On the surface, Uttarakhand’s UCC Bill (herewith U-UCC), passed without public consultation or debate, appears to be a progressive document on some counts, such as succession/inheritance, even while being deeply problematic on other counts, such as its clauses on “live in” relationships. But, delving deeper, even the inheritance rules have serious flaws and silences.
The U-UCC has simplified inheritance rules to make them gender equal on all counts, doing away with prior distinctions between separate and coparcenary joint family property (JFP) in Hindu law, and the unequal shares for women under Muslim law. It thus deceptively appears to be the kind of “gender equal” code that many women’s rights scholars and activists have been suggesting.
So what is the problem? It is multi-fold. First, take women’s shares: Hindus (along with Sikhs, Jains and Buddhists) are governed today by the Hindu Succession Amendment Act 2005 (HSAA 2005), applicable across India. For those earlier governed by Mitakshara (covering over 80 per cent of Indians), the inheritance law differentiates between separate property and coparcenary joint family property. In the latter, the HSAA 2005 grants both sons and daughters (married or unmarried) equal rights by birth that cannot be willed away by fathers. This gives daughters protection from being disinherited due to male bias, at least for joint property, even if separate property were willed away to sons.
Under the U-UCC, however, all property can be willed away. Given biases against endowing daughters with property, even the limited protection they had will thus be lost. The right way forward would have been for the U-UCC to restrict testamentary rights on a part of the property, so that daughters could inherit at least something intestate. Several European countries have restricted testamentary rights.
Two other points are notable. One, now class 1 heirs (those who are the first order of inheritors) include not only the intestate’s son, daughter, widow and mother (as under HSAA 2005), but also the intestate’s father (51:6). Both parents are entitled to one share “together”.
This means that the mother will get half of what she would have got under HSAA 2005. Two, a widow or widower of any predeceased relative of an intestate loses the right to inherit if s/he remarries. This is both unfair and regressive, since the person (say, a daughter-in-law) would have contributed to the intestate’s family well-being prior to re-marriage. Simply remarrying cannot justify a disqualification. The HSAA 2005 does not do so.
For Muslim women, the U-UCC at one level brings gains, as it promises equal shares to daughters and sons, whereas under the law currently applicable (the Muslim Personal Law Shariat Application Act 1937), women get half the property shares of men, and their rights in agricultural land are subject to discriminatory land reform laws. However, the Sharia restricts testamentary rights, assuring women of at least some property and protection against male bias. The U-UCC provides no such protection, apart from the likely resistance from Muslims to implementing a law so contrary to the Sharia.
For Christian women, the widow who would have received half the intestate’s property will get less under the U-UCC, since the property will be shared equally with children. Second, take religion and type of property. For Hindus, the U-UCC creates a conundrum. Many families hold land, houses, and even businesses as coparcenary JFP. What will happen to this property? Will it be de-recognised and partitioned off? And what about businesses registered under the Hindu Undivided Family (HUF), which is recognised as a legal entity under Indian tax law, receives tax benefits, and is defined on the basis of Hindu personal law. The U-UCC ignores this issue altogether. How will Hindu business families in Uttarakhand, who have HUF property, react?
For Muslims, the U-UCC totally ignores the specifications on which eligible heirs and inheritance shares are decided under the Sharia. The latter recognises a complex order of heirs, depending on the presence or absence of particular categories of relatives. This order is quite different from the simple order listed in the U-UCC. Moreover, the Sharia draws from the Koran. Some 14 per cent of Uttarakhand’s population is Muslim. The proposed changes thus have considerable potential to cause inter-religious divisiveness and conflict.
Third, take tribals: The U-UCC leaves them out of its purview. Tribals are today subject to gender-unequal customary laws in most states (possible exception being largely matrilineal Meghalaya, which favours women over men). Leaving out tribal communities from a system of codified law is an opportunity forgone.
Finally, the U-UCC, if ratified by the President of India, will become the law in that state, presumably overriding central government laws. If every state were to similarly enact its own UCC, then we will have 28 different UCCs — contradicting any claim to a “uniform” civil code for India.
Written with inadequate examination of existing laws and rights, and passed in haste without due public feedback, the U-UCC has created more confusion than it has offered solutions.
The writer is professor of Development Economics, GDI, University of Manchester; also affiliated to IEG (Delhi)
The U-UCC has simplified inheritance rules to make them gender equal on all counts, doing away with prior distinctions between separate and coparcenary joint family property (JFP) in Hindu law, and the unequal shares for women under Muslim law. (Image source: PTI) 
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