Has the time finally come for a Uniform Civil Code in India? The Union government definitely thinks so, as evident from Prime Minister Narendra Modi’s speech recently. While accusing the opposition parties of vote bank politics, Modi had questioned how a country can run on two sets of laws. “In a home, can there be one law for one member and another law for another member? Will that home be able to function? Then how will the country function with a dual system? Our Constitution also guarantees equal rights to all people,” Modi had said while speaking to BJP workers in Bhopal in June.
The Prime Minister was referring to the fact that each religious community in India has a different personal law to govern matters such as marriage, divorce, inheritance and adoption. A Uniform Civil Code or UCC – a poll promise of the BJP since 1996 – would mean one law to govern personal matters. The UCC would replace these personal laws – like the Hindu Marriage Act, Muslim Personal Law, and Parsi Marriage and Divorce Act, among others.
The 22nd Law Commission of India had recently sought the views of the public and religious organisations on the matter. This comes five years after the previous Law Commission had in 2018 noted that a uniform civil code “is neither necessary nor desirable at this stage” but had recommended amending several provisions across India’s personal laws that are discriminatory towards women. Based on the 22nd Law Commission’s report, the Union government will possibly bring in a draft law.
Although there is no draft of the Uniform Civil Code now, there is genuine concern that a UCC pushed by the Modi government will not be a progressive one but just a new way to target minorities, given the BJP’s track record. So, if equality is really what the government wants, what should a progressive draft UCC look like?
One example is the draft of a progressive UCC submitted to the Law Commission in 2017. The draft was prepared by a group of eight prominent citizens, including musician and writer TM Krishna, activist Bezwada Wilson, writer Mukul Kesavan, and actor Gul Panag, among others. More recently, Saumya Uma, a professor at the Jindal Global Law School, wrote this piece in The Wire on what a gender-just UCC could look like. Many others have also envisioned what a progressive UCC would entail.
All of India’s personal laws reinforce the idea that marriage is between persons of the opposite sexes – a man and a woman. Marriage is restricted to the gender binary – excluding those who identify beyond the binaries. A progressive uniform civil code is one that will ensure that all citizens, irrespective of their gender, sex, sexuality, religious or cultural beliefs, are entitled to equal rights in marriage.
But the Union government has in the Supreme Court opposed granting legal sanction to same-sex marriages, saying it is not in conformity with societal morality and Indian ethos. So how progressive can we really expect any draft of the UCC to be?
It’s not just married couples who should be afforded legal recognition and protection but also those in live-in partnerships. The draft prepared by the citizens' group states that any two persons who have been in a partnership for more than two years should have the same rights and obligations towards each other as a married couple.
But Saumya Uma in The Wire says that the concept of a heteronormative, monogamous family is colonial and that a UCC should include not just live-in relationships but also polyamory, chosen families and even more traditional ones like sambandham in Kerala, to state a few.
The process and grounds for divorce vary for each community considering the different attitudes towards marriage. In Christian law, divorce is stigmatised, and this is reflected in its provisions. Under the Divorce Act of 1869, a Christian couple must be separated for at least two years before a court can consider their divorce.
Meanwhile, Parsi couples seeking a divorce have to turn to special courts, which have a jury deciding on their petition. This is despite India abolishing the jury system in the 1960s. The 21st Law Commission pointed out in its 2018 report that the Parsi Marriage and Divorce Act has made the process of divorce tedious, time-consuming and inconvenient for couples.
But it’s not just the process for divorce but even the grounds for divorce that have been flagged as problematic. For instance, under Muslim law, there are several grounds based on which women can seek divorce. But men don’t need to state their grounds for divorce.
A progressive UCC would not just simplify and standardise the process of divorce across communities, but more importantly, make sure that people of all genders have access to the same rights and grounds for divorce.
The progressive UCC drafted by the citizens' group states that all married and live-in partners should be entitled to adopt a child, irrespective of their sexual orientation. Saumya Uma points out in her article that single persons too, should have an equal right to adoption. She also observes the UCC can be made gender-just by giving both parents equal status as natural guardians. Under the Hindu Minority and Guardianship Act, the father is recognised as the natural guardian and only after he dies can the mother be a child’s natural guardian. A progressive UCC would remove this discriminatory aspect of the law.
In India, succession and inheritance laws vary depending on which community you belong to. Most personal laws tend to discriminate heavily against women – whether as daughters, mothers or widows.
For example, if a Hindu woman with self-acquired property dies without a will, her husband, sons and daughters are her heirs. Next in line are the heirs of her husband. If her husband has no heirs, only then will her parents and after them, her siblings stand to inherit her property.
Compare this to when a Hindu man dies without a will. Here, the mother of the man is considered an heir along with his children and widow, and next in line are his father and siblings.
Similarly, the marital status of a Hindu man does not affect how his property devolves. But a woman’s marital status determines how her property is inherited.
Similar gender inequity exists in Muslim law as well. While an only son can fully inherit his parents’ wealth, an only daughter can only take half the share. The remaining share is distributed to male relatives like the father’s brothers, for example. If there are sons and daughters, then under Muslim law, each son gets double of what each daughter gets. A widow gets one-fourth share if a couple doesn't have children or grandchildren, but this reduces to one-eighth if they do. The husband, on the other hand, gets half the share if the couple doesn’t have children or grandkids, but takes one-fourth share otherwise.
A progressive UCC would be gender-neutral, and entitle all children – biological, adopted, surrogate, legitimate and illegitimate - to inherit property.
The restitution of conjugal rights is a provision in the Hindu Marriage Act, the Indian Divorce Act, which governs Christian couples, and the Special Marriage Act. And although this provision applies equally to both spouses, Professor Saumya points out that women are disproportionately and adversely affected by it, as they may be subject to domestic violence, marital rape and unwanted pregnancies.
A Hindu Undivided Family or HUF is a joint family and consists of persons all directly descended from a common ancestor. It also includes the wives and daughters of a male descendent. The HUF is essentially a tax-saving entity and is treated similarly to an individual account. The Law Commission’s 2018 report suggested the abolition of the HUF and said continuing it at the cost of the country’s revenues may not be judicious.
So, could such a progressive UCC be agreeable to all religious communities and groups? The truth is it may be idealistic and implementing any UCC would be challenging, especially in a country as diverse as India. But what is essential is that if the Union government pushes for UCC, it shouldn’t become a tool or weapon to target one community.