Political Diary
New Delhi, 21 November
2023
Uniform Civil Code Anyone?
TIPTOEING STEALTHILY
By Poonam I Kaushish
In this poll season of freebies galore interspersed with
vitriolic hate speeches and venomous tu-tu-mein-mein
by BJP and Congress on the assumption that populist hand-outs yield better
electoral rewards than reasoned policies, notwithstanding Prime Minister Modi crying
halt to free “revadi” culture, the BJP
Uttarakand Government in a groundbreaking move is quietly set to roll out the Uniform
Civil Code (UCC) a long-debated legal reform genie in a special Assembly
session this week granting it legal status.
The Bill aims at uniformity in personal laws, like marriage
registration, child custody, divorce, adoption, property rights and inter-State
property rights regardless of religious beliefs. Reportedly it gives importance
to safeguarding interests of women, children and differently-abled and covers equal
rights for daughters living on ancestral properties and gender equality. The State
also seeks a ban on polygamy and registration of live-in relationships..
Pertinently, the Code is BJP’s key agenda and Article 44
states: The State shall endeavour to secure for citizens a UCC throughout
India. It divests religion from social relations and personal laws related to
marriage, inheritance, family, land etc, bypasses contentious issue of reform
of existing personal laws based on religion --- Hindu Marriage Act (1955),
Hindu Succession Act (1956) and Muslim Personal Law Application Act (1937). It
would ensure all Indians are treated equally, provide gender equality and help
improve women’s condition and tribal communities.
Modi hoots for it. Asserting recently, “You tell me, if
there is one law for one person in a home, and another law for another person,
can that house function?” No. “So how can a country work with such a
hypocritical system? We have to remember that even the Constitution of India
talks of common rights.”
Questionably, why now? There are four theories going around
in BJP circles. One, it is part of a larger plan for the Saffron Brigade as
UCC’s implementation could represent a political breakthrough that advances a
narrative of uniformity and reform in law.
Two, Uttarakhand’s UCC is to test political waters on how
it will be received and could be the template that Central Government will
follow for a pan-India code. The Law Commission has begun consultation on it,
given Opposition vehement disagreement on grounds UCC would interfere in
religious groups personal laws and right of religious freedom unless religious
groups are prepared for change (sic). It is a ‘minority versus majority’ issue
and Hindutva Brigade’s policy for Muslims living in India. It would
disintegrate the country and hurt its diverse culture, they warn.
Three, in case the Party wins crucial States of Rajasthan,
Madhya Pradesh and Chhattisgarh it will roll out UCC in Parliament before
general elections 2024, thereby fulfilling it last key agenda, part of its 2019
Lok Sabha election manifesto alongside Ram temple in Ayodhya and abrogation of
Article 370 in J&K which have been fulfilled.
Lastly, in the event it loses these crucial States the BJP
might still bring UCC to distract attention from its defeat. “In fact, it plans
to use the Uttarakhand as a model when developing its UCC Bill that it will
eventually introduce”, said a Party leader. As it stands, two other BJP-ruled
States Gujarat and Assam too might roll the Code out soon. While, Haryana, UP and
Maharashtra wait in queue.
However, this is easier said than done due to the country's
diversity and religious laws, which not only differ sect-wise, but also by
community, caste and region. Already, the All India Muslim Personal Law Board
has expressed reservations, stating India has a multi-cultural and
multi-religious society and each group has the Constitutional right to maintain
its identity. Adding, the UCC is a threat to India’s diversity and encroachment
on their rights to religious freedom which will disregard their traditions,
imposing rules influenced by the majority religious community.
Besides, not a few argue it violates Constitutional freedom
to practice religion of choice which allows communities to follow their
respective personal laws. For example, Article 25 gives every religious group
the right to manage its own affairs and Article 29 the right to conserve their
distinct culture. Also, the Constituent Assembly’s Fundamental Rights
sub-committee deliberately did not include UCC as a Fundamental Right.
Some are wary UCC will impose a Hinduised code for all
communities as it could include provisions regarding personal issues like
marriage that are in line with Hindu customs but will legally force other
communities to follow the same.
Legal experts are divided on whether a State has the power
to bring about UCC. Some assert as issues like marriage, divorce, inheritance
and property rights come under the Concurrent List, 52 subjects on which laws
can be made by both Centre and States, State Governments have the power to impose
it.
A similar concern is voiced by tribal groups like Rashtriya
Adivasi Ekta Parishad, which approached Supreme Court 2016 seeking protection
of their customs and religious practices from a potential UCC. In Nagaland’s
tribal territories existing customary laws have primacy over federal laws with
respect to personal issues like marriage, land ownership, etc.
Goa is the only State which has a UCC regardless of
religion, gender, caste. It has a common family law whereby all Hindus, Muslims
and Christians are bound with the same law related to marriage, divorce,
succession. When Goa became a Union Territory in 1961, Parliament authorized
the Portuguese civil code of 1867 be amended and repealed by the competent
legislature.
Certainly the path to UCC is sensitive and difficult but it
must be taken. A beginning has to be made if the Constitution is to have any
meaning. Discrimination cannot be justified on the grounds of traditions and
customs. To establish equality the law that regulates population of a country
should also be one.
Where do we go from here? Time for consensus among people
which addresses their misgivings and concerns before the Code can be enacted.
Said a senior Minister, “There is need to tackle “delusions” that some have
“encouraged” that UCC is against rituals and core practices of any religion. It
is a scientific and modern way of achieving goals of gender justice by removing
disparate loyalties in laws which have conflicting ideologies.”
A common civil code will help the cause of national
integration by removing desperate loyalties to laws, which have conflicting
ideologies. A way forward is to follow Balasaheb Ambedkar who advocated
“optional” common civil code. Whereby, Parliament in the initial stage makes a
provision of the Code being purely voluntary.
What next? Ultimately, no community should be allowed to
veto or block progressive legislation. Especially, if it is voluntary and does
not seek to impose any view or way of life on any one arbitrarily. Time now to
reject different laws for different communities, implement Article 44 and
reform India.
One cannot progress riding on past’s wheels. India needs
uniform laws and should figure what is
satisfactory to all groups. Criminal and commercial laws are basic, so
there is little purpose behind common laws to appear as something else. It just
partitions Indians on the premise of religion that should not happen in the
21st century. It is beyond endurance of sensitive minds to allow injustice to
be suffered when it is so palpable. What gives? ---- INFA
(Copyright, India News & Feature Alliance)
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