Opinion Uniform Civil Code: Can the debate be extricated from identity politics and refocused on gender equality?

In fact, the UCC discussion has focused largely on marriage, eliding the intricate issue of inheritance. Marriage laws are easier to unify, but they too have complexity. The commonly cited issue, polygyny, is a red herring since a few Indians practise it anyway. The figures are: 1.3 per cent Hindus, 1.9 per cent Muslims, and 1.6 per cent others (NFHS-5, 2019-21). The complexity lies in divergent social and kinship rules that specify whom one can marry. Even Hindus diverge. Those in northwest India forbid marriage (based on sapinda) between anyone related within five generations on the father’s side and three on the mother’s side. Marriages within a village are also forbidden. However, Hindus in the south and northeast India allow uncle-niece and cross-cousin marriages (although uncommon in practice). And Muslims allow marriage even between parallel cousins (for example, the children of two brothers). How will all this be unified?

Inheritance laws present a deeper conundrum. Today, Hindus are governed by the 2005 Hindu Succession Amendment Act (HSAA); Muslims by the Muslim Personal Law (Shariat) Application Act, 1937; Christians and Parsis by the Indian Succession Act 1925 (amended by both communities subsequently), and tribal groups are still subject to custom. Among the mentioned laws, at least six major points of divergence will make unification difficult, and possibly untenable.

First, Hindu inheritance distinguishes between separate property and coparcenary joint family property, giving coparceners rights by birth. No other personal law makes this distinction. Second, within Hindu law itself, states diverge. Kerala abolished joint family property altogether in 1976, but other states retained it, and matrilineal Hindus (as in Meghalaya and Kerala) have different inheritance rules from patrilineal Hindus. Even among the latter, Hindus historically governed by Dayabhagha (West Bengal and Assam) differ from those in the rest of India who were governed historically by Mitakshara. Third, the right to will is unrestricted among Hindus, Christians and Parsis, but Muslim law restricts wills to one-third of the property; and Sunni and Shia Muslims differ on who can get such property and with whose consent.

Fourth, while the inheritance laws of Hindus, Christians and Parsis are largely gender equal today, under Muslim personal law, based on the Shariat, women’s shares are less than men’s, generically. The shares also change with the presence or absence of other heirs. Being embedded in the Koran, this complex structure of rules leaves little scope for reform towards gender equality.

Fifth, land (a key productive resource) is treated differently from other property in some personal laws but not others. The HSAA 2005, for instance, deleted the clause which discriminated against women in agricultural land, but the 1937 Shariat Act governing Muslims continues to exclude agricultural land from its purview, leaving a major source of gender inequality intact. Although Tamil Nadu, Andhra Pradesh and Kerala later amended the Shariat Act to include agricultural land, in many other states, landed property is still subject to tenurial laws which exclude Muslim women from inheriting it, contrary to their rights under the Shariat.

Sixth, social justifications on who deserves to inherit differ. Hindus emphasise sapinda (“shared body particles” in Mitakshara and religious efficacy in Dayabhaga); other communities privilege blood or marital ties; and yet others favour proximity of children’s post-marital residence to provide parents care in old age.

How will these differences be tackled? Divergence apart, it is a contradiction to allow each state to draft its own UCC which is supposed to apply to all Indians. It is important to recall that the current demand for a UCC differs notably from the demand made by women’s organisations in the 1930s. They wanted a UCC for gender equality and lobbied to have it included in the Constitution as a justiciable right. Instead, it was incorporated only within the Directive Principles of State policy and put on the back burner. Today, the UCC debate has become enmeshed with “identity politics”, deflecting it from the original aim of gender equality. And the mingling of legal reform with religious identity has sharpened political divisiveness.

Can the debate be extricated from identity politics and refocused on gender equality, while also allowing democratic choice? There is no easy answer. Discussions among women’s groups in the 1990s highlighted three positions. (i) Encourage each religious community to pursue its own reform for gender equality. (ii) Constitute a package of gender-just laws which would coexist with personal laws, and a person could choose one or the other upon reaching adulthood. (iii) Constitute a gender-equal civil code applicable to all citizens without option, based on the constitutional promise of gender equality, rather than on religious decree or custom. The first two positions clearly have limitations, but can the third be achieved?

For a start, rather than one code covering inheritance, marriage, etc., we should discuss each separately. On inheritance, which is the most complex, a secular law based on constitutional rights will clearly go the farthest towards gender equality. Whether this is possible in today’s divisive political environment remains an open question. But at least we should restart the conversation.

The writer is professor of Development Economics, University of Manchester and author of A Field of One’s Own: Gender and Land Rights in South Asia