The Pilot

The government's take on consideration of implementing a Uniform Civil Code (UCC) has caused a stir among the minority and tribal communities throughout the nation. On the one hand, the 22nd Law Commission solicited the public's suggestions and opinions regarding implementing the Uniform Civil Code, whereas, on the other hand, the public is struggling with the questions like what exactly UCC has in its sleeves for people, if implemented.

However, most citizens' support and opposition regarding implementing UCC revolve around their ties with political parties and individual and community interests. Nevertheless, the public remains alien to what Uniform Civil Code is. What exactly is it capable of, and what will it be replacing?

Uniform Civil Code (UCC): Concept and Constitutional Provision

The Uniform Civil Code proposes to establish a common set of laws that would be applicable to all citizens, regardless of their religious or community affiliations. Article 44 (Part IV) of the Indian constitution has a provision for Uniform Civil Code (UCC) as the Directive Principle of the State, stating that the State shall endeavour to secure for its citizens a uniform civil code throughout the territory of India. On the other hand, Article 37 labels it as the only desirable objective for the nation to pursue rather than considering it as a fundamental right or a Constitutional guarantee.

What is at Stake?

Recently, the topic has sparked numerous debates and discussions. As a diverse and multicultural nation, India is home to people of different genders (male, female, and Transgenders), religions (Hindus, Sikhs, Muslims, Parsis, Jains, and Christians) and tribal populations. This multicultural population is governed under different personal and customary laws, giving special provisions to individuals and communities.

For instance, Hindus have the Hindu Code (1956), Sikh's Anand Marriage Act (1909), Muslim's Muslim Personal Law (Shariat) Application Act (1937), Indian Succession Act of 1925 for Parsis, Jews, and Christians, Parsi Marriage and Divorce Act, Indian Christian Marriage Act of 1872, Cochin Christian Civil Marriage Act of 1920 and special provision under Sixth Schedule for Tribal Communities.

However, upon the implementation of UCC, all the matters of marriage, divorce, alimony, inheritance/succession, property, and adoption will be modified, and a uniform civil code will be applied to all, irrespective of their different socio-cultural traditions and affiliations. In other words, if the UCC is introduced, existing personal and customary laws will technically be dissolved, and individuals, religious and tribal communities will lose special provisions.

UCC- a Conventional Approach or a Novelty?

Consideration of the Uniform Civil Code is not a novelty as it has been tossed up and debated several times, whether during the constituent assembly debates, Shah Bano Case (1985) or Sarla Mudkal v Union of India (1995). Currently, Goa is India's only state with a uniform civil code. The code finds its roots in the Portuguese civil code of 1867, which the Portuguese implemented, and later they replaced it with a new version in 1966.

Goa has uniform marriage, divorce, and inheritance laws, irrespective of a person's religious affiliation. It has the provisions like mandatory marriage registration, birth, death, joint ownership of property between the married couple, no instant divorce etc. Apart from India, many other democratic countries also have uniform civil codes in practice. For instance, Jus Civile (Rome), the Napoleon Civil Code (France), the United States of America Civil Code, and many Islamic Countries have traditionally adopted Sharia law, modified and replaced by statutes inspired by European models.

For the People, By the People: Perceptions regarding UCC

The government's consideration of implementing UCC has been perceived differently by individuals from different social groups. This perception is bifurcated along two axes, i.e., people supporting UCC and opposition. The arguments put forward by legal experts, academicians, stakeholders, legal experts, and civilians are in favour and against implementing the Uniform Civil Code.

• Arguments in Favour of UCC
  The arguments favouring the implementation of UCC revolve around people considering UCC as an instrument to end the politicization of discrimination or concessions, in other words, supporting national integration through an equal set of laws. On the other hand, rising above the patriarchal mindset by discarding conventional upper-class patriarchal notions of society and considering UCC convenient for eradicating the complexity and inconsistencies in adjudicating personal matters as, UCC will establish an ease to access justice.
  
  However, despite the support, the citizens still demand the government's clear and transparent explanation of what the government means by the UCC and how far the fundamentals of the religious and tribal communities are under the purview of being tampered with. Moreover, the supporters also opined that Muslim women face more discrimination under personal laws, and UCC will liberate them and provide more autonomy.
   
• Arguments Against UCC
  Despite considering the UCC as "neither necessary nor desirable at this stage" in its 21st Commission Report (2018), the 22nd Law Commission has already solicited views on implementing UCC. People have perceived this government action as a step against the cultural diversity of India, encroachment on religious freedom and tampering with the indigenous rights of tribal communities. On the other hand, the move has also been perceived as a threat by minority communities as the government might just forcefully impose the UCC to introduce a uniform Hindu code applicable to all citizens of the country. At the same time, others opposed it as politicizing electorates for the upcoming prime-ministerial assembly election in 2024.

Perspective regarding UCC: Hope and Despair
A uniform civil code has been seen as an opportunity for modernization and reform as it can address issues of marginalized individuals or social groups by offering alternatives like simplifying archaic customs prevalent in religions, tribal communities, or across other social stratifications.

Therefore, people from various social backgrounds have supported the government's decision to consider its implementation. However, on the other hand, several social groups and individuals have perceived it as a threat to their identity, encroachment and violation of their religious freedom and customary rights.

1. UCC from Religious Perspective
   
   • Hindus:
     For Hindus, If UCC is implemented, all the personal laws under the purview of the Hindu Code, 1956, such as the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; the Hindu Adoption and Maintenance Act, 1956 will be technically dissolved. The majority in support have perceived it as an opportunity for women's empowerment as it will modify the age for marriage, hence, eradicating the menace of early-age marriage, provision of common adoption, maintenance and divorce laws, dissolving 'mothers' secondary status and a subordinate position in guardianship, and removing discrimination between heirs of men and women.
     
     At present, women largely remain disadvantaged in the matters of guardianship, inheritance, and adoption and maintenance rights. In contrast, the UCC has been opposed to its Hindu Undivided Family (HUF) stand, as the implementation will impact India's income tax rules, tax benefits and succession arrangements.
      
   • Muslims:
     Concerns and apprehensions are usually raised regarding preserving Islamic personal laws and the fear of encroachment on religious practices. The dissolution of the Muslim Personal Law (Shariat) Application Act, 1937 and the implementation of the Uniform Civil Code have been supported on the grounds of achieving milestones like outlaw of customary practices like polygamy, modifying Shariat law's minimum age for marriage, provision of rights to claim lifetime maintenance for women, allowing women have adoption and guardianship rights, establishing stable structure of share between men and women, and providing rights to claim the share in father's property for illegitimate and adoptive children.
     
     However, the UCC has opposed the infringement of personal laws, specifically those related to marriage, divorce, and inheritance, which are governed by Sharia law. For instance, practices like the abolition of Mutah (contract marriage), Nikah Halala (short-term marriage to another man in case of divorce), Misyar (renunciation of marital rights like living together, Polygamy, and Triple Talaq.
      
   • Sikhs:
     Apart from marriage (the Anand Marriage Act, 1909), the majority of matters among Sikhs are dealt with under the Hindu Code, 1956. Historically, they have supported the idea of UCC as it aligns with the principles of equality and justice that are central to Sikhism. However, some Sikhs have perceived it as an interference with their personal laws and an indirect threat to Sikh identity. Sikhs are concerned about preserving Sikh customs and traditions and argue for finding common ground and careful deliberation.
      
   • Others:
     The other religious minority communities like Parsis, Christians, and Jews are governed under the Parsi Marriage and Divorce Act of 1936, Indian Christian Marriage Act of 1872, Cochin Christian Civil Marriage Act of 1920, and Indian Succession Act of 1925. The majority of the minority communities have only opposed the UCC as it intends to neutralize the special provisions regarding adoptive guardianship laws benefitting men among Parsis, mandatory separation period for divorce among Christians, and succession laws of Parsis, Christians and Jews.
      
2. UCC from Tribal Perspective
   Unlike religious communities, the tribal communities have strictly opposed the government's stand on UCC and labelled it a direct infringement upon customary laws of tribal communities. Under the protection of the Sixth Schedule of the Indian Constitution, all personal matters like marriage, succession and inheritance, divorce and adoption in a tribal society are governed by varied customary laws. Each tribe has a different set of laws.
   
   Tribal communities are concerned that the UCC would either do away with the customary laws or weaken them to impose Hindu personal laws. They have also expressed concern about the validity of state laws like the Land Transfer Act and the jurisdiction of the District Council Courts.
   
   The opposition has also resulted in a call for protests. For instance, the Khasi Hills Autonomous District Council unanimously passed a resolution to oppose the UCC's implementation in the Sixth Schedule areas under the Council's jurisdiction.
    
3. UCC from Gender Perspective
   It is the gender perspective that has garnered the maximum support in favour of implementing a Uniform Civil Code. Despite the timely modifications and revisions, certain discriminatory provisions still exist even today that not only deprive women of accessing certain rights but also disadvantage them in utilizing the rights they are legally entitled to.
   
   For instance, women are not coparcener in Hindu coparceners apart from states like Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu. Similarly, the issue of polygamy among Muslims, child marriages, discriminatory laws regarding seeking divorce as women have to prove adultery or cruelty by their husband, and biased laws towards women regarding inheritance and succession.
    

The UCC is also seen as a hope for people who consider themselves beyond the binary divisions of male and female, as it inspires hope for LGBTQIA+ people regarding the issues of same-sex marriage. In opposition, the UCC has been targeted for imposing patriarchal uniformity on people who practice matriliny, such as the Khasis, the Garo hill tribes of North Eastern India, and the Nairs of Kerala. The UCC has been perceived as having a patriarchal Hindu nationalist agenda, as it intends to give away community land to corporates in the name of women's rights.

Implications: Neither Necessary Nor Desirable at this Stage?

As mentioned previously, the UCC has garnered most of the citizens' support based on women's inferior position in Muslim communities. As far as women's position in other communities is concerned, a rare heed is paid. Therefore, the question arises are all Muslim personal and customary laws discriminatory? Who suffers in the absence of a uniform civil code? Citizens, in general? Women or only Muslim Women?

For instance, high number of early-age marriages, dowry and polyandry among Hindus, biased succession and inheritance rights among Hindus, Sikhs (Haq-Tyaag), Parsis, and Christians and good practices like the provision of exclusive property (Mehr) for divorced women and individual property rights among Muslims has never been streamlined into the public debates. Undeniably, the UCC holds immense potential for uplifting women from marginalized positions, but the concern is not only about the legal. It is also about the cultural legitimization of gender-biased and discriminatory practices and laws.

To borrow the quote from Hannah Arendt, a majority of women lack the right to access the rights. Therefore, the question that needs to be answered primarily is whether Uniform Civil Code is necessary rather than desirable at this stage, given the context of the nation's cultural diversity. Are citizens well aware of the rights they seek to implement, or are they under the influence of majoritarian political agendas?

To conclude, being home to diverse cultural and ethnic communities, consideration of a Uniform Civil Code for the nation must be mindful of preserving the indigenous belief and customs, providing legal protections and ensuring access to justice for all. The government must engage in a sensitive, inclusive, open dialogue to reconcile these differing viewpoints.

Undoubtedly, implementing a uniform civil code represents an essential step towards achieving equality, justice, and harmony in our society, but it is also needful to uphold the enshrined fundamental principles of our constitution. Therefore, it remains the foremost duty of policy and lawmakers to approach the implementation of a Uniform Civil Code with sensitivity, inclusivity, preserving religious freedom and accommodating all communities' unique needs and aspirations, along with a deep understanding of our nation's diverse cultural and religious fabric.

References:

• Alim, A. (2021). Towards the Uniform Civil Code and Personal Laws in India: Gender Equality Perspective. Annals of Bioethics & Clinical Applications. Vol. 4, Issue 4.
• Citizen Rights Protection Council. Unifroms Civil Code. Ministry of Corporate Affairs. Government of India. Accessed on 06 July 2023.
• Kanakaraj, N. (1991). Uniform Civil Code - A Challenge to Minority Rights? Cochin University Law Review. Vol. XV, pp. 198-205.
• Law Commission of India. (2018). Consultation Paper on Reform of Family Law. Government of India. https://archive.pib.gov.in/documents/rlink/2018/aug/p201883101.pdf
• Law Commission of India. (2023). Uniform Civil Code - Public Notice. Ministry of Law & Justice, Government of India. https://lawcommissionofindia.nic.in/notice/uniform-civil-code-public-notice/
• Mongia, S. (2022). Uniform Civil Code: One Nation One Code. Legal Service India. Accessed on July 07, 2023. https://www.legalserviceindia.com/legal/article-685-uniform-civil-code-one-nation-one-code.html
• Rai. M. (2022), Goa Civil Code: Is It Uniform? Indian Journal of Integrated Research in Law. Vol. II, Issue I. pp. 622-630.
• Shetreet, S. and Chodosh, H. E. (2015). Uniform Civil Code for India: Proposed Blueprint for Scholarly Discourse. Delhi: Oxford Academic.

Written By:  Amit Kumar is a Research Officer at Institute for Development and Communication (IDC), Chandigarh. Post-graduated from Jawaharlal Nehru University, New Delhi in Geography, Mr Kumar's area of research includes Gender Geography, Masculinities Studies, Gender and Governance, and Social and Political Geography. His latest book is Three Shades of Green: Privatization, Pollution and Protest.