The strange case of Uniform Civil Code: How lack of political will has reduced it to a mere soundbite

On the face of it, the renewed debate on the need for a Uniform Civil Code (UCC) to replace the existing myriad family laws has all the feel of an unrelenting Groundhog Day when the same events appear to recur in exactly the same way day after day. In recent weeks, we have been treated to familiar arguments from an all-too-familiar cast of proponents and opponents of UCC. But look closely and you’ll notice a significant difference from its previous outings. The focus this time is not on a single national Uniform Civil Code as envisaged in the Constitution but on state-level common codes applicable only to residents of a particular state. It’s an important shift which has not received enough attention, but it tells us something about the larger politics that has shaped political parties’ attitudes towards the issue — not to mention the dilemma it has posed for them. And I mean all parties irrespective of their political affiliations. The dilemma lies in an innate tension between their need to be seen to be doing something to secure implementation of an important constitutional directive and a lack of political will to push through a politically controversial measure and risk a communal backlash. The dilemma is particularly acute for the BJP because unlike the so-called secular parties it has been very gung-ho in advocating a UCC. The issue has been on the top of its agenda alongside the construction of Ram Mandir and abrogation of Article 370 — and has regularly featured in its election manifestos, including the 2019 elections. But it has allowed the issue to remain on the back-burner. With Ram Mandir and Article 370 out of the way, the pressure to deliver on UCC has increased ahead of the 2024 elections. The current debate is intended to underline the party’s continuing commitment to it, but clearly it’s not yet ready to go the whole hog and hence the move to focus on state-level civil codes. They will replace the existing freewheeling regime of family laws. In depositions in the Supreme Court and the Delhi High Court in response to appeals seeking implementation of UCC the government has stated that states are free to bring in local uniform civil codes as issues like marriage, divorce, inheritance, and property rights are on the Concurrent List and not in the exclusive domain of the Centre.

Goa, it says, already has such a law.  

As for a Central law, the government says it has asked the Law Commission to examine it in view of the sensitivities involved. Yet, barely four years ago a previous Law Commission concluded that a UCC was “neither necessary nor desirable” but recommended reforms to existing personal laws to remove discriminatory provisions, particularly against women. In its report, the 21st Law Commission said: “In the absence of any consensus on a uniform civil code, the commission felt that the best way forward may be to preserve the diversity of personal laws but, at the same time, ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India.” Nothing has changed since that report came in 2018 to warrant another review by the present Law Commission raising questions whether it’s really an attempt to push the issue in the long grass. For context, the three-year term of the current 22nd Law Commission will end next year but it remains dormant as a chairman is yet to be appointed. Even if one were to be appointed tomorrow, the commission will have little time to delve into such a complex issue within the remaining few months of its term. Meanwhile, experts have questioned the logic of state-level common civil codes pointing out that state-specific laws are not the same thing as one Uniform Civil Code applicable to all Indian citizens across the country irrespective of where they live. Article 44 of the Constitution pointedly entrusts the Central government with the task of securing a uniform civil code “throughout the territory of India”, not local laws. “A state-level uniform civil code seems to be prima facie incompatible with Article 44 of the Constitution which proclaims that the ‘State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ The all-India extent of the proposed code inherent in this phraseology is too conspicuous to be overlooked,” says Dr Tahir Mahmood, former Chair, National Minorities Commission and Member, Law Commission of India. He agrees that family and succession laws are on the concurrent list but points out that “a law meant to be equally applicable in the entire country can obviously be enacted by Parliament alone”. As for the Goa law it’s not a new legislation but a legacy of the outdated colonial Portuguese Civil Code of 1867. It was meant to last “until amended or repealed” by “a competent authority” but still remains in place. The SC too has held that a single national law is needed to enforce a common civil code applicable nationally to promote “national integration by removing desperate loyalties to laws that have conflicting ideologies” as Justice YV Chandrachud observed during the Shah Bano case way back in the 1980s. But the Centre’s new “states first” policy has prompted chief ministers of BJP states to launch a high-decibel campaign in support of regional common family laws. Assam chief minister Himanta Baswa Sarma, Uttarakhand’s Pushkar Singh Dhami and his Himachal Pradesh counterpart Jai Ram Thakur have emerged as the most vocal advocates. But their declarations are long on rhetoric while short on specifics of how they are going to go about it. All that they have said is that their governments will be “examining” the implementation of a Uniform Civil Code.  There’s no indication of what such a code might look like beyond vague references to “protecting” rights of Muslim women. Assam CM has said such a law is needed to give “justice” to all Muslim women, especially protecting them from the scourge of polygamy. His other peers have been vaguer. In the interest of perspective, it’s important to point out that all communities, including Hindus, have their personal laws and practise them despite the fact that a secular alternative in the form of the Special Marriage Act and the Indian Succession Act is available. Contrary to the popular perception it’s not just a Muslim issue but cuts across communities with all keen to preserve their traditional practices as a measure of religious and cultural identities. True, Muslims are more sensitive to any tampering with their personal laws arguing that they derive from Sharia and are therefore “untouchable”. However, the lack of progress on the issue over the past 70 years is not down to Muslim opposition alone but a widespread reluctance across communities to give up deeply-entrenched practices for a newly-minted one-size-fits-all law. Forget the Congress, it’s telling that the successive BJP governments have shown little enthusiasm for it. Indeed, the Supreme Court has repeatedly expressed its frustration over what it has variously called “confusion” and “incoherence” in the government approach to the issue. In January, it gave the Central government one “last opportunity” to make its stand clear, setting it a four-weeks deadline. Following which the government, as noted above, came up with the formulation of state-wise uniform civil codes. The idea of a Uniform Civil Code has foundered not so much because of Muslim obstinacy, though that has been a factor but because of a lack of political will at the Centre under successive regimes of different hues. It’s not widely known that there’ a significant section of Muslims who favour a common secular law — and more can be persuaded to accept it if it is done after serious and transparent consultations with the community. And the process is run in a collegial manner rather than as an antagonist exercise: a “good” secular law versus “bad” Muslim Personal Law as has been the tendency. “There is nothing wrong in placing the whole nation under a single law of family rights and succession. This has, however, to be done in compliance with the constitutional guarantees for equality before law and equal protection of laws,” Dr Mahmood said. Broad contours of such a law are already there in the form of the Special Marriages Act 1954 combined with elements of the Indian Succession Act 1925 relating to inheritance. Together, they were meant to form the basis of a Uniform Civil Code with the then law minister CC Biswas hailing it as a “first step towards a uniform civil code”. The fact that nearly 70 years later we are still stuck at that “first step” is more a reflection of a lack of seriousness on the part of the political class across the ideological spectrum. For far too long, all political parties and successive governments have played fast and loose with this issue (often playing “good cop and bad cop”) to suit their agendas. There’s a political vested interest in keeping the threat of a UCC dangling over minority communities like the Sword of Damocles. It’s time to end the farce and decide one way or the other. If the Modi government is really serious, it should set the ball rolling by initiating a nationwide cross-community consultation on improving and expanding the scope of the Special Marriages Act and the Indian Succession Act combo as a template for a UCC. So-called state-level UCCs is a pre-election fudge and will do nothing to address the main issue. The ball is firmly in the court of the political establishment. Either, it should be ready to play it, or stop talking about it and blaming everyone else for its own lack of will. Hasan Suroor is an independent commentator and has written extensively on the issue. Views expressed are personal. Read all the  Latest News ,  Trending News ,  Cricket News ,  Bollywood News ,  India News  and  Entertainment News  here. Follow us on  Facebook,  Twitter and  Instagram.