REPLUG | Why BJP’s Uniform Civil Code can never apply uniformly to all Indians

On December 9, despite vociferous protests by the Opposition, BJP MP Kirodi Lal Meena introduced a Private Member’s Bill in the Rajya Sabha that sought constitution of a National Inspection and Investigation Committee for preparation of a Uniform Civil Code (UCC) and its implementation throughout India.

Over the past year, in practically every state assembly poll, the BJP has been promising this uniform, codified law to govern civil issues of marriage, divorce, maintenance and inheritance for all Indian citizens, irrespective of their religious and caste denominations or social and cultural traditions. It did so in Uttarakhand, where a high-level committee is now examining suggestions for the proposed law. The BJP has also promised a UCC in Gujarat, a state the party swept for a seventh consecutive term just a day before Meena introduced his Bill in the Rajya Sabha. The party had promised a UCC for Himachal too but lost the assembly election to the Congress.

In nearly every other state where the BJP is currently in power, its leaders have joined the chorus for implementing this controversial legislation. Opposition leaders from the so-called secular parties believe the UCC would annihilate India’s social and syncretic fabric that has already been under severe strain since Narendra Modi became Prime Minister in 2014.

BJP’s long-standing agenda

For the BJP, the UCC has been a long unfulfilled promise. Now, with a brute majority in Parliament that previously helped it fulfil its equally controversial promise of abolishing Article 370, the BJP, perhaps, feels the time is ripe to legislate a UCC. The BJP argues that a UCC is a pre-requisite for truly uniting the country under a common set of laws. Its worthies have variously claimed that uniting all caste and religious denominations under a common civil law would abolish regressive, particularly anti-women, practices that exist under religious doctrines, such as the Shariat for Muslims, or personal laws governing marriage, divorce and maintenance and inheritance for other religious minorities.

Many in the BJP argue that Hindus, despite the diversity inherent to their socio-cultural practices, had accepted the Hindu Code soon after India’s independence and it’s about time Muslims and other religious minorities accept a codified law too. A common argument put forth ad nauseam by the BJP is that appalling practices such as instant triple talaq and polygamy exist among Indian Muslims primarily because the Shariat allows these.

It obviously matters little to the BJP’s spin doctors that instant triple talaq was abolished by the Supreme Court five years ago while petitions challenging the practice of polygamy are also pending adjudication by the apex court. Not to mention that polygamy isn’t practiced among Muslims alone but also among Hindus, despite the Hindu Code being in existence for over six decades now.

Those ranged against a UCC firmly believe that such a law would be divisive. They argue that the only aim of the BJP in bringing such a legislation is to further marginalise Muslims. Critics of the UCC argue that reform in personal laws of different religious minorities must come from consensus within those communities instead of being imposed as a fait accompli.

Constituent Assembly, the Hindu Code and UCC

The UCC is, of course, not an original idea from the BJP-RSS stable. It dates back to the years that immediately followed India’s independence. The framers of India’s Constitution, after lengthy debates in the Constituent Assembly, had decided against implementing a UCC. Instead, the UCC was placed under Article 44 of Part IV of the Indian Constitution that lays out non-justiciable Directive Principles of State Policy (DPSP).

Article 44 reads: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Faizan Mustafa, former vice-chancellor of Hyderabad’s NALSAR University, supports the idea of a UCC, in principle, but is opposed to the manner in which the BJP is trying to implement it.

Mustafa insists that the very semantics of UCC need to be understood better because, in law, a “uniform” civil code should be interpreted as a code that is applied with uniformity within one particular group and not as a law that is “common” to people of all faiths and castes. He cites the case of the Hindu Code. Mustafa points out that first and foremost the Hindu Code is not one Act but a “combination of four separate laws” that were debated at length first within the Constituent Assembly and then in the first Lok Sabha before being passed as the Hindu Marriage Act, 1955; Hindu Succession Act, 1956, Hindu Adoption & Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956.

Second, despite the Hindu Code now being in effect for nearly seven decades, contradictions in its application continue to exist. Mustafa points out that marriage among close relatives is “prohibited among Hindus under the 1955 Act but such marriages are considered auspicious in some places in the south”. Similarly, on inheritance and succession too there are points of divergence within the Hindu Code and subsequent legislations, particularly with regard to greater tax exemptions given to members of a Hindu Undivided Family as opposed to those who follow the Hindu Succession Act.

The BJP also relies heavily on the argument that personal laws, particularly among Muslims, are prejudicial against rights of women and that a UCC would be gender-just. What the BJP is silent on is whether its formulation of a UCC would also alter the rights Hindu women have – or don’t have – under the Hindu Code. It is to be remembered that under the original Hindu Code daughters weren’t entitled to a share in a Hindu joint family’s property; something that was reversed through an amendment to the law made only in 2005, when the UPA government was in power.

RJD MP Prof. Manoj Jha, who spoke in the Rajya Sabha against the introduction of Meena’s Private Member’s Bill, agrees with Mustafa’s contention and says, “if only BJP leaders had bothered to read the Constituent Assembly debates on the Hindu Code and the UCC, they would know that even Sardar Patel, who the BJP has been desperately trying to appropriate, was stridently opposed to a UCC while Dr BR Ambedkar argued that a UCC should remain voluntary and not be imposed on the people”.

A question of semantics

Mustafa explains that the text of Article 44 needs to be understood better. The former NALSAR VC says Article 44 uses the phrase the “State shall endeavour” which is very different from how the framers of the Constitution formulated other Articles under Part IV, which variously read as the State should: “in particular strive”, “shall take steps”, “shall in particular direct its policy”, “shall regard its primary duty”, etc. Mustafa points out that Article 43, which immediately precedes the Article on UCC, and concerns “living wage” for workers goes a step further and reads, “the State shall endeavour to secure, by suitable legislation…” These subtle differences in formulation, Mustafa argues, assume great significance in law as they indicate clearly that the Constitution framers did not intend enactment of uniform civil code by a single legislation.

CPM MP Elamaram Kareem sees in the BJP’s push for a UCC a “nefarious design” to subjugate Muslims that will “burn the country”. Reiterating Mustafa’s explanation of the difference in the formulation of various Articles under the Constitution’s DPSP chapter, the Rajya Sabha MP wondered why the BJP was “only bothered about Article 44 instead of ensuring a legislative framework to implement the more important principles of state policy dealt with in other Articles under Part IV concerning living wage, preventing accumulation of wealth, etc.”

A polarising Hindu-Muslim binary

Since the UCC is a pet project of the Hindutva-professing BJP, any discussion on the subject invariably boils down to the polarising binary of Hindus vs Muslims. This was also evident when Meena introduced his Bill in Rajya Sabha. Most members who vociferously opposed the Bill’s introduction did so primarily on the argument that the UCC would further deepen communal strife across the country. Veteran parliamentarian Vaiko accused the BJP and the wider Sangh Parivar of “leading the country towards disintegration” and asserted that the “minority people are terribly hurt”.

A senior Rajya Sabha MP told The Federal that the primary reason for the BJP’s ostensible success in “manufacturing public support for the UCC” is that critics of this “fundamentally flawed idea” had failed in explaining to the hoi polloi adverse implications that uniformity in civil laws will have “as much, if not more, on Hindus of various denominations, particularly the Dalits and tribals, as on Muslims and other religious minorities”.

The BJP’s arguments in favour of the UCC were “grossly misleading”, this senior Rajya Sabha MP said, because the party “projects as if 80 per cent of this country (Hindus) was happily following one common civil law while the remaining 20 per cent (in BJP speak, the Muslims) were allowed to follow the Sharia and not the Constitution… this causes polarisation and critics of the UCC fall in this trap because their counter-arguments largely focus on what such a law would mean to the Muslims.”

The 21st Law Commission, chaired by former Supreme Court judge Justice BS Chauhan, had concluded in its 2018 consultation paper that a UCC “is neither necessary nor desirable at this stage” in the country. Instead, the commission suggested that if the intent was to expunge regressive practices across various religious, caste or regional groups, a better way forward would be to codify all personal laws so that each of these could be tested on the anvil of fundamental rights of the Constitution.

“By codification of different personal laws, one can arrive at certain universal principles that prioritise equity rather than imposition of a uniform code, which would discourage many from using the law altogether, given that matters of marriage and divorce can also be settled extra-judicially,” the Commission had reasoned. Notably, the commission had also outlined the need to preserve India’s cultural diversity, making it clear that a UCC would invariably override not just personal laws but also cultural and ethnic practices that are not necessarily mentioned in law but are widely adopted in deciding matters like marriages, divorce and inheritance by various ethnic and religious groups.

Need to re-orient the UCC debate

Manoj Jha believes that there is an urgent need to reorient the debate around UCC. “Politicians, activists, public intellectuals, legal experts and religious scholars who are opposed to the UCC have to collectively make an effort to turn this debate from a Hindu vs. Muslim issue to one about preserving the socio-cultural and ethnic diversity of all sections of the Indian society, including the Hindus,” Jha said.

Jha’s observation is significant since none from the BJP have spelled out how they plan to reconcile within a UCC not just the multiple personal laws in existence – Sharia being just one of them, the Anand Marriage Act for Sikhs, etc – but also the exceptions provided within the Hindu Marriage Act for Sikhs, Jains and Buddhists as also the exceptions provided for intestate Parsis under the Hindu Succession Act. Similarly, the BJP has remained tight-lipped on the impact a UCC would have on customs and traditions regarding marriage, inheritance and succession which assume as great a significance as any personal law among various tribal and Dalits denominations or among matrilineal societies in Kerala, Karnataka or the north-eastern states.

A tribal leader from the BJP in Jharkhand told The Federal, requesting anonymity, that the UCC will immediately put his own party’s growth in tribal and Dalit dominated areas at risk. “There are a number of tribes in Jharkhand, MP, Odisha and Chhattisgarh in which polygamy is not frowned upon; in fact it is a matter of pride. There are also other customs around marriage and inheritance that are followed among Tribals and some Dalit communities that are both at variance with the Hindu Code and the public posturing of the BJP on the remit of a UCC. If the UCC disregards these practices, it will alienate these communities,” the tribal leader said.

Chinks in the BJP’s UCC push aren’t limited to the tribal-dominated Jharkhand and Chhattisgarh. Curiously, the BJP, which won Goa in a landslide in March this year, has never spoken about a pan-India UCC being extended to the state or what it feels about the current form of the Goa Civil Code, which the Supreme Court had, in 2019, described as a “shining example of UCC”.

The GCC draws heavily from Portuguese Law as it came into effect way back in 1867 when the southern state was still a colony of Portugal. As such, the Hindus of Goa are still governed by the Portuguese Family and Succession Laws as well as the regressive Shastric Hindu Law and not by India’s Hindu Code. The GCC doesn’t entirely ban polygamy among Hindus while for Christians it grants certain concessions under which members of the community do not need to register marriages and Catholic priests have the power to dissolve marriages performed in church. The Shariat Act of 1937 is not applicable to Goa and the state’s Muslims continue to be governed by a combination of the Portuguese-inspired GCC and the Shastric Hindu law. Even India’s somewhat progressive Special Marriages Act is not applicable in Goa.

Supreme Court advocate Anas Tanwir believes that the 21st Law Commission’s push for reform within personal laws and a subsequent attempt at codifying them would be the ideal way forward instead of a hurried and politically motivated UCC. “No law, personal laws included, is perfect but reforms, wherever necessary, have to be introduced gradually and through a process of consultation,” said Tanwir, adding that even the Goa Civil Code is riddled with contradictions and problems.

The BJP’s latest push for state-specific UCCs, based on the premise that issues covered under it fall in the Concurrent List and can, thus, be legislated on by state assemblies, and Meena’s Bill in the Rajya Sabha have added fuel to a raging debate. Can critics of the UCC win it by convincing the people at large that a UCC won’t adversely impact just the Muslim minority that the state has systematically othered over the years, with the majority turning its gaze away – or, at times, clapping gleefully in approval?

(This story was first published on December 16, 2022.)