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On the fateful day of November 23rd, 1948, the Constituent Assembly of India bore witness to a rather animated debate. The draft Article 35, (now 44) on the Uniform Civil Code (UCC) was placed before the Assembly for a discussion followed by a final vote. Building upon the argument of a secular state, M Muhammad Ismail, a Muslim League Member from Madras, argued that no step should be taken which, in effect, interferes with the religion of the people and the personal laws adhered to by communities for generations and ages. Alladi Krishnaswamy Ayyar, a congress member from the same province on the other hand, opined that UCC aimed to arrive at a common measure of agreement on matters of inheritance, marriage, and other related aspects which in turn would lead to harmony among all the people of India. Could these people then have foreseen that their debate would one day take centre stage in the national electoral agenda? The Uttarakhand government would certainly fail to relate.
In an already polarised country, the Uttarakhand government pushed the extremes by enacting the Uttarakhand Uniform Civil Code on February 7, 2024. This marked for many, the beginning of an experiment that would provide valuable data for judging whether this Act can lend itself as a model for replication across India. Before delving into any argument against framing a law that even the Law Commission declined to recommend, it is important to summarise how it came into being, and what this act contains. The Seventh Schedule of the Constitution provides that both the central and state legislatures can legislate on matters of family laws. In pursuance of this power, the Uttarakhand government formed a committee led by the retired Supreme Court judge, Ranjana Prakash Desai to prepare a draft for the UCC in 2022. The committee consisting of retired judge, Pramod Kohli, social activist, Manu Gaur, former Uttarakhand Chief Secretary, Shatrughan Singh, and Vice Chancellor of Doon University, Surekha Dangwal, compiled a draft report spanning over 740 pages, divided into four volumes. This report eventually culminated in the bill that we see today.
As its preamble sets out, the Act seeks to regulate and govern various dimensions of personal law. It is laid out in four parts: the first one deals with the subject of marriage and divorce, the second talks about succession, namely intestate and testamentary, the third about live-in relationships, and part four deals with repeals. Interestingly, it applies not only throughout Uttarakhand but also to residents living outside its territories. The tribal population, though, has been left out of the purview of this act.
Qualms of Federalism
Given Article 162 of the Indian Constitution indicating the executive power of the state along with Entry 5 of the Concurrent List in the Seventh Schedule, the state of Uttarakhand in principle, can enact UCC within its territory. However, in practicality, it has been quite the tohubohu. A Public Interest Litigation (PIL) by advocate Ashwini Upadhyay to formulate UCC was filed before the Delhi High Court in 2019. After more than two years, the Ministry of Law and Justice filed a 12-page affidavit, as per which only the Parliament of India can undertake the task of drafting legislation on UCC. Central government further stated that it will consult various stakeholders involved in the matter, after receiving a report from the Law Commission of India. The 21st Law Commission headed by Justice BS Chauhan came out with a consultation paper on ‘Reform of Family Law’. As per this paper, UCC is neither necessary nor desirable. The Commission stressed on removing discrimination against women within communities rather than looking for equality between communities in terms of family law. “In doing so, the commission has endeavoured to protect best and preserve diversity and plurality that constitute the cultural and social fabric of the nation,” (Law Commission of India, 2018).
Despite this entire premise, in what can only be seen as a complete U-turn from their original stand, Law Minister Kiren Rijiju on December 15th, 2022 while addressing the Rajya Sabha said that the states are empowered to enact personal laws that decide issues such as succession, marriage, and divorce, in their endeavour to secure a uniform civil code. This statement was made at a time when several BJP-ruled states like Uttarakhand, Gujarat, and Madhya Pradesh had taken steps to implement the UCC. This lack of clarity left a lot of space for political pundits to weigh in on the issue until the UCC in Uttarakhand came into effect, changing the debate entirely.
Discussing Demographics
Before getting into the finer details of the Act, it is important to understand what fueled the initial debate on this burning topic. When the leaders of BJP (formerly Jan Sangh), started the discussion on the need to bring a UCC, deducibly their justification lay in their concerns about the possibility of a communal transformation of the demographic structure of our country. Slogans like “Hum Paanch Humare Pachees” (English: Five of us and twenty-five of ours) found audiences in General Election rallies. However, these myths have been categorically busted by data from the National Family Health Survey (NFHS) 3, 4, and 5.
Contrary to what was predicted, NFHS-5 saw declining birth rates across all communities in the country with the gap between Hindus and Muslims narrowing. This has been the trend since the 2011 census. Data also shows a downward trend since 2005-06, in the difference between the overall fertility rate of Hindus and Muslims which used to be higher in the latter’s case. Similarly with Polygamy, as per the data from NFHS-3, the number of men with more than one wife was only 1.2%. This declined to 1% in NFHS-4 and further down to 0.9% in NFHS-5. Ironically, polygamy is widely prevalent among the tribal populations, the only group outside the ambit of the Uttarakhand Act with the top 20 districts throughout the country, all housing various tribal communities. Overall, a secular decline in polygamy can be seen as linked to better education, development, and progress up the value chain. This proves that most of these stereotypes do not withstand the data check.
Trove of Ambiguity
The Uttarakhand UCC claims to bring uniformity across the domain of personal laws and to some extent even fulfils that promise by prohibiting polygamy, nikah halala, iddat, triple talaq, and child marriage. It establishes a standardised minimum age of marriage for all (18 and 21) which was earlier codified only in the Hindu Marriage Act. It proposes equal property rights for sons and daughters across all classes while doing away with the concept of Illegitimate children. While on the face of things, all seems merry and positive, deep down there are a lot of issues where the Act is navigating a minefield, especially with its provision on live-in relationships.
In the first-ever move by the state to legally recognise live-in relationships, the UCC defines it as a relationship in the “nature of marriage” between a man and a woman cohabitating in a shared household and requires compulsory registration through a “statement of live-in relationship”. This has to be done within one month, failing which would amount to a criminal offence punishable with up to three months in jail or a fine not exceeding Rs 10,000. Now this opens a pandora’s box of legal and practical problems. To begin with, the definition states the relationship to be in the “nature of marriage” and adds a provision of submitting a “statement of termination” to end the relationship. This increasingly blurs the lines of differentiation between a live-in arrangement and a marriage, defeating the entire purpose of its existence in the first place.
The age of consent for live-in relationships has been set at 21 for both genders. If the parties are any younger, the registrar has been empowered to inform the guardians of the couple and the police as well. Added to this is the fact that any live-in arrangement can be brought to the notice of the registrar by any third party. This leaves a lot of room for intrusive moral policing and discriminatory harassment of adults in a consensual relationship. The registrar can even refuse to register the relationship based on the results of his inquiry, given that he provides the reason for refusal. However, the procedure of inquiry and the extent to which information has to be published is not clearly stated. What if two people cohabitating together are merely roommates or friends? What question can the registrar concoct to deduce the truth? More importantly, why does one need to let a stranger infringe upon the privacy of their bedroom?
Guardian State
A lot of supporters have hailed these provisions as a move towards the safety and empowerment of women but, is that really the case? Even if we overlook the glaring infringement on the Right to Privacy, the bill does nothing to protect women in a society waiting to jump at any opportunity to defend the morality of the ‘ideal Indian woman’. It puts live-in couples, already looked down upon by society, at risk of harassment and ostracisation. Cases of abuse in the domain of live-in relationships include sex on the false pretext of marriage which, despite its complications, has already been criminalised under the Indian Penal Code. The Kerala High Court in a recent judgement also clarified that women can seek redressal under domestic abuse laws in cases of violence in live-in relationships. If both these issues are already being addressed, what value is the Uttarakhand UCC adding to the issue of women's safety?
It all eventually comes down to the appeasement of a vote bank generation’s sense of morality and the unavoidable nature of the state to acquire more power. This push of social conservatism and virtue signalling by the ruling government is upsetting the debated, yet principled stand of the Uniform Civil Code envisioned by our constitution makers. It is important to note that the concept of marriage or cohabitation was not established by the state, but by society and evolving societal norms. Laws represent societal values and reflect logical reasoning. Hence, the state needs to demonstrate a genuine commitment to understanding the challenges and intricacies of implementing a fair and equitable Uniform Civil Code.
The author is a Junior Editor at Ramjas Political Review.
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