The Uniform Civil Code

Uniformity or Diversity?

In a recent interview with Times Now, notable lawyer and politician Kapil Sibal dismissed the ongoing Uniform Civil Code debate as a 'thoughtless exercise'. Contrary to popular opinion, this is perhaps the most fitting description of what can now be called a pandemonium that surrounds the debate.

It is imperative we first delve into what even started this whole debate. In order to understand its roots of it, we have to go back to one of Dr Babasaheb Ambedkar's lesser-known works, the Hindu Code Bill.

The Hindu Code Bill of 1951 is a consequential element of the ongoing debate. This was the first micro-step towards uniform laws for a set of religions though having its own set of limitations.

Objectively speaking, this Bill has, since its introduction, been a double-edged sword. It proposed to outlaw polygamy with the underlying assumption that progressive society is monogamous, granted women the right to property and divorce, amended inheritance laws, and introduced provisions on inter-caste marriage.

Progressive for its time, the bill was a complete exodus from the customs under Hindu uncodified law that degraded women for centuries. Mitakshra and Dayabhanga were some of the few practices that prevailed until then. Mitakshra means shared ownership of property by only a lineage of men in the family.

Although Dayabhanga allowed women to inherit property, it was degrading to the extent that there was discrimination on the basis of the woman's marital status and whether or not she had children. The code and its subsequent amendments eradicated such practices and have since been the cornerstone of reform in Hindu Law as we know it today.

On the contrary, this bill was met with harsh criticism from fundamentalist organisations like the Hindu Mahasabha and Rashtriya Swayamsevak Sangh. They argued that such a bill destroys the fabric of Hindu Society because of its interference with custom. The bill neither addressed nor reformed any social injustice that was prevalent in Muslim personal law. The idea of reforming only a select set of religions while turning a blind eye towards social injustices of other religions undermined the essence of secularism that Nehru himself advocated forever so fondly.

Interestingly, there exists little to no difference between the current arguments of the All India Muslim Personal Law Board (AIMPLB) against Modi's UCC and the Sangh Parivar’s opposition to the Hindu Code Bill in 1948-49.

Over the years, this Republic has seen some very progressive judgements concerning uniform laws. In today's India, a Muslim woman has the right to maintenance just as equal as any Hindu woman, courtesy of the historic Shah Bano case. In spite of the Rajiv Gandhi administration's effort to undermine the judgement to appease a particular vote bank, the rule of law so established has prevailed. Furthermore, in 1999, the Supreme Court struck down a provision in the Hindu Minority and guardianship act 1956 which codified the preferential right of a father over a mother stating, "Father cannot ascribed to be preferential right over the mother in guardianship." However, there still exist derogatory barriers in codified law. For instance, even after the 'liberal' amendment to the Hindu Marriage Act in 2005, the law still considers the marital status of a woman when it comes to matters of inheritance. In addition to this, in Muslim personal law, the age of consent is still not codified - a very daunting drawback. Even matters of inheritance are by and large in favour of men owing to the fact that there is no equal inheritance system in Muslim personal law.

The lack of any proposal by the Government on the matter has only created an air of speculation which is now subject to debate. Therefore, all arguments for and against the code remain a thoughtless exercise. The question remains: What is to be uniformed?

With personal laws that concern marriage, divorce and succession makes it an all the more complex matter to legislate upon. It is important to recall the report of the 21st Law Comission where it concluded that the Uniform Civil Code is "neither necessary not desirable at this stage."

On one hand, numerous personal laws that call for numerous different precedents seem prima facie overburdening on our legal system. But on the other, refining these laws according to this day and age might be the most apt measure.

In a country as diverse as ours, where tribals and tribal areas are given protection from most laws that apply to the mainland, how is this one going to be any different? How then is it still uniform? In fact, the idea of a UCC under the ruling BJP ceased to exist after Home Minister Amit Shah assured the tribals of Nagaland and Schedule 5 areas that they will be exempted from the Uniform Civil Code.

From the scheduled areas of Chhatisgarh to a large chunk of the North East, Customary law has prevailed for centuries, much before colonialism. Are centuries old customary laws going to be compromised to cater to a political party's election manifesto?

Another interesting aspect of this debate is the question of sagotra marriages. Avunculate (uncle-niece) marriages as well as cousin marriages are prevalent in the Southern Dravidians States (with the exception of Kerala). This is because these marriages are covered under the custom of those communities and therefore stand exempted from section 5 of the Hindu Marriage Act. So, is the government planning on legalising sagotra marriages or yet again exempt certain communities, which again defeats the purpose of uniformity?

The BJP had long struggled to be relevant up until 1989 when they chose to pursue the issue of Ram Janmabhoomi. Ever since, the BJP has exploited numerous issues ranging from Article 370 to the Uniform Civil Code in both it's 2014 and 2019 election campaign.

Similarly, The UCC is proving to be one such instrument the BJP is exploiting to salvage its relevance through widespread polarization for electoral benefit ahead of the 2024 General Election.

Madhav Sadashiv Golwalkar, one of the defining historical figures of the RSS, the BJP's parent organisation, had once stood in mighty opposition to the idea of a Uniform Civil Code. Not only did he wholly oppose it but also termed it 'unnatural' and "against India's diversity". If only the modern day Sanghi would unclog his ear and listen to what their Guruji had to say back then.

From a legal sense it is going to be cumbersome task to legislate upon matters that concern a variety of personal laws and call for their uniformity. Furthermore, some laws, like the Muslim personal law to this day lies largely uncodified. The government to this day has not spoken one word as to how they plan on uniforming laws that lie uncodified. Custom, under Article 13(3), is law and is one factor that has to be dealt with the utmost sensitivity whilst any and all legislation.

Furthermore, what is to be done about Hindu Undivided Families? Is the government, under the premise of uniformity, going to strip the legal entity status of all HUFs? It is important to note that some of the most wealthy business families in the country are registered as HUF. Of late, it is being heavily exploited as a tool to avoid hefty tax liability. The question of the existence of HUF post UCC is something the government has chosen to avoid.

The term of India's 22nd law commission has been extended up to August 24th by the Prime Minister. The commission is tasked with releasing a final report on UCC by the end of the term which just so coincides with the general election. Whether or not this is a coincidence is up to the general public to decode.

It's about time Mr. Modi acknowledges the fact that uniformity can be brought about without the need for what he likes to call a 'Uniform' Civil Code. Existing personal laws can be made gender just. The desired result can be achieved through amending derogatory personal laws that override fundamental rights in today's day and age. National Interest and individuals' right to dignity are both equally important and one mustn't negate the other but complement it. Article By:

Aryan Rakhe

(Guest Writer, GLC Mumbai)

Design By:

Soham Agrawal

(Managing Director, TAO)