‘With UCC, The State Has Become A Father Figure That Sanctions Who We Love’

On February 7, the Uttarakhand government made history by passing the controversial Uniform Civil Code (UCC), making it the first state in India to adopt the code amid Opposition protest. It’s likely that other states in India will follow suit – Rajasthan has already said that it wants to introduce a UCC bill in the next assembly session. One of the most controversial tenets of the code is the mandatory registration of “live-in” relationships involving a man and a woman, failing which they will be fined a sum of Rs 25,000 or jailed for three months. Its other controversial tenets include a ban on polygamy and child marriages as well as a ban on marriages and divorce practices that single out the Muslim community.

The UCC, being positioned as a tool to “save” women, especially Muslim women from discrimination, has been rejected by Uttarakhand’s women’s groups who call the code discriminatory and a tool to moral police women’s autonomy. In the past too, feminist groups and activists have opposed the UCC and have said the best route to ensure gender-justice is to instead amend personal laws.

It is important to note here that the debate around the UCC has predominantly been tied to the question of Muslim women’s rights. It is based on the presumption that Hindu law is already progressive and needs no reform. From Shah Bano to Shayara Bano, everytime the clamour for UCC has emerged in the political landscape of India, it has been around the question of how practices such as nikah halala, triple talaq and polygamy have been oppressing Muslim women.

However, criminalising triple talaq has harmed, not helped, Muslim women, it has been argued. Men are now deserting their wives instead of divorcing them to avoid going to jail. Furthermore, data from the National Health and Family Survey-5 (NHFS) shows that there is not much difference in the prevalence of polygamy among Hindus and Muslims.

Muslim personal laws are not the only laws which continue to be discriminatory to women. “Most family laws are unequal, because the conception of a family according to law is that of a patrilineal, and patrilocal family,” says queer feminist activist Chayanika Shah. For instance, under the Hindu Succession Act, if a man dies and his wife has predeceased him and they don’t have children, then his property goes to his family. But if a woman dies and her husband has died earlier and they do not have children, then her property does not go to her family but goes to her husband’s relatives. Additionally, as reported by Behanbox earlier, such laws continue to be exclusionary of queer and trans people, especially when it comes to inheritance laws.

Not only this, Section 9 of the Hindu Marriage Act, which is “Restitution of Conjugal Rights”, provides that when either husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the other party may apply to the court for restitution of conjugal rights. This continues to disfavour women in abusive marriages. Which is why in the feminist movement, reforming family law to make it more gender-just has been a demand for a long time.

Mary Roy fought a long legal battle to ensure equal property rights for women from Kerala’s Syrian Christian families; women from the Ho tribe of the erstwhile Singhbhum district of Bihar fought community panchayats and customary laws for their right to property. Muslim women too have been a part of the struggle: Shah Bano demanded maintenance from her husband, opening up a discussion on the need for reform in Muslim personal laws. In fact, Muslim women have been demanding gender-just laws for decades, writes 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. 

Behanbox spoke to feminist legal researcher Surbhi Karwa, who is of the view that the process of passing the UCC must disturb us as much as its content.

What are your concerns about the process of the passage of the UCC in Uttarakhand?

The Uttarakhand UCC came after a five-member committee headed by the former judge of the Supreme Court Justice Ranjana Prakash Desai submitted its report on the UCC to the Uttarakhand Chief Minister Pushkar Singh Dhami on February 2, 2024. It was tabled in the Uttarakhand Assembly on February 6 and was passed the next day. Essentially a 192- page long document that overhauls the entire family law in the state was passed in a span of six days, without any chance for the Opposition or civil society to raise any questions and objections. This is a worrisome pattern both at the Centre and state level. In the Uttarakhand Assembly, the Opposition had demanded that the Bill should be sent to the House committee. But that was not paid attention to. Laws are increasingly being passed by an element of ‘surprise’. This bill has to be seen in the larger trend of hollowing out of the legislative process and its consequences for feminist movement. 

Such a swift process has resulted in exclusion of feminist movement(s) from the democratic process.  Elected bodies, Parliament and state legislatures, have had a long history of the involvement of feminist movement(s) in gender-related laws and reforms. House Committees often would consult with women’s groups. One saw a contestation of  different ideas of feminism through these committees. 

This has particular consequences in the UCC debate. Many feminist scholars and activists like Flavia Agnes have argued for a bottom-up approach in drafting a UCC, where women’s lived realities and their religious, social and political identities are taken into account. 

Thus, the process of making the UCC is as important as the content of the legislation. Whose voices are given space? Who has the agency in this process? Where is the space for feminist movement(s)’ engagement with the State and elected bodies? Historically, the UCC issue has been looked at through various lenses – the group rights lens, the secularism lens. Now the space for debate is gone. All these questions raise a deep concern for the feminist movement(s).

Can you take us through some of the debates around the UCC right from the days of the Constituent Assembly?

The history of the debate over this provision is old. In the Constituent Assembly, women members had demanded a common civil code. In fact, some of the women members wanted such a code to be part of fundamental rights and not merely the unenforceable Directive Principles of State Policy. Achyut Chetan, in his recent book Founding Mothers of the Indian Republic, has observed that there was an element of choice and consent in the debates on UCC in assembly. Under Section 390 of the Uttarakhand law,  this choice between plurality of laws is gone. The new UCC pits two rights – the right to be part of a community and religious identity and right to equality – against each other rather than having a negotiated space for both. 

Further, there is a presumption here that uniform means equal. But uniformity is not equality. You can be uniformly unequal. We can be uniform in the worst situation. For instance, take Section 21 of the Uttarakhand UCC. This provision has retained the deeply problematic provision on restitution of conjugal rights. In fact, it verbatim copies the provision from the Hindu Marriage Act, 1955. What was a bad law so far for Hindu women is now uniformly a bad law for everyone. This is a wrong notion of equality. Equality has to be substantive. 

By the 1970s and 80s, the feminist movement had realised that uniformity may not essentially lead to equality and thus we saw a shift in the debate on UCC. The desirability of such a uniform code itself was questioned by feminist movement(s). That debate of voluntariness and choice between plural laws that has existed in some form since the Constituent Assembly days has now been sidelined. 

Implicit in this notion of uniformity is the singling out of Muslim law. Flavia Agnes has written quite extensively about this flawed presumption that it is the Muslim law alone  which needs to be reformed and that Hindu women have already gotten equality. The Chief Minister in his speech particularly highlighted Muslim law related cases. 

What does this push for UCC tell you about the specific ideological nature of the State, both at the Centre and in states? 

I think there is a weaponisation of the language of gender and women’s rights by the current state apparatus without actually advancing equal rights in a real substantive sense. This is evident in the swift passage of the code, without giving voice and space to women themselves. Instead laws are being made in their name. 

Let’s look at the registration process for live-in relationships. You have to read these specific provisions in conjunction with the other existing laws. Feminist scholars like Pratiksha Baxi in their analysis have shown that charges related to kidnapping, theft, and even rape are initiated by family members to harras couples who marry or are in relationship without permission of their family. Since 2019, a range of states have passed stringent and completely vague anti-conversion laws (the so-called ‘love jihad’ laws). And now this. Put together, all these laws criminalise the choice of people to marry or enter into relationships, specifically interfaith and inter-caste marriages. Already 95% couples in India marry within their caste and faith, a data point that should disturb us. In a  society where it is already very hard to marry or be in a relationship outside the norm, the State is making the matters worse. And these provisions have consequences for most basic rights — renting a place, accessing state services, hospital support, access to public spaces, access to reproductive health. The consequences are staggering. 

The State has now become a father figure that decides for us who we should marry and who we should love. 

The State and its acolytes argue that the UCC in Uttarakhand gives legal sanction to live-in relationships and in many ways ensures the rights of women especially in inheritance. How would you read that?

There has been legal recognition to live in relationships in reference to the Protection of Women from Domestic Violence Act 2005. There is also an assumption in favour of marriage in the Indian Evidence Act, 1872. 

It is a misnomer to call this ‘registration of live-in relationships’. As per section 381(2), the process is a summary inquiry. And might I add, a summary inquiry of criminal nature (even though state it not terming it as such). Let’s look at the steps of the so-called registration process. First, the couple must give a statement of live-in relationship in a prescribed format. As of now, we don’t know what all information can be asked in the statement of live-in relationship. Would it ask about the caste of parties? The religion of parties? Would it ask the house address of their respective families? Then, the Registrar will conduct an inquiry and satisfy themselves that the live-in relationship meets the conditions prescribed in the law. In conducting the inquiry, the Registrar has power to summon partners or any person for verification, and call for additional information and evidence. The Registrar then can either enter such a statement of live-in relationship or refuse it. If this is merely a registration process then why should there be an inquiry? Why should the Registrar have power to accept or refuse the statement of live-in relationship? Why should the Registrar have power to summon and invite additional information? Who is this third person that the Registrar can summon and most importantly why? And finally, the Registrar will also forward the statement of live-in relationship to the police station for record. If any information is found incorrect, the police can take appropriate action. If this is merely a registration process then why is police involved at all in what should essentially be a civil matter? Thus, it is misleading to term it as a registration or recognition process. It is an institutionalised approval mechanism. It is mandatory. If you don’t follow it, there is criminal liability. 

Look at the difference between this registration process and the registration process for marriages under the code. In the marriage registration process, there is a notice period within which if a registration application is not contested, it is deemed as registered. There is also a provision to appeal at two levels if the couple are not satisfied with the Registrar’s decision to not register a marriage. And there is no police involved. So the claim that the State is treating live-in relationships at par with marriage is farce. Instead, it entrenches a hierarchy of relationships. 

Further, the registrar can also issue notice for registration of live-in relationship if any couple fails to register it as per Section 386. This can be done through the own motion of the Registrar or on the receipt of complaint or information. This provision sanctions an insidious, Orwellian surveillance structure giving anyone the power to complain against relationships they do not like. This disproportionately harms inter-caste, interfaith and other non hetero-normative relationships.

Where do we place UCC vis a vis the recent position of the Indian Supreme Court on gender equality? 

In my opinion, the registration process is unconstitutional for the violation of autonomy and equality principles. 

Historically, the concept of privacy has been used against women and to protect property owning male heads of the family. Violence against women has been dismissed as ‘private matters’.  The Supreme Court, however, in the recent past has articulated a decisional autonomy and choice oriented framework of privacy. Under this new articulation, decisional autonomy and choice are the heart of life and liberty rights. The registration of live-in provision violates these constitutional principles.

Similarly, in the recent past, the conception of equality has moved towards a substantive notion. The Supreme Court in a range of judgement has held that equality does not mean merely a formal declaration. Equality doesn’t have to be sameness and uniformity. Equality has to be the question of structure, about who is getting subordinated and who is being stereotyped. The Uttarakhand UCC stereotypes women as ‘incapable of making decisions’ and violates equality. Section 385 of the code provides that live-in relationships involving partners below 21 years should be informed to parents. States and parents thus are joining together in restricting choice. 

Here, however, I want to point out that the legacy of the Supreme Court in furthering choice and equality has been ambivalent. For one, it has refused to recognize same sex marriages. But apart from that, the Indian Supreme Court has also played a role in positioning UCC as a solution to all gender questions in personal laws. A one-stop solution of a kind. But we really have to think if such hurriedly passed and poorly drafted laws further women’s interest in any way. 

The experience of the Special Marriage Act, 1954 should warn us. Under the Special Marriage Act, for registration of marriages similar conditions were introduced. The Registrar under this act could invite objections through a public notice process, summon persons, collect evidence and even send notice to the families of the parties, the police station of the locality. This essentially made it impossible to marry under the act. These provisions were challenged in the marriage equality petition in the Supreme Court. But the Supreme Court failed to hear these. 

[Introduction by Ankita Dhar Karmakar]