme Court. Despite this, they have brought about Freedom of Conversion Acts, which are draconian. The permission of the state has to be taken to convert, the real ‘motive’ for conversion has to be ascertained, and the onus of proof is placed on the man. The person who is conducting the conversion is also punishable under these laws. There are so many Muslim youth and their families who have been booked under these anti-conversion laws in BJP-ruled States.”
In Uttarakhand, she said, only unmarried daughters were added to the list of heirs in 2021 whereas married daughters did not have rights to parental property. Kirti Singh had taken this up in the Uttarakhand High Court. In Uttar Pradesh, too, an unmarried daughter could inherit a share of her father’s property but forfeited that right once she was married, which was quite contrary to the Hindu Succession (Amendment) Act, 2005, which gave all daughters equal coparcenary rights to the father’s ancestral property.
In 2018, a Law Commission Consultation paper on “Reform of Family Law”, an exercise conducted over two years, concluded that it was discrimination and not difference that lay at the root of inequality and there was a need to preserve the diversity of family laws and at the same time ensure that the personal laws did not contradict the fundamental rights guaranteed under the Constitution. It recommended the codification of personal laws relating to family and amendments to remove inequalities in codified law. It also pointed out that if personal law were to be codified in contradiction of constitutional rights, such codification was not desirable. It could lead to the codification of discriminatory customs, regardless of their common acceptance and lead to a “crystallisation of prejudices”.
The legislature, the paper urged, ought to take the first step of guaranteeing equality within communities rather than equality between communities. The differences between various personal laws could be preserved and discriminatory practices and inequality weeded out without imposing uniformity. It was amply clear that the the Law Commission, asked to deliberate over the issue of a common civil code by the Ministry of Law and Justice, had quite a different viewpoint. The right to freedom of religion and the right to equality, it stated, were valuable and guaranteed to every citizen and to make women choose between either of the two was unfair. Therefore, it said, “Women must be guaranteed their freedom of faith without any compromise on their right to equality.”
The commission report pointed out that infirmities in secular laws such as the Special Marriage Act needed correction and that dowry, child marriage, triple talaq, slavery, sati and other such social evils took place under the garb of religious customs. The commission concluded, on the basis of consultations with women’s organisations, that “religious identity was important to women and personal laws, along with language and culture, often constituted a part of this identity and an expression of freedom and religion”.
In the controversy on the hijab, which pitted girl students against the educational bureaucracy, women’s groups averred that determining the essentiality of the practice was not as important as ensuring that the right to education for these young women was not disrupted.
It is a matter of record that the Hindu Mahasabha opposed reforms suggested in the Hindu Code Bill on the grounds that it “disrupted the family system and stable society”. The Bill, applicable to all communities barring Christians, Muslims and Parsis, provided rights to divorce, inheritance and succession, all of which were “severely diluted from conservative sections of Hindu society”, states the Commission report.
The Constituent Assembly had not arrived at a consensus on what a uniform civil code should provide. B.R. Ambedkar himself, as records show, wanted the adoption of a such code to be voluntary. He recommended: “It is perfectly possible that the future Parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it so that in the initial stage the application of the code may be purely voluntary….”
The Commission’s observations on judgments, as in the Shah Bano case, where the court observed that a common civil code would “help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies” was not very flattering. It stated that the state was an “enabler’ and not an “initiator” in sensitive matters such as religious personal laws. It made it clear that while framing laws, cultural diversity could not be compromised to the extent that the urge for uniformity became a reason for threatening the territorial integrity of the nation. The idea behind a civil code should be to address “social injustices”.
Constitutionally, the Sixth Schedule provides protection to Assam, Nagaland, Mizoram, Andhra Pradesh and Goa with respect to family law. The provisions allow for the setting of up autonomous districts and autonomous regions. The district councils deal with aspects of family law. The Code of Criminal Procedure, too, was not applicable entirely in parts of the north-eastern region. Article 371 A of the Constitution envisaged special treatment to Nagaland, recognising its social conditions vis-a-vis the stages of development in the rest of the country. Similar exemptions existed for other States in the region.
In the case of Nagaland, no act of Parliament would apply to the religious and social practices of the Nagas, Naga customary law and procedure, administration of civil and criminal justice involving Naga customary law, ownership and transfer of land and its resources, unless the Nagaland State Legislative Assembly willed it so by way of a resolution. The Commission considered the point of view that a uniform civil code was important for national integration; but cultural differences also informed people’s identity and their preservation guaranteed the territorial integrity of a nation.
In a country where marriage is considered a sacrament in one religion (Hinduism), a contract in another (Islam), registration as part of the marriage ritual regarded a must (Zoroastrian-Parsi) in yet another, and divorce stigmatised in a fourth (Christianity), the imposition of a uniform family law is unrealistic to say the least.
Those who are demanding it on specious grounds of liberating women of certain communities also know that it is not possible. The BJP risks annoying some of its own new-found allies, especially in the north-eastern States. What is needed is a secular civil code that guarantees equality, but this is not what the BJP and its ideological brotherhood have in mind or are prepared to give.