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An Expert Explains: The issues in uniform civil code

The Uttarakhand CM has promised a uniform civil code for the state if BJP is voted back to power. A look at what the Constitution says about UCC, previous attempts to reform personal laws, and the way forward.

Uniform Civil Code, Pushkar Singh Dhami, Uttarakhand Assembly elections 2022, Hindu Code Bill Committee, Hindu Code Bill, Article 44, Explained, Indian Express Explained, Opinion, Current AffairsCM Pushkar Singh Dhami on campaign. He has said an expert panel will be set up to draft a UCC if his party is voted to power. (Pushkar Singh Dhami/Twitter)

On the last day of campaigning for the Assembly polls, Uttarakhand Chief Minister Pushkar Singh Dhami promised that the BJP, if re-elected, would enact a uniform civil code (UCC) for the state.

Many appear to believe that a UCC would remove all inequalities in one stroke and create a gender-just society. But it is important to understand that “formal equality” cannot bring about a radical change; what society needs is “substantive equality”.

Dhami has promised to set up a committee for preparing a draft UCC. But the promise of a UCC is not part of the 60-page BJP manifesto for Uttarakhand. The BJP manifesto for the 2019 Lok Sabha elections had stressed there cannot be gender equality without a UCC, and promised a UCC would be drafted drawing from the best traditions and harmonised them with modern times. This implies that the UCC would include the best provisions of all personal laws.

Hindu Code Bill

The Hindu Code Bill Committee was constituted in 1941 but it took 14 years to pass the legislation — and not as one uniform Act but as three different ones: Hindu Marriage Act, 1955; Hindu Succession Act, 1956; and Hindu Adoption & Maintenance Act, 1956.

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Moreover, not all reforms could be incorporated because of opposition from the Hindu right. Even Congress leaders such as Sardar Vallabhbhai Patel, Pattabhi Sitaramayya, M A Ayyangar, Madan Mohan Malaviya and Kailash Nath Katju opposed such reforms. In the debate on the Hindu Code Bill in 1949, 23 of the 28 speakers opposed it.

In 1949, the Hindu right formed an All-India Anti Hindu Code Bill Committee under the leadership of Swami Karpatriji Maharaj, who justified unregulated polygamy. Geeta Press’s Kalyan magazine published a number of articles that favoured polygamy, opposed the daughter’s right to inheritance and questioned the Constituent Assembly’s right to legislate on religious matters.

Syama Prasad Mookerjee, later founder of the Bharatiya Jana Sangh, said in Parliament that instead of the Hindu Code Bill, the government should bring a UCC. While there was substance in this argument, reforming the majority community’s laws is easier than reforming those of the minorities. Several Muslim countries, including Pakistan, have been able to reform Muslim laws but not the laws of their minority communities.

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Dr B R  Ambedkar had to resign as Law Minister. On September15, 1951, President Dr Rajendra Prasad  threatened to return the Bill or veto it. PM Jawaharlal Nehru yielded; the Bill was not passed. When eventually passed after several years, it did not give daughters a share in a Hindu joint family’s property. This amendment came in 2005, during the UPA regime.

The Expert

Faizan Mustafa, currently Vice Chancellor of NALSAR University of Law, is one of India's most eminent experts on constitutional law, criminal law, human rights and personal laws.

Reading Article 44

Article 44 of the Constitution says the state shall endeavour to secure for citizens a uniform civil code throughout the territory of India. The definition of ‘State’, as given in Article 12, includes the overnment and Parliament of India and the government and the legislature of each of the states and all local or other authorities within the territory of India or under the control of the Government of India. If state means state government or local or other authorities, does it mean states or local authorities can make a uniform civil code for the whole of India? It would be ridiculous to say the Uttarakhand Assembly or Dehra Dun Municipal Corporation could make a UCC for the entire country.

The Constitution’s framers used the term “uniform” in Article 44 and not “common”, because “common” means “one and the same in all circumstances”, while “uniform” means “the same in similar conditions”. Different people may have different laws, but the law within a particular group should be uniform. Such a classification is permissible even under the right to equality under Article 14.

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“Civil” means matters where personal rights (not public rights) are in question —such as a contract, or sale and purchase of goods/services or properties.

Even “code” does not necessarily mean one single law in every circumstance. It may mean either one enactment such as Indian Penal Code, or the Hindu Code Bill that includes three different Acts.

While Article 44 uses the phrase “state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use expressions such as “in particular strive”; “shall take steps”; “shall promote with special care”; “shall in particular direct its policy”; “shall regard its primary duty”; “shall be obligation of the state” etc. All of these mean that the duty of the court is far greater in other directive principles than in Article 44. While Article 43 mentions that the “state shall endeavour by suitable legislation”, the phrase “by suitable legislation” is absent in Article 44, which indicates that the framers did not intend enactment of uniform civil code by a single legislation.

Diversity in personal law

It is erroneous to assume that India has different personal laws because of religious diversity. As a matter of fact, the law differs from state to state. Under the Constitution, the power to legislate in respect of personal laws rests with both Parliament and state Assemblies. Preservation of legal diversity seems to be the reason for inclusion of personal law in the Concurrent List (entry No. 5). Had uniformity of laws been the primary concern, personal laws would have been included in the Union List with Parliament having the exclusive jurisdiction to enact laws on these subjects. Bringing amendments to central personal laws with enactments such as the Hindu Marriage Act is possible under entry No. 5, but this power cannot be stretched to include enactment of a uniform civil code for the whole of India. Once a legislative field is occupied by parliamentary legislation, states do not have much freedom to enact laws. Such laws would require Presidential assent under Article 254.

It is also a myth that Hindus are governed by one uniform law. Marriage among close relatives is prohibited in the north but considered auspicious in the south. Lack of uniformity in personal laws is also true of Muslims and Christians. The Constitution itself protects local customs of Nagaland, Meghalaya and Mizoram.

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As an example, take Goa, often cited as a state that already has a UCC. But Hindus of Goa are still governed by the Portuguese Family and Succession Laws. The reformed Hindu Law of 1955-56 is not applicable to them, and unreformed Shastric Hindu law on marriage, divorce, adoption and joint family remains valid. The Shariat Act of 1937 is yet to be extended to Goa, and the state’s Muslims are governed by Portuguese law as well as Shastric Hindu law but not by Muslim Personal Law. Even the Special Marriage Act, a sort of progressive civil code, has not yet been extended there.

While the Uttarakhand CM favours a UCC to ensure equality, reforms in Hindu law have not completely removed gender discrimination. The amount of land actually inherited by Hindu women is a small fraction of what they are entitled to under reformed Hindu law. Even when they inherit land, it is invariably much less than an equal share. The power of will  is used to give the entire property to sons.

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The way forward

If the Uttarakhand government returns to power, one way forward could be to constitute a Muslim Law Reforms Committee, Tribal and Indigenous Law Reform Committee, Christian & Parsi Law Reforms Committees, just like the Hindu Law Reforms Committee formed in 1941. Based on their recommendations, it could take the reforms process forward.

The state would also need a Hindu Law Committee, as some of the existing provisions of codified Hindu law — such as solemnisation of marriage, satpati, kanyadaan, joint family and tax benefits, absolute testamentary powers etc — may not find a place in the UCC, and provisions like dower or nikahnama (prenuptial contract) are to be incorporated in UCC as per BJP’s 2019 manifesto. Are Hindus of Uttarakhand, who are 83% of the population, ready for these reforms?

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The goal of a UCC should ideally be reached in piecemeal manner, like the recent amendment on the age of marriage. A just code is far more important than a uniform code.

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First published on: 14-02-2022 at 04:30:54 am
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