Uniform Civil Code Question Indians Must ask: Where is the Draft?

The Law Commission of India’s notification and Prime Minister Narendra Modi’s strong advocacy for a Uniform Civil Code (UCC) have revived the debate around the divisive subject. It has been part of the Bharatiya Janata Party’s election manifestos throughout its history. The party’s 1996 manifesto mentioned the UCC under the heading of Nari Shakti (woman power). Despite this, the party has never worked out the content of a draft of the UCC.

What will be the laws regarding divorce, alimony, inheritance rights and custody of children in a uniform code? The significant reaction so far has been from the All India Muslim Personal Law Board and other established minority organisations that oppose it. This time, the UCC proposal is facing opposition from Adivasis and Sikh groups, among others.

Santosh Tirkey, a functionary of Kendriya Sarna Samiti, said, “It (UCC) would infringe upon our customary laws of marriage, divorce, inheritance and transfer of land… .” Another Adivasi group leader, Ratan Tirke of Jharkhand, said, “We will not only register our protest by sending emails to the law commission but also stage a protest on the ground. Meetings are being planned to chalk out our strategies. The UCC will dilute the provisions of the Fifth and Sixth Schedule of the Constitution.”

One of the constituents of the National Democratic Alliance and some BJP leaders from the Northeast have claimed they oppose it too. The BJP’s Sushil Modi, who chairs the Standing Committee of Parliament on Law and Justice, has questioned the feasibility of a uniform code in tribal areas, including those in the Northeast.

The Shiromani Akali Dal (SAD) leader Gurjeet Singh Talwandi has asked the top Sikh religious body, the Shiromani Gurdwara Parbandhak Committee, not to dismiss the UCC but to initiate a dialogue with the law commission—which should be read not as their agreement but guarded opposition to the proposal.

It is crucial to repeat that personal and family laws differ from civil and criminal laws. The British rulers of India formulated personal laws in consultation with the clerics of each faith. For instance, the Mitakshra and Dayabhaga streams of Hindu laws continue to exist. Therefore, there is no uniformity of civil laws, even among the Hindus. The first Prime Minister, Jawaharlal Nehru, concerned about the inherent gender injustice within the personal laws, called upon the first law minister Dr BR Ambedkar to begin reforming the code for Hindus. Ambedkar, with all his fairness and longing for equality, found Hindu personal laws riddled with the total subjugation of women. He went on to draft a Hindu Code Bill, and the idea was to begin with reforming the majority religion and then bring in similar processes for other communities.

The reason why Muslim personal law was not taken up for reform immediately after India’s independence was because, in the shadow of the partition riots, India did not want to appear as if the majority was imposing its will on the minority community. The codification of Muslim laws was undertaken later, and a reform in Muslim law by declaring instant triple talaq unconstitutional has also been done (though the BJP government, by needlessly criminalising the practice, has polarised people and served to make the Muslims appear like law-breakers). Also important to remember is that some progressive Muslim groups such as the Indian Muslims for Secular Democracy have called for religion-neutral personal laws even in the past.

The opposition to the laws formulated in Hindu Code Bill by Ambedkar, based on gender equality, was so massive that the Bill had to be diluted and introduced in stages. Conservative Hindus, backed up by the Hindu nationalist forces, called for Ambedkar’s resignation, who was pained at this response and resigned from the Cabinet.

In its original form, the Kalyan magazine of Gita Press, awarded the Gandhi Peace Prize by the present dispensation, voiced opposition to the Hindu Code Bill: “Until now, the Hindu public was taking his words seriously, but now it is confirmed that the Hindu Code Bill, introduced by Ambedkar, is the most important part of his conspiracy to destroy the Hindu dharma. It would be a matter of great humiliation, shame for the Hindus and a blot on Hindu dharma if a man like him remains their law minister.”

The demand for UCC did come from the upcoming women’s movement, though it was more strongly articulated after the Mathura rape case in the early seventies. The presumption among some sections of the women’s movement was that uniformity would bring justice.

Conversely, MS Golwalkar, second sarsanghchalak of the Rashtriya Swayamsevak Sangh, said in an interview with KR Malkani on 23 August 1972 for the Organiser that the UCC would hurt India’s diversity.

The argument that a UCC will strengthen national unity holds no water. Most women’s groups have also moved away from the idea of uniformity towards gender justice. They ask how there can be gender justice in divorce, inheritance, and custody of children. Will culling laws from diverse existing codes achieve this goal?

The other question is, can a UCC be imposed just by a fiat? Can customary practices be done away with by imposing UCC? That is a million-rupee question. Work is needed to bring change within the communities and gender justice. The so-called spokespersons of diverse communities may not be reflecting the opinion of the community as a whole and particularly women’s opinions. Men have assumed the role of community leadership, which, while we are on gender justice, also needs to be questioned. The simmering of women within different communities needs to be recognised and made the central determinant factor in modifying and changing laws.

The BJP’s claims that it will empower women through the UCC are hollow in all these respects. It could have initiated reforms within different communities over the nine years of its rule. Women within a variety of communities have been flagging their concerns, but they have had little impact. To cap it all, the rising insecurity among minorities and the increasing communitarian power of the conservative elements apply a strong brake on healthy legal reforms.

The BJP’s goal is to polarise the communities along religious lines; hence, it talks about a UCC. A sincere effort will call for twin efforts: community-led reforms in all social groups and gender justice. There is a need to call for the UCC’s draft rather than saying yes or no. One hopes that voices among the Muslim community will, rather than opposing legal changes blindly, will call to view this draft.

Indeed, the BJP, which gave the Gandhi Peace Prize to the Gita Press, is not interested in empowering women but knows very well that Muslim fundamentalist organisations will cry hoarse to oppose the UCC. This will only help its designs to polarise communities before the forthcoming Lok Sabha election to benefit it electorally. Political forces need to stand in unison and ask for the draft of the UCC before offering an opinion on it.

The author is a human rights activist. The views expressed are personal.