To be just, UCC needs openness and honesty
Despite the BJP's push for UCC, for the uniform law to succeed, it must prioritize gender justice and Constitutional equality, rather than majoritarianism.
In the 74 years since the Constitution set it out as a desirable goal, there has been one main objection to a uniform personal law for all citizens—the time is not right.
Certainly, the timing of Prime Minister Narendra Modi’s push for a uniform civil code (UCC) during a meeting with party workers in poll-bound Madhya Pradesh in the last year of his term raises questions. Why does an issue mentioned in the BJP’s 2019 manifesto suddenly gain urgency? How is it that the 22nd Law Commission has invited public opinion on a UCC when the previous Law Commission held that it is “neither necessary nor desirable at this stage”?
In BJP-ruled Uttarakhand, retired justice Ranjana Desai, tasked with preparing a draft code, has announced it is ready. The draft is said to include equal property rights for women, an end to polygamy, uniform child adoption rules and raising the legal marriage age for women to 21. So far only Goa has a UCC.
The push for a UCC has traditionally come from two very different sources—the right wing and feminists. The feminist backing is easy to understand. All personal laws discriminate against women, particularly in key areas like marriage and inheritance. Through the 1970s “with the rise of autonomous women’s movements, there was an enhanced focus on the reformative potential of the law to challenge social injustices,” writes legal scholar Saumya Saxena, in Divorce and Democracy: A History of Personal Law in Post-Independence India.
For the right wing, one law, one nation has long been an article of faith, though it’s interesting to recall the staunch opposition of the Hindu Mahasabha and Jana Sangh to the Hindu code bills of the 1950s. But alongside a rise of Hindu nationalist politics, contemporary feminists have more recently rejected a UCC. This has coincided with an increasing awareness of their rights by women from minority groups who have sought to define and fight their own battles.
The demand for a ban on triple talaq, for instance, first came from Muslim women who went to court for it. When Parliament passed legislation to back the Supreme Court’s ban, it added criminal provisions to it—a demand that had been made by nobody.
Recent actions such as that in Assam where chief minister Himanta Biswa Sarma rounded up and arrested over 3,000 men, a majority of them Muslim, for marrying underage women—many had been married for several years and even had children—does little to build confidence amongst Muslims. The enactment of ‘love jihad’ legislation in BJP-ruled states despite the fact that the party’s own minister of state for home told Parliament there is no evidence of any such conspiracy plays into populist sentiment but cannot win it friends among minority groups.
If a uniform law is to succeed, it cannot be through brute majoritarianism but through confidence-building, statesmanship and sympathy, with just one impulse: Gender justice and the assurance of Constitutional equality for every citizen.
Unfortunately, there are no clean hands in this debate. The ironically-named Muslim Women (Protection of Right on Divorce) Act passed by Rajiv Gandhi’s Congress government negated the gains made by the Supreme Court in ruling that Shah Bano, married for 43 years, certainly deserved more than ₹179.20 a month, which was the maintenance deemed appropriate for her.
But behind the raised rhetoric and the public wringing of hands, the truth is nobody knows what a UCC will actually look like. No draft bill has as yet been presented. How will it accommodate the Hindu Undivided Family, a recognized entity that carries tax benefits?
How it will accommodate the customary and Constitutionally-protected tribal laws of the northeast particularly at a time when Manipur is roiled by conflict. Already, Sushil Modi, who heads the Parliamentary panel on law, is asking for tribals from the north-east to be kept out of the UCC.
Will a UCC accommodate more contemporary demands, such as marriage equality, and all the rights and privileges that stem from marriage, demanded by the LGBTQI community and for which a judgment by the Supreme Court is awaited?
Nobody knows. But in the years since we have been a free nation, society has changed in fundamental ways. Women are more vocal about demanding their rights, even if it means going to court to get them. And even without a UCC, the Supreme Court has tended to favour gender justice (sadly not always) when there’s been a clash between personal law and Constitutional equality.
For instance, in 2020, it clarified that Hindu women’s right to ancestral property granted in 2005 had a retrospective effect. It struck down a requirement for Christian women seeking divorce on grounds of adultery to prove cruelty as well (men had only to prove adultery). It granted Hindu women the right to pray at Sabarimala. Now, a Parsi woman who had married outside her community and so was deemed ‘excommunicated’ wants the court to tell her she has the right to worship at her fire temple.
There is no doubt that the uniform civil code can play a role in ironing out gender gaps in the way all religions view women. But for that to happen, the intentions must be honest and open.
Namita Bhandare writes on gender. The views expressed are personal.
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