Why legal experts think BJP will never actually implement a uniform civil code

On October 29, about a month before the Assembly elections in Gujarat, the Bharatiya Janata Party-led state government said it would form a panel to implement a uniform civil code in the state. The BJP formed a similar panel in Uttarakhand in May and has promised to implement a uniform civil code if it is elected again in Himachal Pradesh.

A uniform civil code entails a common law that will govern marriages, divorces, adoption and succession for all Indians. At present, these practices are regulated by the personal law of the individual’s religion.

Opposition leaders have claimed that such a move would be illegal, arguing that only the Union government can implement a uniform civil code. However, constitutional experts argue while it might not be unlawful to bring a uniform civil code at the state level, there are practical hurdles in enacting such a law.

Even at the national level, experts argue, it is unclear what a uniform civil code will look like. Further, they argue that it may entail taking away benefits currently enjoyed only by Hindus and, therefore, unlikely to be enacted by the BJP.

Legally permissible?

Opposition leaders have claimed that the BJP’s attempt to implement a uniform civil code at the state level is illegal. Congress leader and senior advocate P Chidambaram said that the uniform civil code that the BJP imagines can only be brought by the Centre. Further, Congress Rajya Sabha MP Shaktisinh Gohil argued that a uniform civil code would require a constitutional amendment, which only the Centre can bring.

Those who believe that this law can only be brought by the Centre often cite Article 44 of the Constitution, which envisages a uniform civil code for “all citizens throughout India”.

However, several experts disagree with this line of reasoning. Article 44 comes under Part IV of the Constitution, which lays down directive principles that are not enforceable in court and are only meant to act as a guide when governments make laws, the say.

Instead, the power to make law comes from Article 245 of the Constitution with 246 and the Lists in the Seventh Schedule, explained Alok Prasanna Kumar, a senior research fellow at legal think tank Vidhi Centre for Legal Policy. “It does not come from Part IV,” he said.

Kumar elaborated, “States are empowered under Article 246 read with List III of Seventh Schedule to make laws relating to ‘personal laws’.” Article 246 talks about the distribution of legislative powers between the Centre and states. Alongside Union and state lists, there is a concurrent list, List III, where both the Centre and states can legislate.

Marriages, divorces, adoptions, successions, joint families and partitions are listed in the concurrent list and so come under the domain of both the Centre and states.

According to Article 254, in case a state makes a law for a concurrent list subject that is contrary to an existing central law, then the central law will prevail. However, if the state receives assent from the president with respect to its contradictory state law, then that state law will prevail in that particular state.

At present, there are few central laws in this domain that are specific to religions, such as Hindu Marriage Act, 1955 and Indian Christian Marriage Act, 1872. “Such laws [a state’s uniform civil code] will definitely be contrary to existing Union laws on the same subject (such as the Hindu Marriage Act, Shariat Act etc.) and therefore will need to be approved by the president,” said Kumar.

In July, Union Law Minister Kiren Rijiju also told the Parliament that state governments also have the power to legislate a uniform civil code.

Functionally problematic

As a consequence, experts believe that there is no legal hurdle to moving such a code. “The president will immediately give assent if a BJP state passes this law [a uniform civil code],” said PDT Achary, former secretary-general of the Lok Sabha. “If a non-BJP state passes a law, the president may have a different view.”

Senior advocate and constitutional law expert Gopal Sankaranarayanan added, “Technically, it [a state-specific uniform civil code] may be possible if you get presidential assent.”

However, while state-specific uniform civil codes might be possible technically, they would be too unwieldy to implement in practice.

“You are going to create marriages and divorces, which are then of a federal nature,” Sankaranarayanan said. “[In the United States,] people choose particular states [to get married in] either for the kind of condition they have for alimony, visitation etc., which varies from state to state. You are going to bring that kind of system into India.”

Elaborating on the practical difficulties, Sankaranarayanan suggested the hypothetical example of a couple who had got married in Karnataka under the state’s uniform civil code (which differs from the national law) then decide to get divorced after they move to Delhi. “And I move my divorce petition in Delhi, will I be governed by Karnataka law or the place [Delhi] where we have lived as a married couple?” he asked.

Sankaranarayanan continued, “You can imagine the kind of mess it will create.”

Therefore, to imagine a state-wise uniform civil code, he said, “is more like an academic exercise”. If a uniform civil code has to come, he believed, it will have to be nationwide.

Too complex?

While a national uniform civil code would avoid these problems of jurisdiction, experts believe that there are various problems with even this. “It is practically not really possible,” said Sarasu Esther Thomas, professor of law at National Law School of India University, Bangalore and an expert in family law. “We just assume that uniform civil code means that you are bringing together Hindu law, Muslim law, and so on. But law is much more diverse than that.”

Said Kumar, “What is a marriage, what is a divorce, what is inheritable property….are all so different in each religion that a mandatory uniform civil code will be unacceptable to everyone equally.” For instance, he pointed out that Muslims consider marriage as a contract, which can be terminated under certain rules like all contracts, whereas Hindus and Christians consider it a sacrament or sacred institution which makes it difficult to dissolve.

Further, Thomas said that several provisions even in Hindu law have not been codified. The Hindu Code Bill was a set of laws passed in the 1950s that ended polygamy for Hindus and regulated aspects such as inheritance, adoption, marriage and divorce. This law is often used as a justification by the Hindu Right to bring a uniform civil code across all religions.

“There is no uniform Hindu code to begin with,” she said, pointing out that in several areas such as who can marry whom, Hindu customs operate.

“So even when you see Hindu Code Bill, which tried to bring about a uniform Hindu code, it was impossible because it was so diverse,” Thomas added.

Therefore, it is difficult for one uniform civil code to harmonise customs across all religions, experts say. Kumar pointed out that the Uttarakhand Uniform Civil Code committee has got around four lakh suggestions and is having difficulty in analysing them.

Government’s hesitation

Because of this, experts believe that while the BJP might have made it a political debate, it is unlikely that a government led by the party can actually implement a uniform civil code “Suppose you bring a uniform civil code, what will you do for Hindu Undivided Family?” asked Vijay Kishor Tiwari, an assistant professor of law at the West Bengal National University of Juridical Sciences, Kolkata. “Because in Indian taxation, that becomes a very beneficial category for Hindus. So they are not going to leave it.” A Hindu Undivided Family is a family-based entity that gets tax exemptions.

Further, Thomas pointed out, “HUF [Hindu Undivided Family] law is completely uncodified.”

As a consequence, Tiwari believed that the BJP will not bring a uniform civil code. “That is my reading of their strategy,” Tiwari said. “The main complaint of the BJP was that polygamy and triple talaq was allowed for Muslims, which was a privilege not given to Hindu men.”

The Union government criminalised triple talaq in 2019. “I think the remaining privilege of polygamy will also be gone in the near future,” he said.

Beneficial for whom?

Experts have also questioned the rationale for a uniform civil code is required. In its 2019 Lok Sabha manifesto, the BJP said that there cannot be “gender equality” till a uniform civil code is implemented. However, experts believe that instead of a uniform civil code, there are other ways to make laws equitable.

“Many feminists have the view that as long as we are moving towards gender equity, we do not need uniformity,” said Thomas. “I think the way forward is to have uniform laws like the Domestic Violence Act, Juvenile Justice Act, The Maintenance and Welfare of Parents and Senior Citizens Act, which takes care of people regardless of their personal laws.”

A similar stance was taken by the Law Commission of India in a consultation paper on the uniform civil code in 2016. It said that the governments must deal with “laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable”.

Further experts have also argued that the Civil Code in Goa, which is often given as an example of a model uniform civil code, has different provisions for different religions and may not be equitable for women.

“It is not as if because we have this law in Goa, everything is hunky-dory,” said Albertina Almeida, advocate and human rights activist and an expert on matrimonial laws in Goa. “Based on my own experience, I feel this idea of uniform civil code vs personal laws is a false dichotomy.”