Ram Mandir, Article 370 (abrogation) and Uniform Civil Code. The three core promises of the Bharatiya Janata Party ever since its inception. While the first two have been realised, the UCC remains the last box to be ticked by the BJP-RSS under its ‘Hindutva’ agenda. And, as the 2024 General Elections are nearing, the baton for the third promise was taken upfront by none other than Prime Minister Narendra Modi himself. As expected, the issue did create an uproar. Well, there’s surely much underneath the concept, so let us try to analyse the idea from all angles and find out if it is “desirable and needed” or not.

What is UCC?

The Uniform Civil Code (UCC), basically proposes to replace the personal laws based on the scriptures and customs of each major religious community in the country with a common set governing every citizen. The major areas it aims to cover are marriage, divorce, and succession among others. So, some essential religious practices can be set aside, but the laws seek to bring uniformity in all major practices.

Now, how complex the situation is can be understood by some simple facts. For example, while having multiple wives is illegal in all other religions, Islamic practices still allow Muslims to do it (as many as four). Also, while in Hindu families, women are entitled to an equal share in property, that’s not the case in Muslims, who get less than half a share. While Hindu marriage is a sacrament, Muslim marriage is a contract, and divorce in Christians is stigmatised, in the Parsi laws, the registration of marriage is a ‘vital ritual’.

Prime Minister Narendra Modi has himself taken the baton of pushing the UCC agenda (Photo: EastMojo)

Arguments For and Against UCC

The major argument in major of favour of UCC definitely is bringing “equality and uniformity” in the country’s laws. The BJP-led Centre has been saying that it is not against any religion, and “just aims to bring uniformity”. However, the vested interests are not leaving the opportunity to use their anti-Muslim rhetoric. As PM Modi himself stated, “Just like a family, a country also can’t run with different laws for different members”. Now, no rational and democratic person can support women of one community not getting an equal share in property and not getting proper alimony, or a man of a particular religion having multiple wives simultaneously. So, the core idea that UCC entails — prima facie — doesn’t sound unfair by any means.

Now, the arguments against UCC are majorly centred around the way it will be implemented. Those opposing it have cited ‘freedom of expression’ and Article 14 which guarantees it. They are calling it an “infringement” and “state interference”. It is also being said that in a diverse country like India, it is not easy to accommodate everyone’s interests in one common law. Notably, it is not just Muslims, but also Sikhs and several tribal communities have been opposing the idea expressing concern regarding their personal freedom. The strongest criticism (most appropriate too) is the use of UCC as a ‘political tool’. A sensitive and important issue like this, definitely deserves more deliberation and discussion than bringing it right before the elections, just for a formality.

An old cartoon depicting the debate around the Hindu Code Bill (Photo: The Wire)

Hindu Code Bill 1956

Yes, to understand the concept properly, we need to go this back. This concept of having the religions codified under the law was right there in discussions in the Constituent Assembly when the Constitution was being framed. BR Ambedkar was especially adamant about a UCC sort of thing. But, many leaders primarily Jawaharlal Nehru were sceptic of shuffling the religious laws so soon in a country that had just undergone partition, that too based on religion. As a result, the idea of ‘codified laws for all’ was shelved. However, the leaders still thought of going ahead with the reformation of the ‘Hindu’ practices, under the Hindu Code Bill 1956.

The makers of the Constitution, however, decided to bring USS at least to the notice of future generations by mentioning it in the Directive Principles of State Policy (Article 36-51) of the Constitution. The articles under DPSP are kind of directions that the governments should aim to bring in the future at an appropriate time. However, none of these articles are enforceable “by any court”. (For example, Right to Education and securing living wage and standard of living comes under DPSP). Now, Article 44 of the Constitution states, “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”.

On expected lines, it irked the conservative section of the Hindu community. So much so that a radical monk even contested against Nehru — who had declared to contest the poll on the issue of the Hindu Code Bill only — from Allahabad, only to lose by a huge margin of over 2 lakh votes. However, Ambedkar had a fallout with Nehru, right before the elections. Ambedkar stated that Nehru was not “willing enough” to pass the law and he resigned as the Law Minister. The bill was anyways passed under Nehru’s leadership.

The Hindu Code Bill comprised of four major parts: Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. Quite interestingly, even Sikhism, Jainism, and Buddhism were categorised as ‘Hindus’ under the jurisdiction of the bill. So, it was only the Muslims, Christians and some other small religions who were left outside the purview. Now, many critics are of the opinion that Nehru had the opportunity then, and he should have codified the acts of all other religions under one umbrella, instead of leaving the issue for future generations.

In a regressive move, then PM Rajiv Gandhi overturned the SC ruling in favour of Shah Bano (Photo: Scoop Whoop)

The Shah Bano case

The other major story in this debate comes in the year 1985. Shah Bano, a 62-year-old woman — after 40 years of marriage and five children — was thrown out by her husband with a meagre sum of Rs 3000 as Mehar. She took the legal route seeking basic maintenance under Section 125 of the Code of Criminal Procedure (CrPC). After the lower and high courts ruled in her favour, her husband Mohd. Ahmed Khan took to the apex court, arguing that the “Muslim Personal Law was not subject to the jurisdiction of the civil court” and no maintenance should be paid to Bano.

As per the Islamic practice, the husband is allowed to divorce his wife just by stating the “Talaq” word thrice — at a simple meagre sum as Mehar, and with “no obligation” of maintenance. But, in a landmark judgement, the five-judge bench — led by then CJI YV Chandrachud (father of current CJI DY Chandrachud), Rangnath Misra, DA Desai, O Chinnappa Reddy, and E. S Venkataramiah — unanimously dismissed Ahmed’s appeal and maintained the HC order. This was an extremely righteous and progressive judgement. The court even remarked that “if UCC comes it will work for national integration and will provide better solutions in times of conflicting ideologies”.

However, some people are immune to progressive developments. So, Prime Minister Rajiv Gandhi was somehow of the impression that this might “hurt” the Muslim sentiments. And, the Congress government — which was in power with the largest mandate ever — brought an extremely regressive Muslim Women (Protection of Rights on Divorce) Act, 1986, which circumvented the SC order and restricted Muslim women from the right to alimony. Gandhi was under a false impression, and he was actually appeasing only the “most conservative” of the minorities among Muslims. A respite in this direction came only after some 30 years.

Among the best reforms that have taken place under the Narendra Modi government, the abolition of Triple Talaq would always come at the top. Firstly, a five-judge SC bench in 2017 declared Triple Talaq “unconstitutional” and “illegal”. This was followed by the BJP government passing the Muslim Women (Protection of Rights on Marriage) Act in 2019 making Triple Talaq in any form – spoken, written, or by electronic means such as email or SMS – “illegal and void”. Many experts believe that once the Triple Talaq was declared unconstitutional, the purpose of UCC was accomplished to quite an extent. But, still, room remains to bring in those areas that continue to lie outside the purview of codified laws.

Arguments for and against the Uniform Civil Code (Photo: Legacy IAS Academy)

The Curious Case of Goa

Now, while we talk about having a Uniform Civil Code, there is one unique example that we should see, which happens to be from Goa. The Goa Daman and Diu Administration Act of 1962. This was passed after Goa became India’s territory in 1961. The territory was given the permission to apply the Portuguese Civil Code of 1867. Some major points of this civil code are: It permits equitable distribution of wealth between husband, and wife as well as their offspring irrespective of their gender. Every birth, marriage, and death must be registered voluntarily. There are numerous provisions for divorce. However, Muslims who register their marriages in Goa are prohibited from engaging in polygamy and Triple Talaq

However, even this is not devoid of limitations. Under this law, the Catholics enjoy certain privileges, such as exemption from marriage registration and the ability of Catholic priests to dissolve marriages. Catholics can also solemnise their marriages in church after obtaining a No Objection Certificate (NOC) from the Civil Registrar, while for others, only a civil registration of the marriage is accepted as proof of marriage.

The law also has inequalities in the case of adopted and illegitimate children. In terms of gender, a man is entitled to a divorce if his wife has an affair. However, a woman can only obtain a separation on the grounds of her husband’s infidelity if it has resulted in a public scandal and a divorce if he brings his mistress into their marital residence.

The law also doesn’t recognise bigamy or polygamy, including for Muslims, but in an extremely surprising twist, grants an exception to a Hindu man to marry once again if his wife doesn’t conceive a child by the age of 21 or a male child by the age of 30.

So, how the UCC should be?

Well, as I pointed out above, no rational person, who calls himself a liberal and democratic, can outrightly oppose the idea of UCC. I personally, am in favour of UCC by all means, because there is no way, that we can allow someone to have multiple wives or deprive some women of equal ancestral rights. So, everything will boil down to its implementation. As of now, the status quo stands; the 22nd Law Commission under Justice Ritu Raj Awasthi has been given the task of collecting the views of different stakeholders for UCC. However, it is pertinent that the 21st Law Commission in 2018 stated that the UCC at this stage is “neither desirable nor necessary”.

Also, several, BJP-ruled states are already on the verge of implementing UCC. Uttarakhand is at the forefront, and the state is expected to give its final draft in a week or two. So, some quick progress can be expected on the subject, and the winter session of the Parliament seems to be the most likely time when it will eventually be brought to the Parliament and might even get passed. All I can hope and suggest is that during discussions surrounding it, lawmakers should refrain from religiously polarising the atmosphere. During discussions, take all stakeholders into confidence and stick to proper facts and concerns. Only then, can UCC, even after being implemented, will be truly able to realise its objectives.

JAI HIND