Uniform Civil Code: The coming storm over a single common law in India

NEW DELHI – When it comes to matters like marriage, divorce, inheritance and adoption, India has different laws for different communities depending on their religion, faith and beliefs.

But since independence, there has been talk of a Uniform Civil Code or UCC, a single personal law for all citizens, regardless of religion, sex, sex and sexual orientation. Even the constitution states that the state should “endeavour” to provide such law to its citizens.

But a common law – resisted by both the country’s Hindu majority and Muslims, the main minority – has remained, in the words of the Supreme Court, a “dead letter”. Prime Minister Narendra Modi’s ruling Bharatiya Janata Party (BJP) is resurrecting the idea. BJP-ruled states such as Uttar Pradesh, Himachal Pradesh and Madhya Pradesh spoke about the UCC.

Certainly, the UCC was one of the initial campaign promises of the BJP, with the construction of the temple on a disputed site in Ayodhya, and the abolition of the special status of Kashmir. Now that the temple is being built and Kashmir has been stripped of its autonomy, the spotlight has shifted to UCC.

Hindu right-wing rhetoric has pushed for a common personal law to counter what they call Muslims’ “regressive” personal laws – they cite the example of triple talaq, the Muslim practice of “instant divorce”, which Modi’s government criminalized in 2019. The BJP manifesto says there “cannot be gender equality until India adopts a uniform civil code.”

But, as political scientist Asim Ali notes, “the reality is more complex.”

In other words, crafting a UCC will open a Pandora’s box with unintended consequences even for the country’s Hindu majority, which the BJP claims to represent. “The UCC would disrupt the social life of both Hindus and Muslims,” ​​he said.

Personal laws are devilishly difficult to unify in an incredibly diverse and vast country like India.

For one thing, even though Hindus follow a set of personal laws, they also recognize the customs and practices of different communities in different states. Muslim personal law is also not entirely uniform – some Sunni Bohra Muslims, for example, are guided by principles of Hindu law regarding inheritance and succession.

And then there are different laws for different states when it comes to property and inheritance rights. Christian-majority northeastern states like Nagaland and Mizoram set their own personal laws that follow their customs, not their religion. Goa has a common civil law of 1867 that applies to all of its communities, but also has different rules for Catholics and other communities, including one that protects bigamy for Hindus.

Personal laws in India are a subject of common interest for both the federal government and the states. Thus, states have been crafting their own laws since the 1970s. Years before a landmark 2005 amendment to an existing federal Hindu personal law allowing daughters to have an equal share of ancestral property as sons, at least five states had already changed their laws to allow this.

Now consider how personal laws deal with different issues.

Take adoption. In the Hindu tradition, adoption was undertaken for both secular and religious purposes – to have a male heir who inherits the property and for a male descendant to perform the funeral rituals of the parents. On the other hand, adoption is not recognized by Islamic law. But India also has a secular “juvenile justice” law that allows citizens to adopt regardless of their religion.

Also, do experts wonder what are the neutral principles to adopt when developing a common law?

“Which principles do you apply – Hindu, Muslim or Christian?” asks Alok Prasanna Kumar, a member of the Vidhi Center for Legal Policy, an independent legal policy advisory group based in Bangalore.

He says the UCC should answer some basic questions: What are the criteria for marriage and divorce? What are the processes and consequences for adoption? What are the rights to the maintenance or the division of the patrimony in the event of divorce? Finally, what are the rules of inheritance of property?

Then there’s politics, which can easily lead to backfire, Ali says. How would a BJP government reconcile a uniform law that freely permits cross-religious and community marriages with anti-conversion laws it has enthusiastically supported to curb inter-faith marriages? Or does the party, as Mr Ali suspects, plan to bring in-laws into small states without “significantly disrupting the customary practices” of its people?

Unsurprisingly, even the Supreme Court seemed confused about the UCC. In various judgments over the past four decades, he has pushed the government to enact a common civil code for “the integrity of the nation”. In 2018, the Law Commission, a body responsible for advising the government on legal reform, said the code was neither “necessary nor desirable”.

Obviously, UCC is not a silver bullet. “Uniformity doesn’t even add value to a law let alone great value. What makes a good law is that it is fair, clear and constitutional,” Kumar says.

To combat gender inequalities in personal laws, there is no objection to trying to change them rather than requiring compliance with a common law, experts say. This would essentially mean adopting the best practices of all personal laws.

Ali thinks many BJP-led states might sue the UCC not because he is particularly popular there or garners more votes. “It’s more about building their political capital and ensuring their survival within the new structure of the BJP where they have to constantly re-gild their Hindu credentials,” he says.

Others wonder why the BJP has not been able to push the code even in the states when it has been in power for a long time. With two years until the general election, does the party think the time has come? “The UCC is making a lot of noise right now, and the debate isn’t even political yet. Show us a draft of the proposed law first,” Kumar says. —BBC

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