Is the government serious about bringing in a Uniform Civil Code (UCC), or is it just the expedient political rhetoric of the Bharatiya Janata Party (BJP)?
If a UCC came into the country it would be a welcome step. But there are serious issues at stake, including harmonising different provisions of the Constitution. Article 44 of the Constitution states: “The State shall endeavour to secure for the citizens a uniform civil code (UCC) throughout the territory of India.” The provision is part of the Directive Principles of State Policy, which as Article 37 explains, are not mandatory or enforceable by any court, but as principles that are “fundamental to the governance of the country”.
Article 25 of our Constitution, which is part of the fundamental rights, guarantees freedom of conscience and the right freely to profess, practice and propagate religion. Article 26(b) also gives the fundamental right to all religions “to manage its own affairs in matters of religion”. How do we harmonise a fundamental right that unequivocally gives the freedom to people to profess, practise and propagate their religion, with an UCC, which as part of its enlightened end goal of uniformity of religious laws, is bound to infringe, in smaller or bigger measure, that very right?
The BJP included the UCC as part of its election manifesto in both the 2014 and 2019 parliamentary elections. Even today, it is the most vociferous about the need to have an UCC. But having been in power for eight years at the Centre, what has it done to move towards this goal? Obviously, if it was serious about the UCC, the first thing it should have attempted to do after 2014 is to propose a draft law, which could then be put out for consultation and debate. Why have we not seen such a draft?
We currently have several laws governing the practice of religion: the Hindu Marriage Act, Indian Christian Marriages Act, Indian Divorce Act, Parsi Marriage and Divorce Act, as also the Sharia. The enforcement of a UCC would require all current laws relating to complex issues of marriage, divorce, maintenance, inheritance, adoption and succession, applicable to Muslims, Christians, Parsis and Hindus (including Buddhists, Sikhs and Jains), to be scrapped.
To attempt to do this without substantive and in-depth consultations with stakeholders in all religions would be disastrous. Justice B.S. Chauhan, chairman of the Law Commission of India, wrote in October 2016 to chief minister Nitish Kumar, in his capacity as president of the Janata Dal (United), seeking his views and enclosing a questionnaire. I was then working with him in the party. In his reply, Nitish Kumar wrote: “Any attempt to impose a UCC, without obtaining through substantive consultations, the concurrence of various religious groups, especially the minorities, could lead to social friction and an erosion of faith in the constitutional guarantee of freedom of religion… It is also imperative that the concrete details of the UCC being proposed by the Central government are made known in advance so as to enable all stakeholders to provide a detailed response.”
Has the BJP even begun in seriousness the process of such consultations? This is essential given the plural and multi-religious nature of our Republic. For instance, Explanation 1 of Article 25 in the Constitution says: “The wearing or carrying of kirpan shall be deemed to be included in the profession of religion.” If such an exception has been made for the Sikhs, could not other religions also claim exceptions? Explanation 2 says: “The reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion.” Are these religions willing to be conflated with Hindu religious practice?
In November 2019 and March 2020, a Bill on the UCC was proposed, but it was never introduced in Parliament. Earlier, in August 2018, the Law Commission of India, under a BJP government, had stated that a UCC is “neither necessary nor desirable at this stage”, and that a UCC “cannot contradict plurality in the country”. Has the government accepted this opinion? If yes, why does it keep talking about a UCC? And if not, has it made any public announcement that it will take steps to revisit or revise this finding?
The basic question is: Will the BJP, which constantly espouses the UCC almost as a slogan, tell us how it harmonises what it says with what it does? An answer to this question is important since if none is convincingly forthcoming, one inference is that the UCC is being used by the ruling party and the government to target a particular community for political reasons and not with a genuine desire to pursue reform.
This is not to say that the Muslim personal law as governed by the Sharia does not need be relooked at to eliminate outdated and discriminatory practices, especially relating to women. The banning of the practice of triple talaq is a step in the right direction. It is unfortunate that the apex body for Muslims — the All India Muslim Personal Law Board — reflexively opposes any change. It is male dominated and invariably backs unsustainable and insular orthodoxies. An enlightened pro-change attitude among Muslims themselves will allow them to embrace modern and progressive ideas in the best interests of the community.
But necessary changes in Muslim religious practice are not the only goal of the UCC. All religions, including Hindus, will have to examine what of their past tradition, custom and rituals they are willing to jettison, and what new practices they are willing to accept. This will be a very complex process, in which many sensitivities will be involved.
It is a pity that the BJP, instead of working diligently and consistently on ensuring a UCC, has essentially made it a weapon to target specific religious communities. Such an approach will ultimately devalue the legitimacy of the UCC, and needlessly politicise an important and needed reform measure.
