Uniform civil code: One nation, one law

A uniform civil code is an idea whose time has come. But there are complex issues that first need to be resolved

It’s not a term that rolls easily off the tongue. Yet, a ‘uniform civil code’, or to use its more convenient acronym, UCC, has been gaining currency over the past few months. Last week, the flutter of commentary rose again when the Narendra Modi government asked the Law Commission to examine the feasibility of bringing about a UCC.

The concept of one nation, one law is more than a neat hashtag and goes back to the drafting of the Constitution. Back then, the issue was hotly debated—some members of the Constituent Assembly argued for a common personal law for marriage, divorce, inheritance and adoption, while others believed that this was a goal to be achieved in stages. The directive principle—“shall endeavor to secure for citizens a uniform civil code”—was a compromise since the time was not right.

The time has never been right in the sixty plus years since we adopted the Constitution. Yet, we have a new mood in the country.

It’s a mood that is looking with considerable less tolerance at existing gender gaps, particularly where personal laws and religion are concerned. As women threaten to storm male-only mosques and temples, as the courts gird up to examine existing inequities, is it finally time?

Historically, the idea of a UCC has received support from two seemingly opposed constituencies: women’s rights groups and right-wing parties and organizations. Yet, the first stage of reform of the personal laws of Hindus—giving women the right to choose or divorce their partners, some rights in the property of their fathers and husbands, abolishing bigamy—faced considerable opposition from the then Jana Sangh—the precursor of the Bharatiya Janata Party (BJP) as well as the Rashtriya Swayamsevak Sangh (RSS). For many, it’s ironic that the push for a UCC now comes from the BJP.

But the Congress’s track record is no better and it will, in all probability, never live down the shame of pushing back the rights of Muslim women by passing the perversely named Muslim Women (Protection of Rights under Divorce) in 1986. The passage of the Act by the Rajiv Gandhi government effectively reversed a Supreme Court judgement that granted maintenance to divorced Muslim women.

Where do we go from here, and how do we move forward? Can we put aside past acrimonies and suspicions?

Several issues remain.

The first of these is the argument that the time is still not right. Muslims all over the world are under siege. Moreover, there is suspicion among the minorities in this country about this government’s true intentions—common law or majoritarianism? Controversies over beef, saffronization of school and college curriculums, love jihad, and the silence emanating from the top leadership on these controversies have done little to instill a feeling of confidence. Can the government build bridges and instill confidence?

Second, while a UCC has remained a wonderful principle, nobody has actually spelt out what this common code will look like. What are the nuts and bolts of this law? Is it to take the ‘best’ practices from all religions and, if so, which ones? How would it deal with polygamy not just among Muslims but also Hindus and tribals? What will happen to the tax exemptions and breaks granted to the Hindu Undivided Family (HUF)?

One way forward is to look at the UCC in terms of gender reform, a line favoured by many, including myself. But there is a caveat here, too. Can you look at parity of law for all women without first looking at parity between men and women? For instance, says former additional solicitor-general Indira Jaising, will our law-makers consider a concept of shared labour in marriages that would necessarily mean an equal division of assets acquired in the life of a marriage in case of a divorce?

One argument in favour of a status quo and against a UCC is that the courts have in innumerable cases given secular laws precedence over personal, religious codes. In the past 12 months alone, a two-judge bench ruled that Muslim women are entitled to maintenance beyond the iddat(roughly three months) period. It upheld a previous Allahabad high court judgement that “polygamy was not an integral part of religion”. It has questioned why Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others. Earlier still, it gave Muslim women the right to legally adopt children even though this goes against their personal law.

The problem with this line of argument is that it looks at justice on a case-by-case basis. It presupposes also that all minority women have access to lawyers and the courts.

There is another alternative—change from within. Already social organizations within the realm of religion have begun demanding an end to practices such as triple talaq. The All India Muslim Personal Law Board has not, so far, responded favourably even though an online petition by the Bharatiya Mahila Muslim Andolan demanding a ban has already attracted over 50,000 signatures.

And yet, there can be no turning back, no drowning out of voices demanding justice. This Eid, the three-century old Aishbagh Eidgah in Lucknow opened its doors to women to offer prayers for the first time in its history. It was a tiny step towards what could be a new beginning.