UCC (Uniform Civil Code) in India - why is the BJP manifesto promise so complicated?
The Indian legal system is a faith-based pluralist system. In terms of issues concerning marriage, divorce, inheritance, and adoption, it has different laws for different religious communities. This pluralism was a feature of the British Raj, which feared opposition from community leaders. The ruling party of India, the Bharatiya Janata Party (BJP), has proposed a Uniform Civil code which targets such pluralism. Uniform Civil Code proposes that all sections of society, irrespective of their religion, shall be treated equally according to a national civil code, which shall apply to all uniformly. There were three main proposals in the BJP’s campaign: abolishing the special status of Kashmir, construction of a Ram mandir (Hindu temple) at a disputed site in Ayodhya, and the UCC. With the building of the temple and revocation of Article 370 (which grants autonomy to Kashmir), we may see Uniform Civil Code as the next step. But is the promise going to be fulfilled? Is the UCC truly a beacon of equality or will it worsen the religious divides prevalent in India since the Raj?
The UCC has been considered a beacon of equality, with the Supreme Court of India arguing that it aids ‘national integration by removing disparate loyalties to laws which have conflicting ideologies’ (in Mohd. Ahmed Khan v. Shah Bano Begum). The code has taken a central place in politics, with opinions either politically motivated or inclined towards the betterment of society. Some argue that this code will aid the judiciary, who will be better off with less litigation. There is also the feminist argument that the UCC can liberate women from conservative clutches and give them equal rights in issues surrounding marriage, divorce, and inheritance. Conservative religious views have restricted the freedom of women - the UCC can remedy this issue and move towards gender equality.
India is a nation full of diversity and the UCC can foster uniformity amidst a growing religious divide. Within the federal structure of India, the governments of Uttarakhand and Uttar Pradesh have been discussing the possibility of implementing a UCC in their respective states. The Uttarakhand cabinet has agreed unanimously to implement a UCC. However, a central level implementation would be more helpful in comparison to state-wide implementation.
On the surface, it seems as though the Universal Civil Code is the perfect remedy to the issue of the growing religious divide in India. The reality is far from this. There are several issues in the implementation of the code which may worsen the divides it hopes to eradicate. Firstly, there is a constitutional conflict; while Articles 25-28 of the Indian constitution guarantee religious freedom to Indian citizens and allow religious groups to maintain their affairs, Article 44 of the constitution expects the Indian state to apply directive principles of state policy (which recommend a uniform civil code). The UCC may therefore directly contradict the provisions in Articles 25-28. A uniform law may meet resistance from Hindus and other tribal communities in India. Hinduism is full of customs and practices specific to different communities, regions, and states. The code may likely fail to seek uniformity within Hinduism itself. The north-eastern Christian-majority states ensure that their laws follow their customs and not a specific religious law. The Muslim law is also not uniform, with Sunni Bohra Muslims following customs of Hindu law in matters of inheritance and succession. An instance where a uniform code will fail to function is that of adoption. The Hindus permit adoption and it is undertaken for several purposes, whereas adoption is not recognised in the Indian Muslims’ personal laws. India also has a secular ‘juvenile justice’ law that allows citizens to adopt, irrespective of religion. It is difficult to see how the code will tackle contentious issues without large-scale resistance. In different judgments, the Supreme Court has encouraged the enactment of a common civil code. However, the Law Commission in 2018 advised that the code was neither ‘necessary nor desirable’.
There is also fear that the code may be used to advance vested political interests. The UCC could be a ‘vehicle to further alienate minority communities amid a growing climate of intolerance and prejudice’. Debates must be examined with caution, especially amidst growing communal tensions. The feminist justification, one that focuses on the upliftment of women, could be overshadowed by how the government is highlighting the proposal. They are more focused on imposing a communally defined uniformity on minorities. The implementation of anti-conversion laws by the government is contradictory to the proposal of a uniform law that freely allows interfaith marriages. The government's intentions with the code seem unclear.
The proposal of the Uniform Civil Code raises several questions. Which side will the law favour? Which custom will it follow? How will it address points of contention without expressing bias? Will it focus on the protection of women’s rights? These questions remain unanswered. The law, with all its aspirations, will be difficult to implement in a country with such a diverse cultural landscape. This explains why the BJP has not been able to implement the code, despite being in power for eight years.
Sources:
https://www.bbc.co.uk/news/world-asia-india-61589491
https://www.dw.com/en/can-indias-bjp-make-a-uniform-civil-code-a-reality/a-62060985
https://www.bjp.org/manifesto2019
https://www.thehindu.com/opinion/op-ed/the-future-of-a-uniform-civil-code/article65507283.ece