One Nation, One Legislation: After Article 370, Uniform Civil Code BJP’s Next? How It Will Impact You

Seventy years ago, B.R. Ambedkar had famously said this in a passionate speech in the Constituent Assembly: “No one need be apprehensive that if the State has the power, the State will immediately proceed to execute…that power in a manner may be found to be objectionable by the Muslims or by the Christians or by any other community. I think it would be a mad government if it did so.” The father of the Indian Constitution made this reference after a consensus on putting a Uniform Civil Code (UCC) in place proved elusive: it was a universally governing structure that he envisioned as a secular family law, one that was not constrained by any religious law or community custom. He had desired a UCC that would replace religious personal laws regarding marriage, inheritance, adoption, succession and all other rights within the family that flow from religion or tradition. Finally, he had to settle for a mention in the directive principles in Article 44 of the Constitution, which said “the State shall endeavour to secure for citizens a uniform civil code”.

This, then, presents the ruling dil­emma for almost everyone. Even Ambedkar wanted reform. To be sure, religious laws or community customs are not always the most rational, just or equitable—this applies to ‘Hindu’ traditions too, which are probably as numerous as there are dialects in the country. Hindus too are governed by community-­specific laws, which are still in evolution. For instance, it was only in 2005 that Hindu women were granted the rights to family property, for instance—and the right to marital property in case of a divorce is still den­ied to them. Not all practices are codified either: the Bhils have an annual ‘bhagora’ festival where a boy can elope with a girl and they’re recognised thereafter as a couple; and both the Baigas of the Narmada region and the Santhals further east recognise polygamy. Bigamy/polygamy is widely attested to be more prevalent among Hindus ­anyway. But the way the idea of a ­uniform code is presented to Indians is mostly within the frame of ‘secularism’—in other words, as if it’s only to do with ‘minority appeasement’.

‘Secularism’ here would both connote the pure sense of laws being defined outside of religion, and the special Indian sense of the State allowing all religions to exist and carry on their customs unhindered. Not too many people, in ordinary times, think about civil codes, but it’s a subject that affects everyone. How a constitutional republic orients itself to the issue also affects everyone, right down to the last citizen. The problem is, India’s Constitution is a layered document. What it mandates in one section—say, as a desirable ideal in the directive principles—it puts constraints on ­elsewhere, for instance in Article 25, which guarantees the freedom to pursue any religion or tradition. There are other constraints. The Naga accord ­protects Naga customs, which for ­ano­ther instance, do not recognise ­divorce (Christian Nagas follow both custom and, when it comes to the courts, Christian-specific laws, where even the Catholics prefer to say ‘dissolution of marriage’ rather than recognise divorce as a right). Reform-minded thinkers, therefore, have a serious dichotomy to traverse here.

Another reason is obvious: the ­‘secularism’ frame, naturally, brings in politics. The one active voice standing for a Uniform Civil Code has been the BJP—it’s been one of their three key planks, besides Article 370 and Ayodhya. It has always remained in cold storage due to its inherently controversial nature, but now, with a decisive move on Article 370 under their belt and with the Ayodhya issue proceeding apace in the Supreme Court on a ­fast-track basis, everyone is asking: Will the UCC be next?

The BJP has also ­managed to nuance its narrative over the years, adding the idea of gender equity to its primary one of a unitary law. Gender rights came to the fore because of the way the Cong­ress mishandled the Shah Bano case in the 1980s—the founding act that bec­ame emblematic of its ‘appeasement politics’. But a Uniform Civil Code will not just be about Muslims, as it’s commonly perceived to be. Every community will be affected—including Hindus, who are actually a collage of communities that have no relation to each other. The ­matriliny among the Nairs of Kerala or the Bunts of Karnataka is closer to the Khasi customs of Megha­laya than it is to the north Indian idea of a daughter as a ‘paraya dhan’.

India’s constitutional ethos also ­protects plurality. Its objective is not to produce homogeneity. Uniformly distributed rights are desirable, yes. But no one will say the ‘Hindu Undivided Family’ (HUF), with the rather patriarchal notion of a ‘karta’ (the oldest male as its head, as codified at present), ­presents any equitable ideal. This is what roils the waters when it comes to whispers in the air that the UCC may be the next big item on the agenda for the Modi government. It’s not a single-point thing like annulling Article 370: too many legal issues, affecting every Indian, are ­entailed in this. The BJP’s ideological parent, the RSS, wouldn’t mind upping the ante, though. “It needs to be done anyway. Why not now?” says RSS ideologue Seshadri Chari (see interview).

Unlike the Ayodhya temple, which was adopted as a pet theme only in the 1980s, the demand for UCC goes a long way back, to the Jan Sangh days and its opposition to Nehru’s Hindu Code Bill (which was, to be fair, only incrementally reformist). But is there a serious move towards it? Well, the Delhi High Court is considering a PIL that seeks a direction to the Centre to convene a judicial commission or a high-level ­expert committee to draft a UCC. The petitioner, a BJP leader, has demanded a draft UCC in the next three months.

Such a draft, of a uniform family law applicable to all Indians, will be no easy task. But the government has to ­produce some sort of a blueprint and initiate public debate before taking the plunge, contends Faizan Mustafa, vice-chancellor of NALSAR University of Law, Hyderabad. “Article 44 of the Constitution says ‘the State shall make an endeavour’. It does not say ‘enact’. So where are the endeavours so far? Did we constitute any committee of experts or prepare any draft? Has the draft been debated anywhere or are we just going to do it the way the reorganisation bill of J&K was passed?” he asks.

Sceptics abound, and for various reasons. Will a UCC take positive features from each personal law? Will it be an egalitarian law and free of religion? Or will it have a majoritarian shade? BJP MP and lawyer Meenakshi Lekhi feels that if people can follow uniform criminal laws, then they should adapt to comprehensive family laws too. Lekhi, who has been a part of many law commission consultations on the subject, presents the UCC as a step towards ens­uring gender justice. But even she says, “I hav­en’t seen a draft yet. There have been repeated consultations in the law commission. But all governments have shied away from drafting one,” she says.

The ‘uniformity’, as she presents it, would entail primarily registration of marriages and an equitable law regarding divorce, maintenance and other iss­ues. India recognises the personal laws of five communities: Hindus ­(including Sikhs, Jains and Buddhists), Muslims, Christians, Jews and Parsis. “I would say, whether you marry through any rituals or religious ceremonies, every marriage should get registered. Matrimonial courts will take over if there’s any conflict. And laws on maintenance should be common to everyone,” says Lekhi.

It’s not as if the Modi government will turn the Hindu code into a UCC, Lekhi says. And anyway, over the years, Christian and other communities ­(exc­ept Muslims) have reformed their ­personal laws through the courts or ­internally, she adds. The BJP’s old sticking point comes through honestly in her words: “Regressive practices among other communities have slowly and gradually been addressed, ­except for Muslims. If Muslims who have ­migrated to Canada, Australia, the UK or any other country can follow the secular laws there, why can’t they do it here?” she asks.

Muslim leaders, no better guarantors of gender equity than Hindu ones, may not take that lying down. The passage of the Triple Talaq Bill, which addres­sed an area where the Muslim clerical est­ablishment had steadfastly refused any move to reform, has already touched a raw nerve. Now, All India Muslim Personal Law Board (AIMPLB) member Kamal Farooqi warns that there will be repercussions if efforts are made to tamper with other personal laws. Muslim personal laws derive from the Sharia: the community’s practices fall under the Sharia Act, 1937, the Dissolution of Muslim Marriage Act, 1939, and the Muslim Women Act, 1986. The colonial British regime had—in its canny, differential treatment in the pre-Partition years—chosen to leave Muslim laws untouched. A secular and free India, trying to ease the fears of a vast population of Indian Muslims stricken by Mohammed Jinnah’s prognosis that India would be a ‘Hindu’ country, had continued that hands-off policy. The right to live according to specific religious laws is a cornerstone of the Indian system, therefore. That is one of the things that gets disturbed with a UCC. “We will take preparatory action when the time comes. We have codified laws defined by the Quran. We don’t want any change in our laws. Let them change if they want, but at their peril,” says Farooqi.

A good civil code would be gender-just too, but women’s groups have a nuanced and sceptical view of the BJP’s moves in that direction. Feminist scholar Ritu Menon says they stand for a gender-just civil code since all personal laws are discriminatory in nature. “We have had many deliberations on this and proposed an optional civil code too. We have put forward suggestions on marriage, divorce and all aspects of family laws. If women want to be governed by the personal law of the particular religion, the choice should be theirs,” says Menon.

There will be political repercussions to a UCC, say many. Congress Rajya Sabha MP Husain Dalwai says the government will antagonise many sections of the public with such a step. “Some Hindu leaders say our personal laws should be nurtured by Manusmriti. They want to start a Manusmriti course in UP. Personal laws are different. It’s not only about Muslims, it’s also about Parsis, Christians and others,” says Dalwai, brother of radical Muslim reformer Hamid Dalwai who led the first street protest against the practice of triple talaq in Bombay.

History is rife with examples of how even some tall leaders in Congress protested fiercely, along with the Jan Sangh, when reforms were introduced in Hindu personal laws in the 1950s. The showdown between Nehru and Rajendra Prasad made headlines. The first Lok Sabha passed the Hindu Code Bills in 1955-56, in the form of four separate acts, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act. The ­resentment of the Hindu right wing, for the ‘exception’ that was made for the Muslim community, goes back to that—even though the new Hindu laws too were rather modest when seen in a reformist, gender equity light. The UCC became an angry slogan at that point, but legal experts point out that  a uniform law will conflict even with the codified Hindu laws, as women are still struggling to get their rights under those legislation. Feminist lawyer Flavia Agnes points out gaps in Hindu laws and asks why unjust provisions exist after more than six decades of  codification. “Will the BJP’s UCC alter the definition of HUF, which provides tax exe­mptions to Hindus in ­inheritance as compared to other communities who follow Indian Succession Act?” she asks. Those ­registered as HUF get a number of tax ­exemptions under various ­sections. “There are many discriminatory ­practices in the Hindu Succession Act and Marriage Act. Will the BJP scrap all that if a UCC is enacted? Statistics show bigamy is more prevalent among Hindus. Women in a polygamous relationship are not protected by law and the men get away. Will a UCC address all these issues?” asks Agnes. It took an amendment in Hindu Succession Act in 2005 to get daughters an equal share in family property. It was in 2005 that agricultural land also came under the purview of the Hindu Succession Act—there are millions of people affected by all these. Agnes’s NGO Majlis Law has been campaigning against a monochr­omatic idea of the UCC for many years: she feels that if the government foll­ows some of the constructive suggestions put forward by the 21st Law Commission, it can at least show its commitment towards a ­gender-just UCC.

The Recommendations

So what did the law commission, ­mandated to deliberate upon matters related to legal reform, say about a UCC? Well, its last statement on the subject, in 2018, said a UCC was neither desirable nor feasible at this stage. It prepared a ­‘consultation paper’ after collating ­suggestions from various communities and the general public on the feasibility of a UCC. Former law commission chief, Justice (retd) B.S. Chauhan, who steered that effort, calls it a working paper and not a ‘report’, though it’s given as such on its website. The government should start working on reforms of family laws across communities, says Chauhan. “Over 66,000 people responded to our ­questionnaire. We felt whatever best practices are available should be ­extended to other communities,” Chauhan tells Outlook, adding that it’s going to be a long process and the ­government should proceed carefully. Bringing in a unified law for tribals will be legally difficult, he adds. “How will you take away legislative powers from local ­bodies in the Northeast? Polygamy is a rule among the tribes in Jharkhand and Odisha. First, we need to remove ­disparities and educate people,” says Chauhan.

Mustafa too feels existing gaps in the realm of personal laws must be add­res­sed in a community-specific way first. “We need a committee of experts to look at all these questions first. They should create a  uniform law for one community: then try to create a code based on good provisions of different personal laws,” he says. For instance, in the Hindu Succession Act, a son and daughter get an equal share in property, which is an improvement on Muslim law that gives the daughter only half the share. However, the Hindu law allows a father to will his entire share in favour of his son, leaving nothing for the daughter. The Muslim law restricts a man from making a will of more than one-third of his property and he cannot make a will in favour of his male heir.

Legal experts point to India’s unique history of personal laws and common laws existing side by side, and argue for rights and gender-just laws—as enshrined in general laws such as the Dowry Prohibition Act, Section 125 CrPC, and the Domestic Violence Act—to be distributed across the board. Kirti Singh, women’s right lawyer and a specialist in family law,  says urgently needed reforms include a law ensuring the right to marital property, and legislation to stop honour killings. “We need a law to give the woman half the share of marital property after marriage. Now, if the woman is deserted, she is only entitled to maintenance. That’s also not ensured in most cases,” says Singh. A lot of that has to do with Hindu communities. What about the rest? The array of minority communities whose choices are protected under our Constitution? (For issues related to Muslims, read Indianising Muslims? by Hilal Ahmed, and the ­interview of Arif Moham­med Khan, a pro-UCC voice,) The others present as bewildering a variety. First, a state.

Will the Goa model work?

Goa is often heralded as a model state, the only one which has a Uniform Civil Code, so it’s interesting to look at its experience. Muslims, Hindus and Christians in the state are bound by the same family laws—which retained the 1867 Portugese civil code even after its merger with India in 1961. But Goa-based lawyer-activist Albertina Almeida says it doesn’t automatically ensure equality. “Uniformity in law does not necessarily mean there’s no discrimination. We have some provisions that are uniform in discrimination. The management of property is the privilege of the male spouse in Goa and it’s uniformly applicable to all communities,” says Almeida.

The Parsi Conundrum

If India adopts a UCC, the tiny community of Parsis will bear the brunt more than any others, say its leaders. The Parsis have a special set of rules for ­intestate deaths under Sections 50-56 of the Indian Succession Act, 1925. They also follow the Parsi Marriage and Divorce act, 1936, and Parsi Chief Matrimonial Courts are established as special courts. “Our divorces are heard in the high court in the presence of a jury,” says Mumbai-based advocate Homiar Vakil. Parsis can’t legally adopt children and if a woman marries outside the community, she is rendered an outcast. Unjust? Yes, but it’s a small community anxious about its identity. Says Vakil: “If they go for a UCC, mino­rity ­interests won’t be protected. It’s against Constitution. We don’t want reforms in our personal laws.”

The Sikh Question

The Sikh religion was ‘acknowledged’ ­legally during British rule; an Anand Marriage Act was passed in 1909. But post-Independence, the Constitution made the community a party to the Hindu Marriage Act, which became a bone of contention. Community leaders wanted their own legal framework, formally identified with Sikhism by name. It was only in 2012 that an amendment was passed in Parliament allowing state governments to frame rules for registration of marriages under the Anand Marriage Act. But a look at the customs prevalent in it will suffice to problematise the idea of a UCC. Levirate marriage is kosher in Sikhism: the brother of a deceased man is obliged to marry his brother’s widow (a practice it shares with the wider Jat community). Some people still believe it. How do you bring that under the ambit of a law? Would it be legal or illegal? And who decides? Another example is adoption of children by siblings in case they don’t have kids. How would you have laws for it?

Manish Tewari, Congress MP from Punjab, says he has frequently expressed his opposition to a UCC. We must not forget the fact that India is a diverse country, he says, adding that the BJP’s ally SAD should also clear its stand on the topic. Says Dr Manjit Singh Nijjar, professor of law at Punjabi University, Patiala: “The irritant for Sikhs in the present personal laws is the terminology. The Sikh personal laws fall under the ambit of the Hindu Marriage Act etc, ­although its definition mentions that it covers Jain, Sikh and Buddhist religions too. If that name is replaced by, say, Indian Marriage Act, it will not change anything for Sikhs. It would only resolve two major issues. One, a uniform law identified with the nation, and not religion, would give inclusivity to all religions, getting rid of the objectionable name. They would have their own identities. Secondly, it will bring uniformity.”

The Christian Position(s)

When it comes to the Church, it’s again an interesting plurality of views that presents itself. To begin with, it’s not one Church. Addressing a press gathering on July 3, 2016, Cardinal George Alen­cherry, head of the influential Syro-Malabar Catholic Church in Kerala, waded into the heated national debate over the UCC. His remarks, perhaps surprising to some, included an expres­sion of hope that “the UCC would be useful for strengthening the unity of the ­country and its people”. It was widely ­reported as an endorse­ment of the very idea itself. The optics were perfect for sensationalist headlines. In the vein of ‘Christians are pro-UCC, unlike Mus­lims’. Of course, what got ­downplayed was Cardinal Alencherry’s stated wish for dialogue and consensus-building.

Perhaps mindful of the media and ­social media firestorm in the wake of that story, Cardinal Baselios Cleemis, head of the Syro-Malankara Catholic Church, came out with a statement a few days later that the unity and plurality of India was sacrosanct. He noted that “all discussions on the UCC must be done taking into account the freedom ensured by the Constitution and without hurting the sentiments of various religious groups”. Both statements, according to Kerala Catholic Bishops Council spokesperson Father Varghese Vallikkatt, were in keeping with the general consensus reached after “leadership-level” deliberations held that month by the KCBC.

Go, figure. It’s a cautious, but essential caveat that Fr Vallikkatt offers. “If the UCC is implemented, we’ll welcome it as a matter of principle…you can’t ­oppose something given in the Consti­tution. We consider the Constitution as a holy book. You can’t uphold the Constitution and at the same time ­oppose something in it. At the same time, since the UCC affects everyone, all communities, it needs to be taken up in a spirit of consensus. No community should feel they are targets or that something is being imposed on them. It can cause apprehensions among minority communities. With any ­legislation that affects religious practices and community traditions, the state should ­exercise all due restraint and act with an enlightened understanding,” he says.

He cites Sabarimala as an example. So does Metropolitan Kuriakose Mor Theophilose, spokesperson for the Jacobite Syrian Christian Church, pointing to it as proof of how emotive legislation and judgments on faith-based practices can be. “We understand how people can be affected when faith is wounded. We understand the pain of the Hindu faithful who were hurt. There needs to be clarity on how a UCC will affect personal laws, which are closely related to faith and religious practices. Marriage for us is a sacrament, whereas it is a contract in some other faiths. That diversity must be preserved,” he adds. The Jacobite Church had appointed a committee of clergymen and lay legal experts earlier this year to study the implications of the UCC. It called for balancing the “integrity and unity” of the country with “the need to preserve the cultural and religious diversity and fundamental freedoms”. He adds: “A UCC should not be the reflection of a religious or political agenda and should not lead to a totalitarian climate.”

The apprehensions were stated, equally subtly, after conclave between the Catholic Bishops Conference of India (CBCI)—of which the KCBC is a state-level representative—and the National Council of Churches in India (NCCI) in November 2016, following the 21st Law Commission’s (October 2016) ­appeal for responses. A joint letter to Justice Chauhan both emphasised the primacy of the Constitution and the protection afforded by the Freedom of Religion, rejecting the questionnaire inc­luded in the commission’s appeal as not “reflective of the sentiment” of inclusivity and fairness. And a March 2017 consultation by the National United Christian Forum (NUCF) called the not­ion of a UCC “antithetical to the very concept of India”. It included a significant call-to-action though: a recommendation to the churches to “introspect how the rights of women, young people and vulnerable communities can be protected within the Chu­rch”. That spoke to “the disparity experienced by certain sections of the Christian community”. Its reco­mmendations to the government, however, took a cautious line: “Gender equality and reform in personal laws is a separate matter and must be dealt with due consultation with the concerned religious communities.” Introspection and change from within would be the best solution, says Fr Vallikkatt. “We have a strong stand about the equality and empowerment of women, as indeed the equality of all human beings. There may have been backwardness in some cases, but at least from the Mary Roy case onwards, we ­haven’t seen any specific questions with regard to the equality of women. Where there is a need for reform, it would be for the best if there is an opportunity for the community to sit together and find a solution. The government should promote that sort of dialogue,” he says. Mary Roy, writer Arundhati Roy’s mother, fought a landmark case that brought a measure of gender equity to Christian inheritance laws.

Internal reform. The lack of that is what is often cited about the Muslim community, and rightly. Sabarimala only made it clear how patriarchal customs are rather too universal. Advocate Sebastian Champappilly, whose writ­ings on Christian personal laws are oft-­referenced, calls for “a gradualistic app­roach”. He says the emphasis should be on social justice, not uniformity. “And gender justice is more a constitutional mandate under Article 14 than under Article 44,” he adds, ref­erring to the laws for equality and the Directive Principles, which are a kind of a wish-list (which ­includes, inter alia, a wish for prohibition). A “more secular law in tune with the times and in accord with the constitutional mandate” is what he wants to see. Most fair-minded Indians would concur. Also, this caveat: “Codification does not necessarily mean unification. It can and should take in and hold the div­ersity in matters of religion and region.” Diverse needs have to be balanced here, and good, thoughtful dialogue involving everyone is the only thing that can manage it.“Time will have its own impact in the evolution of a Uniform Civil Code as envisaged in the Constitution,” he said. And only introspection makes for good dialogue, on all sides.

With inputs from Jyotika Sood, and Siddharth Premkumar in Thiruvananthapuram