In a recent public notice, the 22nd Law Commission of India solicited “views and ideas of the public at large and recognised religious organisations about the uniform civil code [UCC]”. In August 2018, the 21st Law Commission had put out a Consultation Paper on Reform of Family Law and not a draft of UCC. Based on research and consultation with experts, it said that “the issue of uniform civil code is vast, and its potential repercussions untested, in India”.
The commission took a clear stand that neither the right to equality nor the freedom of religion are absolute, and urged the legislature to “first consider guaranteeing equality ‘within communities’ between men and women, rather than ‘equality between ‘communities’”. It called for preserving meaningful differences within personal laws while weeding out inequality “to the greatest extent possible without absolute uniformity”.
It is not clear what the 22nd Law Commission is inviting people to comment upon since no draft of a UCC has been placed in the public domain by either the Law Commission or any Ministry. Nor has the 22nd Law Commission provided any reason why it has completely set aside its predecessor’s 2018 consultation paper.
The Supreme Court, political and religious leaders, public figures, legal scholars, public intellectuals, and now media influencers have discussed the possibility of a UCC, but no government has yet presented a proper conceptualisation. No one has given an idea of what the UCC could look like. Legal scholars have gone so far as to call the UCC a “complete fiction”, so this fresh move by the government exposes the UCC as a political sleight of hand.
Theoretically laudable, but impractical
Despite promising to enact the UCC in its 2014 manifesto, the BJP government too has not been able to come up with a draft. On at least one occasion the BJP said that the UCC would contain progressive elements of all personal laws. This legal vision, strangely coming from the BJP, is reminiscent of Mughal Emperor Akbar’s syncretic order—theoretically laudable but impractical. The timing and content of these “UCC discussions”, however, suggest that it is part of the BJP’s repertoire of electoral tricks to target Muslims and create social rift.
Uttarakhand Chief Minister Pushkar Singh Dhami, who regularly uses terms like “love jehad” and “land jehad”, has now said his government will implement the UCC, drafted by a committee headed by retired Supreme Court Judge Ranjana Prakash Desai. This committee too invited “comments on UCC” without a draft. News reports have cited unnamed sources to suggest that a draft is now “ready to be printed” even though nothing is yet in public or placed in the Uttarakhand legislature. The reports appear to be prompted by deliberate leaks.
While there are many Indian Muslims who baulk at any mention of reforming Muslim Personal Law, others stress the need for reforms to root out many prevalent non-Islamic practices. Still others believe that Islamic jurisprudence values human reason along with divine or transcendental knowledge to judge what is right and wrong, and that Muslim Personal Law, like most other laws, needs amendments to fine-tune it for emerging realities.
Unfortunately, the hollow narrative of “discussing UCC” is not unique to the BJP. Most commentators frequently reduce the discussion to portraying Muslim Personal Law as a symbol of the Indian Muslim’s conservatism, and the Hindu Code as having been perfected as far as gender justice is concerned. Ergo, many aggressive proponents of the UCC assume and insinuate that it will be in the image of the Hindu Personal Law. The UCC is also regularly portrayed to mean that only Muslim Personal Law will be abolished. Thus, Muslim opposition to the UCC is in essence an opposition to the imposition of a Hindu civil law in the garb of UCC.
The fresh stoking of the debate is political chatter devoid of any legal content. The BJP’s discourse insinuates that it is another step towards making India a Hindu Rashtra after the abrogation of Article 370 and the passage of the Citizenship (Amendment) Act, 2019. [The Citizenship (Amendment) Act, 2019, aims to grant fast-track citizenship to migrants belonging to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian communities from Pakistan, Bangladesh, and Afghanistan who entered India illegally on or before December 12, 2014.]
- The 22nd Law Commission of India has sought public views on the uniform civil code. The BJP has not been able to come up with a draft yet.
- The UCC debate is often politicised, and its implementation raises concerns about cultural impositions and loss of identity.
- The process of reforming personal laws needs to be inclusive and voluntary. It needs wide, inclusive, and voluntary engagement of the communities concerned.
It bears repeating that women identified in Indian law as “Hindu” follow different customary laws. It would be impossible for anyone reasonable to argue that all women following the Hindu personal law are fully emancipated. Those confident of achieving gender justice via the enactment of the UCC have their task cut out because they have not only failed at envisioning a truly uniform civil law but have also not articulated what a gender-just and equal Indian society will look like.
The questions that need answers are: Will the Hindu family law also be replaced by the UCC? Will customary laws followed by various communities across India (some recognised by the formal judicial system—371A, 371G of the Constitution recognise Naga and Mizo customary laws, for example) also be abolished? Will the Hindu Undivided Family law, which gives special tax-saving benefits only to ‘Hindus’—who are defined as everyone not Muslim, Christian, Parsi, and Jew—and which costs the Indian exchequer heavily, be abolished under the UCC? Can all citizens adopt mehr? Should all marriages be based on a model contract? Can all communities agree to a matrilineal line of inheritance like Meghalaya’s Khasi tribe?
While the Muslim opposition to a UCC is flagged, most of these questions will be answered in the negative even by Hindus. Even a syncretic UCC adopting the “best of all religions” will be experienced as oppressive. With their tumultuous and contested history, can Indians be blind to the fact that forcing people of one culture to live by the tenets of another is violence?
That apart, the most desirable of gender-just family laws require a more radical feminist interpretation which unfortunately even today read as utopian fantasies. I cannot imagine them being palatable to present-day lawmakers.
“They have not articulated what a gender-just and equal Indian society will look like.”
The most important question that is rarely asked is: What is the rationale behind having the UCC in the Directive Principles of State Policy? Those who remember their civics lessons will know that the Directive Principles in Part IV of the Constitution acted as a parking lot for controversial provisions over which no consensus could be reached by the Constituent Assembly, and they left it for future generations of Indians to decide.
For example, Ambedkar saw village panchayats as a sanction for the continuation of caste-ridden village communities. Article 40 was included in the Directive Principles. The 73rd Amendment apart, this provision has long provided legal cover to caste panchayats such as khaps in northern India and is not deemed to be against social justice. Indeed, these panchayats are often proven to perpetuate gender injustice. Similarly, Article 48 contains controversial provisions that continue to provide cover for communal politics and legislation around meat and leather industries as well as livestock.
All Directive Principles declare towards what end a particular policy is directed and what it will bring to the people of India. Only Article 44, the provision on the UCC, is silent about its grounds or benefits.
It is interesting that various other provisions in the Directive Principles that pertain to international peace, protection of environment and heritage monuments, the right to work and livelihood, health of workers, free legal aid, and so on, are routinely ignored, while provisions that impose material hardships and cultural violence on marginalised communities are taken up with excessive zeal.
Legal scholars have studied the Constituent Assembly debates for a clue as to why the need for a UCC was felt at all. One of the anxieties articulated about pluralism was that it would be against national unity. Prime Minister Narendra Modi in his recent speech also spoke of “running the country on separate laws”. In saying this, he echoed charges of Muslim “separatism” and stoked outrage that minorities have “their own laws” in a Hindu majority country.
Ambedkar’s assurance in the Constituent Assembly
The need for a UCC has achieved an axiomatic status owing to the constant incantation that it was a dream of the founding fathers of the republic. But it is debatable whether it is moral or even rational to make cultural impositions on people and communities. Dr Ambedkar gave Muslims an assurance in the Constituent Assembly. He said the provision “… merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. 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 stages the application of the Code may be purely voluntary.” Even in his wider interventions on the debate, Ambedkar was unambiguous about legal pluralism.
Owing to India’s federal nature, pluralism is seen on many legal fronts in differing degrees, and not just in family law. Since 2014, the BJP government has shown centralising tendencies on issues such as the GST, imposition of Hindi, or usurping the powers of State governments.
The perversion of democracy through the rhetoric of a “double-engine government” is taking place in plain view and has been normalised as strategic acumen. “Uniformity” is the BJP’s dogwhistle for its relentless pursuit of concentration of power.
“Owing to India’s federal nature, pluralism is seen on many legal fronts in differing degrees, and not just in family law.”
Legal pluralism has problems and paradoxes similar to multiculturalism as state policy or indeed democracy as a system of governance. However, there is enough historical evidence worldwide to suggest that legal pluralism as an approach to governance in a diverse society cannot be discarded as a relic of the past. Indeed, it would be devastating.
The legal fiction of a UCC should be divested in favour of a progressive civil code, which, following Ambedkar’s view in the Constituent Assembly, can be made optional. Any citizen can volunteer to access it or opt out of it in a way similar to the Special Marriage Act or the adoption provisions under the Juvenile Justice Act.
Periodic review of personal laws is also required. The process of reforming personal laws need not be strictly internal to a community. It can involve advocates and experts in a particular personal law. A codification process that pursues only those reforms favoured by powerful voices within and outside the minorities needs to be avoided. All this needs wide, inclusive, and voluntary engagement of the communities concerned.
This process can be facilitated and encouraged by state agencies, but this can only happen in an environment of trust, when communities believe that the state is a neutral arbitrator and invested in ensuring the happiness of the greatest number of people. This is impossible under the present BJP government.
Ghazala Jamil teaches at the Centre for the Study of Law and Governance, Jawaharlal Nehru University.