Can There Be A Progressive Uniform Civil Code?
What we need is a UCC that is acceptable to all sections of society, gender
and communities
Omar Rashid
31 May 2023
https://www.outlookindia.com/
In October 2017, a citizen’s group that included well-known activist
Bezwada Wilson and musician T M Krishna presented a proposal of a model
‘progressive’ Uniform Civil Code (UCC) to the chairperson of the Law
Commission of India, Justice B S Chauhan.
The draft proposed the dissolution of the Hindu Undivided Family and the
repeal of various personal laws of religious communities, including The
Hindu Marriage Act, 1955, The Muslim Personal Law (Sharia) Application Act,
1937, The Indian Christian Marriage Act, 1872, The Parsi Marriage and
Divorce Act, 1936 and The Hindu Succession Act, 1956. The draft
standardised the process of marriage, partnership, right to adopt, divorce,
custody of child, succession and inheritance in accordance with uniformity
of gender as well as sexuality.
For instance, it proposed that no non-judicial decree of divorce would have
any legal effect. A divorce would be granted by a district court or civil
court on an application by the person seeking it and after hearing the
other spouse. There would be four grounds for divorce—mutual consent of
both persons, irretrievable breakdown of marriage, physical or mental
cruelty by the spouse or mental unsoundness of the spouse. The draft
outlined an inclusive definition of marriage, as the legal union of a man
with a woman, a man with another man, a woman with another woman, a
transgender with another transgender or a transgender with a man or a woman.
The draft of the ‘progressive’ UCC was based on the premise that personal
laws of all religions were beset with various inequities, especially in the
context of gender. Unless the “discrimination entrenched in all personal
laws” was not eliminated, the values and principles enshrined in the
Constitution could not be truly honoured, the group said in a note to
Justice Chauhan.
In 2016, the law commission had invited suggestions and views from public
and organisations after the Ministry of Law and Justice had asked it to
“examine matters in relation” to the UCC.
A UCC has been a long-held agenda of the Rashtriya Swayamsevak Sangh
(RSS)-Bharatiya Janata Party (BJP) combine. In recent elections, both state
and national, the BJP has promised that if elected to power, it would draft
a UCC. In the party manifesto released for the 2019 Lok Sabha election,
which gave Narendra Modi his second term as Prime Minister, the BJP
reiterated its stand to draft a UCC, “drawing upon the best traditions and
harmonising them with the modern times.” The party said it “believes that
there cannot be gender equality till such time India adopts a Uniform Civil
Code, which protects the rights of all women.”
While its contours have not been outlined, the UCC could mean a common set
of laws governing personal matters for all irrespective of gender or
religion. However, despite consistently involving the UCC in its political
and electoral agenda and rhetoric, the BJP is yet to outline a draft for
such a unified code.
What would the BJP’s UCC have in store for the diversity of personal laws
and customs within the Hindu fold? At a time when the Supreme Court is
pressed with the question of legalising same-sex marriage, with the ruling
party opposing it, would the UCC exclude sexuality as a determinant? Would
Hindu women be better able to exercise their right to property, which
according to customs is often bequeathed to sons? Questions are plenty.
On May 15, Pushkar Singh Dhami, the chief minister of Uttarakhand, one of
the few BJP states that have promised to bring in a UCC at the state-level,
said that a committee formed by his government to prepare a draft of the
code had completed 90 per cent work. The committee would submit its
proposals by June 30.
A major section of civil society and Opposition parties have consistently
looked at the BJP’s promise of a UCC with suspicion. They feel that in the
Sangh Parivar’s book, the UCC was a majoritarian means to undermine the
religious identity of minority communities.
But that brings us to the question—can there be a progressive UCC, one that
is acceptable to all sections of society, gender and communities and does
not reflect the ideological prism of the Hindu majoritarianism espoused by
the BJP-RSS?
In the absence of an actual draft or clear-cut goals, public discussion has
so far been limited to speculation. Many experts feel it may not be easy to
implement a UCC that would be acceptable to all communities and groups.
Rather than chasing the utopia of a unified code, they feel, the essence of
an equitable unified code would be achieved if progressive reforms are
brought into the various personal laws.
“Make all personal laws gender just and the laws will cease to be
problematic,” says A Faizur Rahman, secretary general of the Islamic Forum
for the Promotion of Moderate Thought. Rahman has over the years forcefully
argued that a unifying code that was acceptable to all communities was not
possible in a country as culturally and religiously diverse as India. “I
would not even attempt to draft a UCC. It will not be acceptable to all
communities,” he says.
Even those who are theoretically in favour of a unified and equitable code
but not one based on majoritarianism, argue that the process should start
by each community reflecting on their own personal laws and comparing it
with present-day norms of human rights and equality.
Hasina Khan, a well-known feminist activist from Mumbai, advocates for the
removal of gender discrimination in personal laws and making them inclusive
rather than exclusive. What if she had to draft such a UCC? “I would not
use the term UCC but a gender-just law,” she says. This would mean that
anyone, be it one in a live-in relationship or a queer group, heterosexual
group or a couple in companionship of some form, they should have legal
rights and recognition. There should not be any burden of proof for
self-determination regardless of gender identity, she says.
Khan, who as part of her group Bebaak Collective, had approached the Law
Commission for suggestions on UCC, especially with regards to Muslim
personal laws, stresses that polygamy and practices such as halala need to
go. Also, she is in favour of making the Dissolution of Muslim Marriages
Act, 1939 “gender neutral” so that the practice of unilateral talaq (by men
to women) is over.
At present, if a Muslim woman wishes to divorce her husband, she has to
take the trouble of making an application to the court. A Muslim man,
however, can unilaterally divorce his wife under personal laws. Apart from
this, Khan also pointed to the unequal inheritance and property rights
under Muslim personal laws as well as in other religious personal laws. On
the question of succession of property, there is no uniformity under Hindu
laws on the inheritance of agricultural land by women who often face
exclusion. “Few states have given daughters rights at par with sons but
inheritance is a big issue across the country,” says senior lawyer Colin
Gonsalves. He is in favour of a UCC but one based on constitutional values.
“I don’t want a BJP code. I want a constitution law code,” he stresses.
While several commentators often engage in elaborate discussions on a
possible UCC covering various aspects of personal laws, Gonsalves says “we
must deal with the roots first and the branches later.” The key to
achieving a UCC in essence is to simply remove all forms of discriminatory
customs and traditions from personal laws. “If I had to draft a UCC, I
would sum it up in one line. Any custom, practice or tradition which
discriminates between male and female is unconstitutional and henceforth
shall be treated as void,” he says.
The ‘progressive’ draft on succession and inheritance says that
every person, whether adopted or biological, upon the parent’s death, will
have an equal share along with the surviving parent in the property of the
deceased parent, irrespective of their gender, sexual orientation or
religion. Also, non-heterosexual married couples, or couples in partnership
will be equally entitled to legally adopt a child as heterosexual couples
in similar relationships.
Former attorney general of India Soli J. Sorabjee, in a letter to Justice
Chauhan supporting the ‘progressive’ UCC draft, had stated that the
recommendations of the Law Commission need to be far-sighted and
progressive. “The Law Commission should obviate apprehension that anything
uniform, would be majoritarian,” Sorabjee wrote.
In August 2018, in a 185-page consultation paper, however, the law
commission said that the UCC “is neither necessary nor desirable at this
stage.” The commission rather suggested a series of amendments to personal
laws and further codification of certain other laws, particularly with
respect to succession and inheritance.
While stressing that efforts have to be made to reconcile our diversity
with universal and indisputable arguments on human rights, Justice Chauhan
said that the term secularism would have true meaning if discriminatory
practices within a religion did not hide behind the cloak of that faith to
gain legitimacy.
Rahman agrees with the Law Commission’s conclusion on the lack of
feasibility of a UCC. It would be better to reform existing personal laws
of each community and bring them in conformity with modern laws or
constitution, he argues.
For instance, in the law of inheritance, there are so many restrictions in
Muslim personal law which do not give women equal rights. A Muslim woman
can inherit only 50 per cent of what a man inherits. In a recent example, a
Muslim couple from Kerala remarried and got their marriage registered under
the Special Marriage Act to ensure that their daughters get a proper share
of the father’s property.
Under the Muslim personal laws, through which they conducted their first
marriage, the daughters would only get a share of his property. Since he
did not have a male heir, the remaining share would go to his
brothers. In the Hindu marriage act, bigamy is a ground for divorce only if
the first wife complains, says Rahman. On the other hand, if a Muslim man
divorces his wife through utterance of triple talaq, he can go to jail.
(This appeared in the print as 'Can There Be A Progressive UCC?')
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June 04, 2023
India: Can There Be A Progressive Uniform Civil Code? | Omar Rashid (May 31, 2023)
