Will all cousins be allowed to marry, or nieces their uncles? Or will the new Uniform Civil Code (UCC) be a ban for all, including those communities currently exempted from the Hindu Marriage Act’s ban on ‘spind’ marriages? Do we all have to follow Christian family law when we seek divorce? Will the Muslim Personal Code rules apply to inheritance or sharing property with parents if one dies intestate or possibly under Parsi rule? Will everyone be allowed to avail the attractive tax benefits of Hindu Undivided Family (HUF)? Or will it disappear for everyone alike? All Indians will be forced to follow Santal customs? Or Naga? (Incidentally, even the Code of Criminal Procedure, 1973 is not applicable in Nagaland).
Nothing is known as there is no publicly available draft of the UCC discussed by the BJP What we do know is that the Modi government dislikes diversity and sees diversity as a threat to the Indian Union. It said this in an affidavit filed in the Supreme Court in October 2022 in response to a petition by the UCC. The central government has said that citizens of different religions and communities obeying different property and marriage laws are an “insult to the unity of the nation”. Prime Minister Narendra Modi had also last month referred to “separate laws for separate communities” and said the country cannot run on a dual system. Strangely, this is not at a meeting or a speech on the matter, but while addressing the booth-level workers of the BJP in Bhopal. It is clearly in an electoral context that the UCC is being referred to.
But here is the catch. BJP may be electorally picking on undigested bones. The fact is that an attempt to suddenly impose a UCC on all Hindus would also be a disaster. Maybe that’s why there is no draft. For example, in Uttarakhand, where the BJP state government has set up a committee under Justice (retd) Ranjana Desai, to do a job for the state, there have been 13 months of consultations, 38 public meetings, but no report yet.
The emphasis is on uniformity and not on being progressive or good or redemptive. So what or whose laws will be imposed on the whole nation?
Instructions or pPolicy?
Although Article 44 of the Constitution – contained in Part IV, i.e. Directive Principles of State Policy – speaks of a UCC, it is non-justiciable and only a normative objective. The Directive Principles (Articles 36 to 51) are violated with impunity and often on a daily basis by the State. Just consider Article 43A, on the same page of the UCC, which reads, “The State shall take steps, by appropriate legislation or otherwise, to ensure the participation of workers in the management of enterprises, institutions or other bodies. No art.”
Returning to Article 44, Dr. BR Ambedkar, in November 1948, envisioned a way around it: that a voluntary proposal could be the way to bring consensus to such widespread practices; “A provision by way of commencement that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that the application of the Code at an early stage may be entirely voluntary (…) therefore the fears expressed here by my friends are entirely nullified. will be done.”
Also Read: BJP’s slogan for uniform civil code driven by aim to unite, not divide Indians
In fact, there is already a Special Marriage Act, 1954, which provides a legal umbrella for inter-religious, inter-caste marriages. inside intimate state, Pervez Mody studied “the protections (and obstacles) presented by the law to those who, in the eyes of the state, transform their new form of intimacy into marriage”. A truly progressive approach would be to expand the legal boundaries of how ‘intimate relationships’ and ‘family’ are thought of, ideally to break up racial intermarriage and even eliminate caste. India needs a civil code that is not uniformly progressive, but uniformly progressive.
The BJP’s target may be Muslims but enough groups who are part of the party’s electoral calculus — such as tribals, Goans, people from northeastern states, Sikhs, Parsis and Christians — have made their case and want to break out of an already unknown uniformity. wanted to impose. This opposition will spell disaster for the BJP if they pursue the issue in an election year. Perhaps this has reassured Union Home Minister Amit Shah’s 12-member Nagaland government delegation, led by Chief Minister Nephiu Rio, which is considering exempting Christians and some pockets of tribal areas from the scope of the proposed controversial UCC. The Nagaland state government actually said so in an official press release on July 7. Hence, in Schedule Six, the box for exceptions is already being carved. Article 371 (A to J) makes exceptions mandatory for territories and persons. So, once the decision is made, who will be exempted and who will not be ‘uniform’?
The Law Commission is being relied upon as the nodal body to work on the UCC to prepare something that the BJP wants. But the Law Commission has already clearly stated in paragraph 1.15 of a detailed report of 2018 that a UCC is “neither necessary nor desirable”. To quote the full sentence, “This Commission has therefore dealt with discriminatory legislation instead of providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards the recognition of differences and the mere existence of differences does not imply discrimination, but rather indicates a strong democracy. This is in stark contrast to the ‘one size fits all’ sought by a majority government.
How much the BJP government cares about the sanctity of the Law Commission is evident from at least two incidents.
First, it ignores the recommendation of its own appointees to the 21st Law Commission from 2018 saying that the UCC is a no go and private laws should only be urged to break out of bad practices.
Secondly, this government has not bothered to appoint members to the 22nd Law Commission over the years. 22n.d The Law Commission was a ghost commission for almost three years of its tenure. Announced on February 21, 2020, it was left vacant for two years and nine months of its three-year tenure. A Chairperson, Justice Rituraj Awasthi (Retd.), finally assumed office on November 9, 2022. It has now been extended till August, 2024.
When the 21st Law Commission released its questionnaire in the public domain in November 2016, it received over 75,378 responses. This time the 22nd Law Commission had to deal with 46 lakh responses. What is the process for sifting through this? What is the process of re-inventing the UCC wheel? Nothing is known.
Progressive Civil Code
In 2017, a group of eight eminent persons including musician and writer TM Krishna, activist Bejwada Wilson, author Mukul Kesavan, lawyer Dushyant Arora and actor Gul Panag developed a progressive draft code. They envisioned the abolition of HUFs, gender-neutral marriages and inheritance laws, which would give all children – biological, adopted, surrogate, ‘legitimate’ and ‘illegitimate’ – the right to inherit property.
At the root of the problem is how Modi and his government view diversity. A good talking point for foreign travel, it also came up in Paris on Thursday. But it is an “insult to the unity of the nation” for domestic businesses.
Like the many species of plants and animals in the Amazon forest, India’s diversity is one the truth. But inclusion or a wholesome and plural pastiche is wanting the law, which tells what a society wants to do with its diversity. As a modern democracy in the 1950s, India was anxious to embrace it. The same cannot be said of India for 75 years.
Also Read: BJP equates UCC with gender justice. But can it end the discrimination built into private law?
The problem with seeking a UCC is the obsession with the ‘U’. 2023 calls for a progressive or a P, a PCC. But a majoritarian BJP is keen to cling to anything it hopes will galvanize its base. It is clear that the intention is to discard the efficacy, in this case, of its foundation saying that it destroyed Muslim personal law.
The BJP also likes to say that it has been able to impose ‘uniformity’ of Hindu law but there is no Hindu law that would be acceptable to all Hindus and non-Hindus across the country (ie, not just Muslims, but Christians, Parsis, tribals, Sikhs etc.) any practice. That dives into the details, even a stitched quickie code, would be a Pandora’s box, full of material unacceptable to all concerned.
So as a concrete proposition the UCC is AWOL. Try convincing any Hindu family in the Prime Minister’s constituency in UP that it is okay to marry one. uncle or first cousins. And try to convince a Hindu family in the foreign minister’s home state of Tamil Nadu to stop it.