An Uncivil Debate

In February last year, 17-year-old Gowdesiya and Safa were asked to remove their hijab before entering their college in Yelahanka in Bengaluru. While Gowdesiya decided to remove her hijab, Safa stopped going to college. “Hum aapko chaaku se maar denge (we will kill you with a knife),” is what Safa and her friends had to hear for wearing the same clothes they have always worn since they stepped foot in the institution.

Like Gowdesiya and Safa, a thousand other girls were forced to make a choice between their religion and education in February 2022, according to a report by the People’s Union for Civil Liberties (PUCL). At the same time, the ruling party in the state then, the Bharatiya Janata Party (BJP) and its leaders, echoed the importance of a Uniform Civil Code (UCC) and how it could be a possible ‘solution’ to the issue.

Interacting with reporters, BJP leader Giriraj Singh had described the row as a “disturbing trend aimed at muddling the atmosphere of the country.” “There are some vote ke saudagar (vote dealers) who, for their political benefits, are supporting such illogical demands of wearing hijab in school. Such people are playing with the lives of innocent girls for votes. I feel a UCC is the need of the hour and it should be discussed from the streets to Parliament,” Singh had said.

While the incident was turned into an issue of non-adherence to dress code, the ‘uniform’ rather than the hijab is what caught the attention of researchers. Historian Arunima G writes in her book, The Hijab: Islam, Women and the Politics of Clothing, that the row brought to fore the far more dangerous potential that ‘uniformity’ has for eroding personal laws, and cultural and religious differences within the country.

The UCC emerged from the aspirations of women’s movements, championed by B R Ambedkar, to establish an inclusive legal framework aimed at fostering gender equality. Its primary objective was to address issues such as marriage, family, and inheritance practices, which currently fall under the purview of religion-specific ‘personal laws’ in India.

However, by the late 1980s, seeing the potential for its grave misuse in the wake of escalating communal violence, women’s groups and organisations abandoned the campaign for a UCC. Instead, they pressed for the creation of an egalitarian civil code that could be opted by anyone who wished to do so, irrespective of their religion at birth.

The Hindu right-wing rhetoric has generally pushed the common personal law as a counter to what they claim are ‘regressive’ personal laws of Muslims. In its monthly editorial this February, the RSS-linked magazine Indraprastha Samwad made a case for a UCC, saying: “Why should mosques, churches, and gurudwaras be allowed to manage their affairs and finances, while the government exercises control over affairs of temples, and why should Muslim women be deprived of alimony after divorce, when Hindu women are entitled to it?”

Scholars have termed such a pretext as the ‘saving Muslim women’ narrative under which the demand for a UCC, or for that matter, the hijab ban, has also been justified. “While their desire to ‘save’ Muslim women from polygamy is the argument that is heard most often, it is evident that uniformity, as in homogenising a country with immense cultural and religious diversity, is what underwrites the Hindutva agenda,” Arunima further says.

UCC in Karnataka

If voted to power in the state, the BJP had promised to implement the UCC and National Register of Citizens (NRC) in Karnataka. The inclusion of these issues in its manifesto hinted at the BJP’s plan to leverage Hindutva sentiments despite the fact that the party had chosen to downplay contentious issues like the ban on the hijab, halal meat and the azaan and the role of Tipu Sultan in its poll campaign.

In fact, former chief minister Basavaraj Bommai too had said that the implementation of the UCC in the state was necessary to ensure equality. According to a few party insiders, a committee was formed during the previous government’s regime in the state.

“The committee has been taking inspiration from other states such as Goa, Assam and Himachal Pradesh. However, the report is not ready yet. But we firmly believe it is important,” says party state spokesperson M G Mahesh, adding the ‘model UCC’ would make changes to inheritance rights and marriage laws.

A Pandora’s Box

However, policy experts and lawyers warn that framing such a code could have unintended blowback even from the country’s Hindu majority, which the BJP professes to represent.

“While the idea behind a UCC is that you are bringing together Hindu law, Muslim law, and others, these laws are fairly complex and much more diverse than that,” says Sarasu Esther Thomas, professor of law at the National Law School of India University, Bengaluru.

The Hindu Code Bill was a set of laws passed in the 1950s that outlawed polygamy for Hindus and governed other aspects such as inheritance, adoption, inter-caste marriages and divorce. This law is often used as a justification by the Hindu Right to introduce a UCC across all religions.

“But the Hindu Code Bill too is not uniform,” Thomas says. In several decisions regarding who can marry whom, Hindu customs take priority, just like in other religions. This meant that even with the Hindu Code Bill, which tried to bring about a uniform Hindu code, it was impossible to do so because of the diversity in practices within the community.

Thomas explains that with a uniform code, the concept of a Hindu Undivided Family too comes under threat. The Hindu Undivided Family is a family-based entity that gets tax exemptions under the Indian taxation system. If a UCC meant losing these benefits or extending this benefit to other communities, Hindu businessmen will be the first to protest, Thomas says.

On the other hand, Muslim personal law is also not entirely uniform. Some Sunni Bohra Muslims, for example, are guided by the principles of the Hindu law in matters of inheritance and succession. So, what could be the neutral guiding principles? researchers ask.

The Question Of Marriage

Without a written draft of a model UCC, legal experts wonder how the BJP government at the centre can frame a uniform law that freely allowed marriages across religions and communities alongside its anti-conversion laws that have been passed with a view to curbing interfaith marriages.

Karnataka too had notified its anti-conversion law on September 30 last year, becoming among nine states to do so. The state saw its first arrest a couple of days later, of Syed Moyin, a Muslim man who had eloped with a young woman, on the charges of converting her to another religion in violation of the newly introduced law — the Karnataka Protection of Right to Freedom of Religion Act, 2022.

The question that has often been raised is whether, in the absence of a UCC in India, the Special Marriage Act 1954 is the best alternative or perhaps, a precursor, to protect the interests of people in inter-faith marriages.

However, Supreme Court advocates such asVikram Hegde say that even if the Special Marriage Act, which gives a common or uniform marriage to all citizens of India irrespective of their religion and caste, was made the model for UCC, it would still not be agnostic to personal laws.

Even under this act, the decisions regarding membership of a person in a joint family or prohibited degrees of marriage will boil down to the customs followed by the religion, he says. “So, the notion that Hindu law is right for uniformity is not true,” he comments.

A ‘Model’ UCC

While BJP leaders in Karnataka cite the civil code in Goa as an example of a model UCC, it has different provisions for different religions and may not be considered as equitable for women.

In fact, legal scholar and expert, professor Faizan Mustafa, demonstrated how the much-admired Goan law permitted Hindu men to marry a second time if their first wives did not give birth to a male child by the age of 30.

Scholars like him and others have argued that while the rationale of gender justice and equal rights behind a UCC is essential, imposing such a code will not be effective.

The way forward, they suggest, would be to reform the already existing religious personal laws. A similar stance was taken by the Law Commission of India in a consultation paper on the UCC in 2016, which said that the governments must deal with “laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable”.

Opposition leaders believe that many BJP-ruled states may be pursuing the UCC only to polarise voters. Others wonder why the BJP has not been able to come up with the code despite being in power for a long time in some states.

In Karnataka, with the Congress having come to power, the party has agreed to review and repeal “regressive decisions” of the previous BJP government such as revision of school textbooks and laws against conversion and cow slaughter.

While it might not have made as much noise in Karnataka during the state assembly elections, with the general elections months away, can the BJP afford to drum up the issue of the UCC once again?

Anisha Reddy in Bengaluru