Why The Uniform Civil Code Has Become A Polarising Idea
The debate around the UCC goes back to colonial times. Here is an explainer of how the idea has evolved over time
The push by the ruling Bharatiya Janata Party (BJP) to enforce a Uniform Civil Code (UCC) in India has reignited the seven-decade long debate over the rights of minority communities to practise their distinct socio-cultural laws, against a call for ‘one nation, one law’.
This push comes just ahead of the assembly elections scheduled in Chhattisgarh, Madhya Pradesh, Mizoram, Rajasthan and Telangana and the 2024 General Elections and is being criticised as a political move to pander to majoritarian sentiments.
The UCC seeks to formulate a code of personal laws for people of all religions that include aspects of inheritance, marriage, divorce, succession, maintenance, and adoption. This means that it will replace the current personal laws of various communities that are governed by their religious tenets.
The 22nd Law Commission on June 14, 2023 issued a notification seeking views from religious and other organisations on the UCC within a month’s time. So far the commission has received over 5 million responses. Just a week later, Prime Minister Narendra Modi addressing BJP’s booth workers in Bhopal pushed for an UCC, asking how the country could not run on “separate laws for separate communities”. However, the push for UCC has been building since the BJP came to power in 2014. In its manifesto it pledged to legislate a UCC, which the party reiterated again in its 2019 manifesto.
The last time the Law Commission deliberated on this topic was in 2018, right before the 2019 General Elections, when it released a consultation paper titled “Reform of Family Law”. It stated that the “formulation of a Uniform Civil Code (UCC) is neither necessary nor desirable at this stage”. It then argued for reform of family laws of every religion through amendments and codification so as to make them gender-just. In a public notice, the law panel stated: “Since more than three years have lapsed from the date of issuance of the said consultation paper, bearing in mind the relevance and importance of the subject and also the various court orders on the subject, the 22nd Law Commission of India considered it expedient to deliberate afresh over the subject”.
Personal laws do not apply to states that are governed by the Fifth and Sixth schedules of the Indian Constitution that provide for the administration of tribal areas in Assam, Meghalaya, Mizoram and Tripura, and in the rest of India, respectively.
Goa is the only state where a Uniform Civil Code is in practice. Its civil code is a Portuguese colonial era vestige that continued in India by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962. The new Indian Administration had ruled that “all laws in force immediately before the appointed day (the day Goa was liberated on December 19, 1961) in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent legislature or other competent authority.”
UCC has always been and continues to remain a highly divisive issue over which several minority communities and feminist groups have expressed reservations. What is its history and what are these reservations? Here are some answers.
Divided History
The debate around a UCC dates back to colonial India. Influenced by civil uniform codes drafted in European countries in the 19th and 20th century, the British published the Lex Loci Report of October 1840 that emphasised the need for uniformity in codification of Indian law related to crime, evidence and contract. However, it recommended that personal laws of Hindus and Muslims be kept outside of such codification.
This precedent then trickled down into the 1948 Constituent Assembly debates around the adoption of a UCC. Members of the Constituent Assembly remained divided on this: stalwarts like Muhammad Ismail, Naziruddin Ahmad, Mahboob Ali Baig Sahib Bahadur, Hussain Imam were all opposed to the UCC, arguing that personal laws were sacrosanct for every community and any changes in them would undermine the rights of minority communities and lead to disharmony. However, KM Munshi, Alladi Krishnawamy and BR Ambedkar defended the UCC on the grounds that it reinforced the idea of the nation’s unity, upheld its secular credentials, and safeguarded the rights of women who were discriminated against under personal laws.
At the end of the arguments, members voted overwhelmingly in favour of a Uniform Civil Code being part of the Constitution, but only under Article 44 of the Directive Principles, which are non-justiciable, meaning it cannot be enforced through a court of law.
Thus, the UCC became a deferred project that rears up in court declarations.
From Shah Bano to Shayara Bano
There have been many cases in the past that have reignited the discussion around UCC. Foremost among them are the cases of Shah Bano and Shayara Bano.
In 1985 Shah Bano, a Muslim woman abandoned by her husband after 43 years of marriage by triple talaq, approached the courts demanding maintenance from her husband. The Court ruled in her favour under the “maintenance of wives, children and parents” provision (Section 125) of the All India Criminal Code, which applies to all citizens irrespective of religion. The case proved to be a milestone as it surpassed the general practice of deciding cases on the basis of interpretation of personal law and also dwelt on the need to implement the UCC. It also took note of different personal laws and the need to recognise and address the issue of gender equality and perseverance in matters of religious principles.
The clamour for a UCC rose again in 2016 in the Shayara Bano case, popularly known as the Triple Talaq case. Shayara Bano, a young Muslim woman approached the Supreme Court to appeal her husband’s decision to divorce her by Talaq-e-biddat, whereby a Muslim man can divorce his wife upon uttering the word talaq or divorce thrice. The wife’s consent is not required here. The Court declared the practice unconstitutional by a majority vote of 3:2.
Though there are many aspects to the UCC, in media debates, it is almost invariably presented as a means to “save” Muslim women from discriminatory Islamic practices. Muslim feminists have argued against this stance, pointing out how the campaign is actually focused on strengthening Hindu majoritarianism.
For instance, criminalising Triple Talaq has harmed Muslim women more than helping them, it has been argued. Men are now deserting their wives instead of divorcing them to avoid going to jail.
Another study, by academics Pallavi Gupta, Banu Gökarıksel, Sara Smith, also points to this saviour narrative.
Amend Personal Laws
Muslim women and feminist movements have not always been opposed to the UCC. Muslim women have been fighting for gender-just laws since decades. In 1937, the All India Women’s Conference raised the demand for a UCC for all religious communities. This demand continued to be made by large sections of the women’s movement till the late 1980s. By the early 1990s, however, there was considerable rethinking on the issue.
Post the Shah Bano judgement and the Babri Masjid demolition, moves to reform personal laws came to be seen as anti-minority. While religious leaders within minority communities asserted their “right” to retain personal laws, Hindu-right wing groups appropriated the term “UCC” to further an anti-minority agenda, notes Sabah Khan, co-founder of Parcham Collective, an organisation working with youth towards justice and equity, and a member of the Muslim Women’s Rights Network.
Khan says that women’s groups continue to demand gender justice and reforms in the law but want the term “UCC” to be abandoned in favour of an Egalitarian Civil Code or Gender-Just Laws to differentiate their position from that of the Hindu right.
Feminists and experts now believe that the best route to ensure gender-just laws is to amend personal laws. However, in case such amendments and codification of laws cannot take place, then a UCC that reflects the lived realities of women across socio-economic divisions would be the best way to go forward, they say.
Other Concerns
The Fifth and Sixth schedules of the Indian Constitution exempts regions with tribal populations from falling under personal laws, as we said. So how will a UCC address the question of their customary laws and practices?
The Khasi Hills Autonomous District Council, a tribal council in Meghalaya has unanimously passed a resolution to oppose the implementation of the proposed UCC in areas within its jurisdiction. The Khasis are a matrilineal community, where the youngest daughter inherits property, and children carry the surname of their mothers. These distinct practices will be in jeopardy with a uniform code.
Further, customary laws of tribal communities in the rest of India (exempting Northeast) are safeguarded under Article 341 and 342. Fearing that a UCC will homogenise their communities, many tribal groups have opposed the UCC.
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