The Uniform Civil Code in the news again, prompting reactions and speeches even though the government is yet to present any concrete blueprint. What the Uniform Civil Code is not going to do has been made clear – it will not permit same-sex marriages nor deal with live-in relationships nor engage with the complexities of the exemptions granted to the North Eastern states under the Sixth Schedule of the Constitution nor enter into a conversation over federalism (will Goa continue to have its own code? Will the new potential code in Uttarakhand continue in its proposed form once the national code is brought about?)
Very often, the reactions to the code are reported in a way that oscillates between reports of speeches by Prime Minister Narendra Modi or Bharatiya Janata Party leaders who are almost always men, and these are followed by reactions by the All India Muslim Personal Law Board, also men. Such reporting itself encourages a false binary between the BJP and the All India Muslim Personal Law Board, which is not only not representative of the views of most stakeholders but importantly, it betrays the bogey of women’s rights on which the whole debate is mounted.
The problem with the tone of this debate is that while the Centre continues to harp on about a Uniform Civil Code, it has individually opposed all moves towards marriage equality. It remains protective of the marital rape exception, it remains suspicious of live-in relationships, it has spoken categorically against same-sex marriages, it is positioned strongly against inter-religious marriage, and yet citizens are expected to believe that the uniform code the government proposes will be premised on equality and “women’s rights”.
The 21st Law Commission in its report not only confronted inequality that prevailed in religious personal laws but also proposed potential ways to imagine the codification of personal law that would align it with fundamental rights. What it broadly suggested was that working within the discourse of tradition is sometimes more meaningful as it also ensures greater compliance by citizens in a religious country like India.
The Commission’s 2018 paper speaks of amending the Muslim succession law to ensure equal inheritance by daughters and sons, and it recommends codifying divorce for Muslim men by extending the application of the Dissolution of Muslim Marriages Act, 1939, to men and women alike. It speaks of simplifying the adoption process and making it available for persons of all religions to opt into.
Similarly in Hindu law, the paper speaks of practices of “matri karar” (or “friendship contract” where two people can be together though one of them is already be married), “Draupadi vivah” and more that have remained preserved under section 29 of the Hindu Marriage Act. Much of this research was produced after detailed consultations with many organisations and individual women. These ideas, in some ways, are far more radical and much more concrete than the invisible code that is all rhetoric and no content.
A draft of a Uniform Civil Code should technically not be difficult to produce as the blueprint already exists in the form of the Special Marriage Act, but the hesitation here for the Centre appears to be precisely that the Special Marriage Act enables inter-religious marriage and will potentially allow same-sex marriages.
The very essence of the Uniform Civil Code, in fact, is that it will and should enable and simplify different forms of marriage, because marriages within communities will continue for those who opt for it, completely unencumbered by any new code. The Uniform Civil Code will have no impact on religious marriage ceremonies and mainly come into effect only in the event of divorce, separation, or in custody battles.
The difference between the demand and decision when it comes to family law has seen an increasingly widening gap. When women sought for triple talaq to be invalidated, it was instead criminalised. Women’s demand for the irretrievable breakdown of marriage in 2013 was shunned and tedious divorces are instead made to look like long-sustaining marriages.
Then there is the other problem with the very aspiration of homogeneity. The idea that the same law will somehow promote integration is inherently flawed because historically, acceptance of difference – federal, religious customary, or regional is precisely what has enabled Indian unity.
The Hindu Marriage Act remains the biggest example of codified law where all customary differences of uncle-niece marriages, levirate marriages, temporary marriages among others remain preserved. Acceptance of difference, linguistic, culinary, social or any other is the very foundation of a federal system of governance.
The argument for recognition of difference is often accused of cultural relativism, or simply put as “preserving gender inequalities in the name of cultural diversity”. The argument for difference, however, is much more complex than that. Codification of personal law to align it with the Constitution, as well as alternate potentially progressive interpretations of religious texts has been undertaken by both courts and parliament at various moments in history, prompted almost exclusively by the women’s movement.
For instance, the Muslim Women’s Protection of Rights on Divorce Act, 1986, that followed the Shah Bano judgement created a legislation that provides an additional alternative remedy for divorced Muslim women. Similarly, the Supreme Court in 2020 declared that Hindu women could inherit ancestral property and that the Hindu Succession (Amendment) Act 2005 could be applied retrospectively.
In 2018, the Supreme Court referenced the Mahabharat to decriminalise homosexuality in India. In 2017 the triple talaq judgement contained numerous observations about triple talaq being simultaneously in violation of the Quran and the Constitution. Piecemeal codification and court judgements have continued to align personal law with fundamental rights since independence.
In judgements and legislation that are not even directly dealing with personal law, religion is frequently referenced. Religious symbolism has been particularly pronounced in the past decade and the inaugural ceremony of the new Parliament being the most recent and obvious example. Given this, those who separate the “idea” of a Uniform Civil Code from its authors appear to be particularly blind to context. A Uniform Civil Code, therefore, much like the Citizenship Amendment Act, 2019, promises neither religious neutrality nor a guarantee of justice.
Saumya Saxena is a British Academy Postdoctoral Fellow, University of Cambridge and former consultant with the 21st Law Commission of India.