The Uniform Civil Code (GS Paper 2, Governance)
Context:
- The Uniform Civil Code (UCC) has been one of the three long-standing campaign promises of the Bharatiya Janata Party (BJP) along with the construction of the Ram Mandir at the erstwhile disputed site in Ayodhya, as also the revocation of Article 370 that granted special status to Jammu and Kashmir.
- Now that the last two goals have been met, the spotlight will move sooner than later, much before the 2024 general elections, to the UCC.
Parliamentary Committee:
- However, the most recent stand of the government as conveyed to the parliamentary committee is confusing, as it states that a review of personal laws will only be looked into if “a sizeable majority of the population seeks amendments to existing laws, in order to enact new laws through Parliament.”
- The government has now asked the 21st Law Commission to examine and make fresh recommendations to the UCC.
UCC by Indian States:
- Till such time a consensus does not emerge on the passage of a pan-India law, the state governments are free to bring in a state law, as family and succession laws come under the concurrent jurisdiction of Centre and states.
- Already, BJP-ruled states like Uttar Pradesh, Uttarakhand, Himachal Pradesh and Madhya Pradesh have been independently talking up the UCC as they are free to undertake judicial reforms.
- It already exists in Goa, as the state inherited the Portuguese Civil Code in 1867, which is still applicable after that state joined the Indian Union in 1961.
- In other states, different personal laws apply to different communities, with the Hindu Marriage Act of 1955 being applicable to Hindus, Jain and Sikhs; the Christian Marriage Act to Christians, while the Muslim Personal Law (Shariat Application) applies to Muslims in personal matters.
What is UCC?
- The UCC resonates with ‘one country one rule’, and once passed, would be applicable uniformly across all religious communities.
- The term, ‘Uniform Civil Code is explicitly mentioned in Part 4 of the Indian Constitution, wherein Article 44 proclaims: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
- The UCC is based on the premise that there is no connection between religion and the temporal in a modern civilisation, and therefore all sections of society, irrespective of personal faith, shall be treated equally in accordance with a national civil code.
- Such a universal code shall be applicable uniformly on matters related to marriage, divorce, alimony, maintenance, inheritance, adoption and succession of property rights.
Historical background:
- The debate for a UCC dates back to the colonial era, when criminal laws were codified and were universalised for the entire country, but personal laws continued to be governed by separate codes of different castes, religions and communities, as ‘The Queen’s 1859 Proclamation’ promised absolute abstinence and non-interference in religious matters.
- In 1840, on the basis of the Lex Loci report, the British government established uniform laws for crimes, evidence and contracts, but personal laws of Hindus and Muslims were intentionally left to their discretion.
Constituent Assembly:
- While in Part IV, Article 44 of the Constitution stated that “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”, Article 37 of the Constitution itself made it clear the Directive Principles of State Policy “shall not be enforceable by any court”, thereby not making this implementation mandatory.
- During the drafting of the Constitution while Dr BR Ambedkar pushed for a UCC, the provision was left optional due to opposition from religious fundamentalists, and a lack of awareness among the masses.
Evolving Stance:
- There has been an evolving stance of both the citizens and the governments towards the UCC over the past 75 years. Since 1991, regimes prior to the Modi government resisted interference in personal laws of minorities, unless initiatives for change came from a sizeable cross-section of such communities.
- Way back in the 1950s, when the Hindu Code Bill was being introduced, renowned industrialist Ramkrishna Dalmia reflected the vox populi of the majority community through his paper the Times of India.
- He vehemently opposed the bill, saying that it should not be applicable to Hindus exclusively, but be inclusive across all sects, including Muslims, Sikhs, Jains and Parsis.
- The ongoing debate for a UCC thus spills across three eras: The British colonial era, the Nehruvian/Congress era, and the current era. Cut to 2022, this resistance to a common civil code still persists amongst ultra-secularists, leftists and the minority communities.
Why Muslim women are more disproportionately impacted?
- However, the most adversely impacted for not implementing the UCC are Muslim women, whereas Hindu women gained parity through the 2005 amendment to Hindu Succession Act, granting the right to Hindu daughters to have a share in coparcenary property.
- Unfortunately, Muslim women have not been similarly empowered with regard to personal laws like marriage, divorce, maintenance, inheritance, succession, guardianship and custody matters.
- Although a progressive change in the position of Muslim women has occurred through the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalised “Triple Talaq”, more laws need to be modernised to ensure empowerment of Muslim women, which has long been denied.
- When the Constitution of India came into force, Hindus, as well as Muslims, were governed by their personal laws. Under the Constitution, it was naturally imagined that to further the aim of secularity, all personal laws would be codified together, so that the Hindu Code Bill and the Muslim Code Bill would come together in the form of a UCC.
Why the need to de-politicise UCC?
- In a progressive and mature 21st century democracy, as we celebrate our 75th year of Independence, it is time to depoliticise the century-old status that has persisted around the viability and enactment of the Uniform Civil Code.
- It is time for women to have equal access to the Ease of Justice and Equity when it comes to inheritance, divorce, marriage or ownership laws, which are as vital and fundamental to governance as delivering on the Ease of Living or Ease of Doing Business for all citizens.
- It is time to upgrade civil and personal laws and dispense with medieval, parochial tenets to ensure gender parity in all spheres of justice, liberty, marriage, life and work.
- As per the Global Gender Gap Index 2022 released by the World Economic Forum, India is tagged ‘gender-unequal’ and ranked just a notch above Afghanistan, Iran and Pakistan, with labour force participation of women being limited to 23.6 percent.
- While this data point may not be directly connected to the UCC, but gender inequalities financially and legally are deeply rooted in patriarchal orthodoxy.
Way Forward:
- The task at hand remains onerous for lawmakers to evolve a consensus towards homogeneity to legislate on the UCC amidst a heterogeneous, diverse and pluralistic polity.
- But social change and transition towards mainstreaming women, and a shift towards a more equal society can only commence with the conferment of legal rights.
- Should the UCC be passed, it will subsume existing privacy laws that exist in silos, and which are based on religion or caste. This is an opportunity that should not be missed before the 2024 general elections.
