UCC - Can India have a Uniform Civil Code?

 Can India have a Uniform Civil Code?

PM Modi’s remarks have reignited the Uniform Civil Code debate. But what exactly is it? And can India have a UCC?

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Uniform Civil Code illustration

A uniform civil code has been on the BJP's agenda. (Illustration: Tanmoy Chakraborty)

Darpan Singh

Darpan Singh

New Delhi ,UPDATED: Jun 29, 2023 17:12 IST

The Indian Penal Code (IPC) was brought in by the British in 1862 to cover all substantive aspects of criminal law. The IPC did not apply to matters such as marriage, divorce, inheritance, adoption and succession. These were governed by personal laws of different religions.

As decades went by, a need was gradually felt for a set of laws to cover these matters. In the 1930s, an All India Women’s Conference sought equal rights for all women---no matter from which religion---in marriage, divorce, inheritance, adoption and succession.

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After India became independent in 1947, the Jawahar Lal Nehru government accelerated the process to reform religious laws through a common code, but only for all Hindus. The idea was to modernise Hindu society and forge national unity. However, the term Hindus was soon to be defined expansively to also include Jains, Buddhists and Sikhs.

Staying true to his “secular and pluralistic” credentials, Nehru followed the British who didn’t usually interfere in the religion-based personal laws of other communities, including Muslims, Christians and Parsis, giving them some kind of autonomy and protection because of their minority status. But it’s also no secret how the British thrived in India through their divide-and-rule policy.

Be that as it may, the two competing desires were manifested even when the Indian Constitution, which came into effect in 1950, said the State shall endeavour to secure for all citizens a Uniform Civil Code (UCC). The idea of a UCC referred to laws that apply to everyone in India, replacing religion-based personal laws governing matters such as marriage, divorce, inheritance, adoption and succession. But the Constitution clarified that UCC was non-enforceable through courts.

In the 1950s, the Nehru government passed, following initial resistance, several laws to codify and reform Hindu personal laws, a process which was started during the British rule of India. The country had many new laws such as Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act.

But the demand for a UCC never died down. Nehru’s first Law Minister was BR Ambedkar, a man who played a crucial role in drafting the Indian Constitution, and who is revered by those championing the causes of plurality, secularism and social justice, particularly for the Dalits. Even Ambedkar had backed a UCC and faced Muslim opposition.

The courts have been quite clear about a UCC. In the 1985 Shah Bano case, the Supreme Court, after two similar orders in the past, batted for a common civil code for greater national integration, and said the Muslim Personal Laws couldn’t be cited to deny Muslim women maintenance from their husbands after divorce. Muslim clerics protested and the Rajiv Gandhi government used his parliamentary mandate to overturn the court order through a law.

The Supreme Court again called for a UCC in 1995 and 2017. However, in 2018, four years after Narendra Modi became the prime minister, India’s Law Commission said a UCC is neither necessary nor desirable at this stage. The Law Commission called for preserving the diversity of personal laws while ensuring that personal laws do not contradict fundamental rights.

It surprised many because a UCC has always been part of the BJP’s election manifesto, and leaders like former Prime Minister Atal Bihar Vajpayee made impassioned speeches in Parliament over the issue. Several BJP-ruled states have, from time to time, talked about bringing a UCC. Uttarakhand is already in the process of framing its common code. Goa has a UCC. Things went back to looking “more normal” in 2022 when the Law Commission found it expedient to deliberate afresh over the subject.

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And on June 28, PM Modi called for a UCC, days after the Law Commission invited views from all stakeholders on the issue, triggering sharp reactions from Muslim clerics and India’s political Opposition.

This excluded perhaps only the AAP which, having damaged the Congress greatly in Delhi and Punjab, has been trying to also mirror the BJP to be able to become the BJP’s main challenger. India's political realities have changed so much since 2014 that the AAP's support for a UCC, though also asking for wide consultations, has come despite two of its top leaders being in jail after being arrested by central agencies on corruption charges. This is also despite that a central ordinance has overturned a Supreme Court order and allowed the Modi government a victory in a long-festering battle for who controls bureaucrats posted to the Delhi government.

ALSO READ | From marriage to adoption, how Uniform Civil Code could subsume personal laws across religions

Having said that, now back to the primary question: can the Modi government bring a Uniform Civil Code? The short answer is, it can, by all means. The Constitution has talked about it, Ambedkar was a votary, the court has batted for a UCC and now PM Modi has, for the first time, spoken in favour of standardising the civil code across the country so openly. The BJP has the numbers in the Lok Sabha. In the Rajya Sabha, the situation may not be as good for the ruling party, but "floor management" can see them through as seen in the past.

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The majority mark in the Upper House is 119.

The number for the BJP and its allies is 103.

Even with one Independent MP and five nominated members, the BJP is 10 short.

The BJD, the only non-BJP party other than the AAP likely to support a UCC, has 9 MPs.

And this is where comes in the AAP which has 10 MPs. If Arvind Kejriwal’s party backs the government’s UCC move, it will further fragment the Opposition which has been scrambling for unity.

Also, 10 Rajya Sabha seats will go to the polls soon.

So, what does it mean? UCC supporters see it as a way to ensure gender equality. For example, polygamy is illegal under the IPC but Muslim men are allowed to have up to four wives under sharia Islamic law (however, polygamy also exists in many tribal communities and it will become an issue for the BJP in the middle of a massive tribal outreach).

But UCC opponents, including some Muslim leaders, see it as a ploy to crush India’s plurality and secularism by diluting rights sanctioned under Islam. They say a UCC will lead to India’s Hinduisation and endanger Muslims and Christians.

While, as almost always, the right answer may lie somewhere in between, what cannot be denied is this: as the UCC debate becomes shrill, it will benefit the BJP electorally. No, not many Muslim women may become PM Modi fans overnight, but many of the Hindus who vote for the BJP would see their party implementing its agenda.

ALSO READ | As clamour for UCC rises, here's what you need to know about Uniform Civil Code

Something similar happened in 2019 when the Modi government had just returned to power. Parliament declared the practice of triple talaq illegal and unconstitutional and made it punishable following a Supreme Court order which had come on petitions behind which the BJP was seen as a potent force.

And it’s a tightrope walk for the Opposition. No wonder, many leaders don’t want to be seen as bitterly opposed to PM Modi’s push for a UCC. They have confined themselves to finding his remarks political, aimed at the 2024 national polls. Of course it’s political.

And even if a UCC is not brought before April-May 2024 when PM Modi seeks a third straight term, the discourse around it, and the resultant sharp divisions, might alone be a significant advantage for the saffron camp. The Ram Temple movement began decades ago, and the structure is likely to be ready for inauguration on January 1, 2024!