Opinion
Is a truly uniform civil code possible in India?
Summary
- Uttarakhand’s UCC proposal does aim at gender justice in family matters, but falls short on uniformity. The worry is that its live-in rules intrude in conjugal relations, its prism is heteronormative and it bears too political an imprint.
Uttarakhand’s Uniform Civil Code (UCC) bill, which proposes common personal laws to govern marriage, divorce, inheritance, succession, adoption and more across religious groups, marks a major move not just by this hill state, but by India’s ruling Bharatiya Janata Party, which has long favoured such uniformity by legislation over the need for evolving a consensus over it. Indeed, along with Ayodhya and Kashmir’s status, the party has set itself apart on this issue. Under the British Raj, various groups could follow their customary practices, as dictated by faith or tradition. Upon freedom, the Constituent Assembly wrestled with the idea of family-law convergence, but left it as an aspiration. According to the Constitution, the state shall “endeavour to secure" for all citizens a UCC. Many Supreme Court rulings over the years have advocated uniformity in personal laws, but it is a legislative matter with fraught politics. Uttarakhand’s proposal has caught attention because it could be a trial run by the BJP for an all-India UCC after this year’s Lok Sabha polls.
As a first concrete attempt at a UCC draft, the bill’s bulk is an indicator of its scope. Yet, it fails a uniformity test by keeping Scheduled Tribes (ST) out of its purview. This nod to Liberty as an Article 21 Right has been granted in consideration of unique ST customs that are not subject to other bans under the Constitution. In academia, the UCC debate has been led by concerns of gender justice for good reason: Olden-day practices with claims of religious sanctity have been patently unfair to women across communities. On this aspect, the bill at first glance strikes a welcome reformist note. It sets a clear age-based minimum for marriage eligibility, declares monogamy the norm (with any other marital knot to be held void), and places divorce and its terms under a common code. This was bound to stoke a controversy over whether it clashes with the Right to Freedom of Religion under Article 25. Protests have been aired by a Muslim personal-law board sworn to defend Shariah, which has legal sanction in India and permits both polygamy and unilateral divorce (with a lump-sum severance package mandated over maintenance money). Whether Article 25 can be cited in defence of faith-specific family rules, however, is unclear. In courts, it has been argued with merit and success that only the essential practices of a faith are covered by its shield. That said, reformist moves for a modern world need to take a duly wide view. Religious precepts as starting points make that difficult. The prism of this bill is heteronormative. It would apply only to those who identify within the male-female binary. For inclusivity, any UCC we consider should make space for the legalization of LGBTQIA+ families.
Inheritance is another domain where the bill’s provisions aim for gender equality. Here, too, the persistence of gaps under old rules cannot be reconciled with a progressive outlook. Yet, the bill proposes stiff regulation of live-in relationships. This is ostensibly in support of female partners, but the rigmarole of registration, proposed penalties and other parts suggest its enactment will enable the harassment of couples who do not meet the approval of social vigilantes, especially in the context of “love jihad" rumours. Even otherwise, strict oversight of live-ins—many of whom opt not to start families—is excessive intervention in people’s personal lives. We ought to resist any law that seeks to encode prudery in conjugal matters.
