Will all cousins be allowed to marry, or nieces their maternal uncles? Or will that be banned for all in the new Uniform Civil Code (UCC), including those communities currently exempted from the Hindu Marriage Act’s ban on ‘sapinda’ marriages? Will we all have to follow Christian family law when we wish to divorce? Will rules from the Muslim personal code apply as regards inheritance and sharing of property with parents if one dies intestate or perhaps, Parsi rules? Will everyone be allowed to avail of the attractive tax benefits of the Hindu Undivided Family (HUF)? Or will that be abolished for all, uniformly? Will all Indians be forced to follow Santhal customs? Or Naga ones? (By the way, even the Code of Criminal Procedure, 1973 does not apply to Nagaland).
Nothing is known as there is no publicly available draft of a UCC being talked up by the BJP. What we know is that the Modi government dislikes diversity and sees diverse practices as a threat to the Indian Union. It said so in its affidavit to the Supreme Court in October 2022, in response to a petition on the UCC. The Union government said that citizens belonging to different religions and denominations adhering to different property and matrimonial laws was an “affront to the nation’s unity”. Prime Minister Narendra Modi last month too referred to “separate laws for separate communities” and said that the country could not run on a dual system. Oddly, this was not in some meeting or address on the subject, but while addressing booth-level workers of the BJP in Bhopal. It is clearly in an electoral context that the UCC is being referred to.
But this is where the catch is. The BJP may be picking on an electorally indigestible bone. The fact is that attempts to suddenly spring a UCC on all Hindus too would be a disaster. Maybe that is why there is no draft. In Uttarakhand, for example, where a committee has been constituted by the BJP state government under Justice (retd) Ranjana Desai, to work one out for the state, there have been 13 months of consultations, 38 public meetings, but no report yet.
The emphasis is on uniformity and not progressive or better or emancipatory. So, what or whose laws will be imposed on the whole nation?
Directive or principle?
While Article 44 of the Constitution – contained in Part IV, i.e. the Directive Principles of State Policy – speaks of a UCC, it is non-justiciable and just an ideal objective. The Directive Principles (Article 36 to 51) are violated with impunity and often by the state on a daily basis. Consider just Article 43A, on the same page as the UCC, which reads, “The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry.”
Coming back to Article 44, Dr B.R. Ambedkar had, in November 1948, envisaged a way around it: that a voluntary offer may be the way of bringing a consensus on such wide-ranging practices; “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 […] so that the fear which my friends have expressed here will be altogether nullified.”
In fact, there already is a Special Marriage Act, 1954, providing a legal umbrella for inter-religious, inter-caste marriages. In The Intimate State, Perveez Mody has studied the “protections (and obstructions) presented by the law to those who transform their new forms of intimacy into marriage in the eyes of the state”. A true progressive approach would be to expand the legal limits of how ‘relations of intimacy’ and the ‘family’ are thought of, ideally to break caste endogamy and perhaps even annihilate caste. India needs a civil code that is uniformly progressive, rather than uniformly regressive.
The BJP’s target may be Muslim but enough groups which are parts of the party’s electoral calculus – i.e. tribals, Goans, people in the north-eastern states, Sikhs, Parsis and Christians – have made their case and already want out of an unknown uniformity being sought to be imposed. This opposition will spell disaster for the BJP if it pursues the matter in an election year. Maybe that explains the chronology of Union home minister Amit Shah having assured a 12-member Nagaland government delegation, led by chief minister Neiphiu Rio, that the government is considering exempting Christians and some pockets of tribal areas from the scope of the proposed contentious UCC. The state government of Nagaland actually said so in an official press release on July 7. So, Schedule Six, the box for exceptions is already being carved up. Article 371 (A to J) mandates exceptions for regions and persons. So, once it is decided that there is a ‘uniform’, who will be exempted and who won’t?
Mechanics of it
The Law Commission is being relied upon as the nodal body to work on the UCC to prepare something the BJP wants. But the Law Commission has already said clearly in para 1.15 of a detailed report in 2018 that a UCC was “neither necessary nor desirable”. To cite the full sentence, “This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.” That is completely at variance with the ‘one size fits all’ being sought by a majoritarian government.
How much the BJP government cares for the sanctity of the Law Commission is clear from at least two facts.
First, it is disregarding the recommendations of its own appointees in the 21st Law Commission from 2018 saying the UCC is a no go and personal laws should just be urged to evolve out of bad practices.
Secondly, this government did not bother to appoint members to the 22nd Law Commission for years. The 22nd Law Commission was a ghost commission for nearly all of its three-year term. Notified on February 21, 2020, it was kept vacant for two years and nine months of its three-year term. A chairperson, Justice Rituraj Awasthi (retd), finally assumed office on November 9, 2022. Its term has now been extended till August, 2024.
When the 21st Law Commission put forth its questionnaire in the public domain in November 2016, it received over 75,378 responses. This time, the 22nd Law Commission has to deal with 46 lakh responses. What is the process for sifting through this? What is the process of reinventing the UCC wheel? Nothing is known.
Progressive civil code
In 2017, a citizen’s group comprising activist Bezwada Wilson, lawyer Dushyant, actor Gul Panag, academic and author Mukul Kesavan, author Nilanjana Roy, scholar S. Irfan Habib, Major General S. Vombetkere (retd) and musician T.M. Krishna presented a proposal of a model progressive Uniform Civil Code (UCC) to Justice B.S. Chauhan, chairman of the Law Commission. They conceived of the abolition of the HUF, gender-neutral marriage and inheritance laws, which would entitle all children – biological, adopted, surrogate, ‘legitimate’ and ‘illegitimate’ – to inherit property. In a supporting letter, former attorney general Soli J. Sorabjee, who forwarded the draft code to Justice Chauhan, said, “I want to join those who wish to ensure that any step ahead to bring everyone on the same page must be progressive and enlightened.” Sorabjee added that the Law Commissions recommendations on a UCC should be “far-sighted and progressive”.
The root of the problem is how Modi and his government view diversity. A good talking point for foreign trips, it came up in Paris too on Thursday. But it is an “affront to the nation’s unity” for domestic business.
Like the many species of flora and fauna in the Amazon forest, the diversity of India is a fact. But inclusiveness or wanting a healthy and plural pastiche is an act, which speaks to what a society wants to do with its diversity. As a modern democracy in 1950, India was anxious to embrace it. The same cannot be said for India 75 years on.
The problem with wanting a UCC is the obsession with the ‘U’. 2023 calls for a Progressive or a P, a PCC. But a majoritarian BJP is keen on just clinging onto anything it hopes will fire its base. It is evident that the purpose is to indulge in performative exclusion, in this case, to tell its base that it has obliterated Muslim Personal Law.
The BJP would also like to say it has been able to impose the ‘uniformity’ of Hindu Law but there is no one Hindu law which will be acceptable across the country to all Hindus and non-Hindus (i.e., not just Muslims but Christians, Parsis, Tribals, Sikhs etc.) Any exercise that dives into the details, even if a stitched-up quickie Code, will be a Pandora’s box, full of elements unacceptable to everyone concerned.
Hence the UCC as a concrete proposal is AWOL. Try persuading any Hindu family in the PM’s constituency in UP that it is ok to marry a mama or first-cousin. And try persuading a Hindu family in the external affairs minister’s home state of Tamil Nadu to stop doing that.