By Soutik Biswas
India correspondent Published3 hours ago bbc.com
When it comes to matters such as marriage, divorce, inheritance and adoption, India has different laws for different communities based on their religion, faith and beliefs.
But since Independence there’s been talk of an Uniform Civil Code or UCC, a single personal law for all citizens irrespective of religion, sex, gender and sexual orientation. Even the constitution says the state should “endeavour” to provide such a law to its citizens.
But a common law – resisted both by the country’s Hindu majority and Muslims, the main minority – has remained, in the words of the Supreme Court, a “dead letter”. PM Narendra Modi’s ruling Bharatiya Janata Party (BJP) is now resurrecting the idea. BJP-ruled states such as Uttar Pradesh, Himachal Pradesh and Madhya Pradesh have been talking up the UCC.
To be sure, the UCC has been one of the original campaign promises of the BJP, along with the construction of the temple at a disputed site in Ayodhya, and abolishing the special status of Kashmir. Now that the temple is being built, and Kashmir has been stripped of its autonomy, the spotlight has moved to the UCC.
The Hindu right-wing rhetoric has pushed a common personal law as a counter to what they say are “regressive” personal laws of Muslims – they cite the example of triple talaq – the Muslim practice of “instant divorce” – which Mr Modi’s government criminalised in 2019. The BJP’s manifesto says there “cannot be gender equality till such time India adopts a Uniform Civil Code”.
But, as political scientist Asim Ali notes, the “reality is more complex”.
In other words, framing a UCC will open up a Pandora’s Box with unintended consequences even for the country’s Hindu majority, which the BJP professes to represent. “The UCC would disrupt the social life of Hindus as well as Muslims,” he says.
Personal laws are fiendishly difficult to unify in a staggeringly diverse and vast country like India.
For one, even though Hindus follow a clutch of personal laws, they also recognise customs and practices of different communities in different states. The Muslim personal law is also not entirely uniform – some Bohra Muslims, for example, are guided by the principles of the Hindu law in matters of inheritance and succession.
And then there are different laws for different states when it comes to property and inheritance rights. North-eastern Christian-majority states like Nagaland and Mizoram make their own personal laws that follow their customs and not religion. Goa has a 1867 common civil law that is applicable to all its communities but also has different rules for Catholics and other communities, including one which protects bigamy for Hindus.
Personal laws in India are a subject of common interest to both the federal government and the states. So states have been making their own laws since the 1970s. Years before a landmark 2005 amendment to an existing federal Hindu personal law allowing daughters to have an equal share of ancestral property as sons, at least five states had already tweaked their laws to enable this.
Now consider how personal laws look at different matters.
Take adoption. In Hindu tradition, adoption was undertaken for both secular and religious purposes – to have a male heir to inherit property and for a male descendant to be able to perform funeral rituals of parents. On the other hand, adoption is not recognised in Islamic law. But India also has a secular “juvenile justice” law that allows citizens to adopt, irrespective of religion.
Also, experts wonder, what are the neutral principles to adopt while putting together a common law?
“What principles do you apply – Hindu, Muslim or Christian?,” wonders Alok Prasanna Kumar, a fellow of Vidhi Centre for Legal Policy, a Bangalore-based independent legal policy advisory group.
He says the UCC would have to answer some fundamental questions: What is the criteria for marriage and divorce? What are the processes of and consequences for adoption? What are the rights to maintenance or just division of wealth in the event of a divorce? Lastly, what are the rules of inheritance of property?
Then there’s the politics of it, which can easily lead to a blowback, says Mr Ali. How would a BJP government reconcile an uniform law that freely allows marriages between religions and communities with anti-conversion laws that it has enthusiastically supported to curb interfaith marriages? Or is the party, as Mr Ali suspects, planning to bring in laws in small states without “significantly disturbing the customary practices” of its people?
Not surprisingly, even the Supreme Court has sounded confused about the UCC. In different judgements over the last four decades, it has nudged government to enact a common civil code for the “integrity of the nation”. In 2018, the Law Commission, a body to advise the government on legal reform, said the code was neither “necessary nor desirable”.
Clearly, the UCC is not a magic bullet. “Uniformity doesn’t even bring any value to a law let alone a big value. What makes a good law is that it is just, clear and constitutional,” says Mr Kumar.
To address gender inequities in personal laws nothing comes in the way of trying to amend those rather than demanding adherence to a common law, experts say. That would essentially mean adopting best practices from all personal laws.
Mr Ali believes that many BJP-ruled states may be pursuing the UCC not because it’s particularly popular there or fetches more votes. “It is more to build their political capital, and ensure their survivability within the new BJP structure where they have to constantly burnish their Hindu credentials,” he says.
Others wonder why the BJP has not been able to come up with the code even in states despite being in power for a long time. With general elections two years away, does the party believe that the time has come? “The UCC is a lot of noise at the moment, and the debate is not even political yet. Show us a draft of the proposed law first,” says Mr Kumar.