The pointless debate on Uniform Civil Code

Articles of Faith

Once every year or so, some ‘public interest litigant’ or the other takes the issue of a ‘Uniform Civil Code’ (UCC) to the Supreme Court. Sometimes, in a totally unrelated case, the court bemoans the absence of a UCC. In 2018, the Law Commission set itself the quixotic task of trying to build consensus around a UCC before concluding that it was “neither necessary nor desirable at this stage.” It is 2021, and this futile exercise has been attempted again by the BJP’s serial PIL-er Ashwini Upadhyay, who wants the SC to tell the government to make a “uniform law” for adoption and guardianship. The Juvenile Justice Act, 2015 (and its previous avatar since 2007) is, in fact, a uniform law for adoption and guardianship. But the court has still issued a notice in this case.

The misguided exercise to impose a UCC arises from a misunderstanding of Article 44 of the Constitution. It says, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. What it does not say is, what a uniform civil code is.

One reading of this, favoured by the Hindutva right-wing, is that irrespective of religion, region, custom, etc, everyone in India must be governed by the same “personal law” -- that is, the law relating to marriage, divorce, adoption, guardianship, maintenance and succession. When pressed on the details of this law, the Hindutvavadi’s idea of a UCC is: “Why should Muslim men be allowed to have four wives?” Census data suggests that there’s little difference between rates of polygamy among Hindus and Muslims, but the Hindutva proponents persist in this idea of UCC nonetheless, more out of prejudice than anything else. If they truly wanted a UCC, they’d be calling for the abolition of the concept of “Hindu joint family” as no other religion follows this.

But what did the Constitution-makers have in mind with Article 44?

The debates about the UCC were contentious, to say the least. There was almost a neat division along religious lines. While Muslim members (such as Pocker Sahib Bahadur and Hussain Imam) worried whether it amounted to the abolition of religious practices in personal law, there was support for it on various grounds such as the rights of women (as Hansa Mehta argued) and the need to unify Hindu law, which was itself heavily fragmented at that time (as argued by KR Munshi).

Members favouring the UCC addressed the larger principles about why a uniform law was a good idea in theory; those opposed to it wondered what it might mean for their own religious practices, customs and rituals. The Hindu members of the Assembly perhaps had the Hindu Code in mind when debating a UCC; Muslim members worried whether the Hindu Code would be imposed on them with a stroke of the pen. Muslim members perhaps also wondered what the need for a uniform law was since Muslim law had been made uniform for all Muslims through the Shariat Act, 1937.

Ambedkar eventually clarified what Article 44 intends. First, he pointed out, it was only a Directive Principle and not mandatory on the part of the State to introduce. Second, religion was not the sole source of personal law since even the proposed Hindu Code intended to introduce progressive aspects to Hindu personal law borrowed from other jurisdictions. Third, and crucially, a UCC need not be mandatory for all in the first place. Pointing to similar provisions in the Shariat Act, Ambedkar suggested that a UCC could be entirely voluntary.

The Constituent Assembly therefore never really intended to make a UCC compulsory for everyone irrespective of religion. A voluntary UCC, as suggested by Ambedkar, is perhaps already in force. The Special Marriage Act, 1954, is available to anyone who chooses to get married under it (even if they both belong to the same religion). Their properties are then inherited in accordance with the Indian Succession Act, 1872, and they could, potentially, adopt a child through the procedure under the Juvenile Justice Act, 2015. A voluntary, progressive UCC fits completely within the ethos of the Constitution, rather than one imposed on any section of people.

For this reason, much of the “debate” over UCC is pointless and counterproductive. The real task remains as to how India’s personal laws can be made more progressive -- by better recognising the rights of women to maintenance, the rights of same-sex couples to marry and adopt, and such goals. That may seem utopian at a time when renewed efforts are being made to reduce women’s choices regarding partners, but that is exactly what the Constitution intended.