It’s turning out to be the uncrackable code: Uniform Civil Code

The issue of Uniform Civil Code (UCC) keeps coming up in India every now and then. The latest was on last Monday, October 12, when a Supreme Court bench which was hearing a petition “challenging the legal provision that compels Christian couples to wait for at least two years for divorce” (it’s one year for other religions) asked the government whether it was serious about implementing the UCC in the country.

“There is total confusion… we should work on the Uniform Civil Code. Why don’t you frame and implement it,” the Indian Express quoted the bench asking the counsel appearing for the government. Law minister D. V. Sadananda Gowda was quick to respond: “For the interest of national integration, certainly a common civil code is necessary. But it is a very sensitive issue. It needs very wider consultation.” He said a decision “cannot be done in a day or two. It will take its own time.”

The origin of the debate

The UCC debate in India is only a little less than two centuries old. The oldest document is from 1840, a certain Lex Loci (meaning Law of the Land) report, which talked about the necessity of uniformity in codification of criminal laws, but recommended that personal laws of different religions – laws on inheritance, succession, marriage and religious ceremonies – should be kept outside such codification. The Government of India Act of 1858 similarly promised non-interference in personal laws.

The debate on whether all communities should have uniform personal laws began only after independence. In 1951, the then law minister B R Ambedkar resigned from the Nehru cabinet protesting against Nehru’s inertia on the Hindu Code Bill. Back then Ambedkar, a victim of the oppressive caste system and a fierce advocate of uniform civil law, faced flak from all sides – Hindus and Muslims, Congress and RSS. With time the Hindu personal law was codified, and it was hoped that personal laws of other communities would also be amended in tune with the modern times. But things never worked out the way they were envisaged by the constitution-makers.

Ironically, in the 1950s, the Jan Sangh, the forbears of the present-day BJP, bitterly opposed the codification of Hindu personal laws. Syama Prasad Mukherjee, in 1951, went on to say that it would “shatter the magnificent architecture of the Hindu culture”. Nehru was able to reform Hindu laws because he was backed by a majority to offset the opposition. But now the BJP has on many occasions said it is serious about implementing UCC: in fact it was included in the Lok Sabha election manifestos of 1998 as well as 2014.

The Shah Bano case 

The most controversial case relating to the UCC since independence was thirty years ago, in 1985. In 1978, Shah Bano Begum, a 62-year-old Muslim woman from Indore, was divorced by her husband. Begum was brave enough to drag her husband to the Supreme Court, where she filed on him a criminal suit demanding alimony. The SC ruled in her favour, but Begum was subsequently denied the alimony when the Rajeev Gandhi-led parliament, under pressure from Muslim conservative groups, reversed the judgement. Since then, the Shah Bano case has become an emblem of minority appeasement, something the opposition keeps harping on.

For and against the uniform code

In the last few years many liberal intellectuals – Ramachandra Guha, Patrick French, and others – have also made a case for UCC. We should have a “common law to regulate the social practices of marriage, divorce, succession, inheritance, and adoption, this based on the best practices of all laws anywhere in the world, the judgment and selection done from the point of view of gender equality”, Guha opines.

According to another school, though, legislative reforms in different religious and tribal groups “have created a greater degree of uniformity among different personal laws” so much so that the UCC has become more or less irrelevant. “There is more debate and dissent within communities and a concerted attempt to reform family law from within. New evidence suggests that gender inequality within the family bears a greater correlation to socio-economic conditions than the form of religious law. But perhaps, most importantly, the new areas of emphasis on family law reform address questions such as domestic violence which cut across community identities and concerns.”

Here is what some experts and representatives have to say:

Eugene Gonsalves, president, All India Catholic Union: “UCC is not applicable keeping in mind religions – Christianity, Islam – where personal laws are enshrined in the religious order; it’ll create a rift among people, as to which set of rules they should follow… Yes, progressive laws must be implemented: earlier church marriage was considered valid, now we also have to register the marriage in a local court, and that’s ok… Christianity has gone through lot of change, especially in matter so extending rights to women. Pope Francis is a progressive man: I wouldn’t be surprised if tomorrow he says men and women are equal in every matter. In India, we need to have a dialogue: the only way UCC can be implemented is by having leverage for different religious communities.”

Noorjehan Safia Niaz, co-founder, Bharatiya Muslim Mahila Andolan: “There is no other country other than India where oral divorce [for Muslim women] is upheld – not even Pakistan and Bangladesh. A secular Muslim country, Turkey, doesn’t even allow polygamy. We’re demanding a family law that is codified. We want a reform in Sharia law that is based on quranic principles and is gender-just.”

Upendra Baxi, legal scholar: “The most basic duty of a State is to provide security to all the citizens. Consent to a code comes much later… Different communities look at institutions differently: for Hindus, marriage is sacrament; for Muslims, nikahnama is contract; Shah Bano said she’s a pious Muslim woman, she said she wants both religion and progressive laws… In an ideal case, progressive opinion should find its way in the parliament, conservative opinion should be won over by dialogue. If more than half of a community’s population thinks the UCC should be passed, it should be passed… Also, people tend to forget that UCC is not just about Hindus and Muslims, but also all other communities – Parsis, Jains, Sikhs. We also understand very little about tribal laws. But there is no dialogue on it… So if you ask me to summarise, I would say: it’s a question of dialogue, not of imposition.”

How India compares with the rest of the world

There is considerable variation in personal laws across the world. Countries with a significant Muslim population are often governed by the Sharia law, in varying measures. In some countries, Sharia applies to all walks of life: Pakistan, Afghanistan, Iran, Iraq, Saudi Arabia, Yemen, et cetera. In many others, like in India, Sharia applies only to personal laws: Egypt, Malaysia, Sri Lanka, Singapore etc. In yet others, the application of Sharia varies even among the regions: Greece, Indonesia, UAE, Nigeria and Thailand. In the last category of Muslim countries, Sharia is not a part of the legal system at all: Turkey, for example, is a Muslim-majority country with a secular civil legislation since 1926.

Israel is one of the few countries which have, like India, different family laws for the Jews, the majority, called Halakha and the Muslims, who are, like in most countries, governed by Sharia. Another curious example is Lebanon, the most religiously diverse country in the Middle East: Lebanon has more than a dozen separate personal laws for different religions, but no civil laws covering issues such as divorce and property rights. “These laws are administered by autonomous religious courts with little or no government oversight, and often issue rulings that violate women’s human rights.”

In the Christian-majority countries, there is a clear separation of church and state – but again with varying degrees. Most western countries allow for absolute freedom of religion – worship, dress, and other religious practices – but laws of marriage, divorce and inheritance are common for all citizens. (The only concession they make is with the aboriginals, who – as in the United States – have autonomy in matters of marriage and divorce.)

France makes for an extreme case: it has laïcité, what is often referred to as a militant version of secularism. The separation of church and state in France is so complete that it makes life difficult for the minority Muslim population who want to express their faith publicly.

Most experts say it’s difficult to perfectly map the personal laws across the world because they frequently overlap with other laws depending on the country. But they all agree that India’s case is the most exceptional one. “It is superficial to draw parallels with other countries,” says lawyer Saurav Dutta, “because India has a very unique kind of secularism (so much so that one wonders if it’s secularism at all). India has mostly similar criminal laws and different personal laws for different communities. But sometimes they overlap: what qualifies for rape in one community, for example, might not qualify in another.”

But gender is not the BJP’s biggest concern, national integration is. On this, Niaz of the Mumbai-based Bharatiya Muslim Mahila Andolan says the “makers of constitution were sensible enough to put up UCC as a directive principle – something that the State should strive for – and not as a fundamental right. What matters is equality in laws, not uniformity. Imposing UCC in the name of national integration at a time when communal incidents are rising is a bad idea.” But what if all other minority communities agree on one? “Let them say that first.”