Debating a legal reform is next to impossible if you do not know the actual contents of the law that is to be introduced.
This, unfortunately, has been the hallmark of all discussions surrounding the Uniform Civil Code, which seeks to replace all the scripture-based personal laws of India's major religions with a legislation that is binding on all citizens.
The Uniform Civil Code, which was first mooted as far back in 1947, is back in the news because the Supreme Court is petitions by several Muslim women on the issue of triple talaq – a practice under the Muslim personal law, or sharia under which a couple are considered separated if a husband utters the word talaq, or divorce, to his wife three times. On October 7, an affidavit filed by the Centre before the apex court argued against the practice. The Law Commission then circulated a questionnaire to seek public opinion on a Uniform Civil Code, which the All India Muslim Personal Law Board on October 13 announced it would boycott saying that the government was trying to impose a “single ideology” on everyone in the country.
What will it really be?
In the nearly 70 years since the idea of such a code was first introduced before the Constituent Assembly, there has not been one cogent draft circulated on what the Uniform Civil Code actually entails.
This is not just a minor detail or a technicality. The Uniform Civil Code could be one that removes all traces of religion and custom in personal laws and holds them to a neutral standard (the maximal proposal). On the other hand, it could simply redefine the word “Hindu” in the Hindu Code to include all other major religions, thereby simply extending Hindu law to all communities and making it the uniform norm (the minimal proposal).
Note that both proposals meet the key requirement of the legislation of being all-encompassing, that is, they deal with all aspects of personal law. However, there are many variations between the two and proponents of a Uniform Civil Code do not seem to be aware of the possibilities and implications of choosing either or something in between.
Instead the argument goes that uniformity, irrespective of actual content of the law, is in itself good. Two grounds are used to make this claim. The first is that the Constitution requires it and the second is that religion has no place in personal laws. At present, matters pertaining to marriage, divorce, adoption – laws pertaining to family – come under personal laws.
Article 44 of the Constitution exhorts the government to implement a Uniform Civil Code, but does not give any details on what such a legislation should contain or how it will be shaped. In fact, other articles of the Constitution stand in the way of such an all-encompassing personal law.
Obstacles within the Constitution
Imposing the Uniform Civil Code would require the amendment of not just Article 370 that grants special status to Jammu and Kashmir, Article 371A (for Nagaland) and Article 371G (for Mizoram), but also a renegotiation of the agreements and treaties which saw the insertion of these articles. Likewise, personal law would have to be taken out of the concurrent list (matters over which both state and central governments can legislate) and give exclusive power given to Parliament to make laws so that states cannot make any variations to them.
So is bringing about uniformity in personal laws worth the massive effort it takes to amend the Constitution as also bring all bodies on board?
There is no evidence to suggest that it is. There is nothing to indicate that such a law is feasible or desirable in India. The Hindu Code, for instance, which codifies Hindu personal law, does not make it uniform for all Hindus. Crucial aspects such as the validity of marriage, decisions on adoption, for instance, are left to custom. Likewise, regional variations in custom, such as succession rights in Tamil Nadu and Kerala, are not disturbed. The Hindus of Goa are exempt from the Hindu code. The much touted Civil Procedure Code of Goa is also not an example of uniformity as it has different provisions for followers of different religions.
Even Islamic law is not a monolith and followers of different schools and sub-sects have their own individual customs and practices which are different from each other. There is no precedent in India to show that the abolition of heterodox, diverse customs and practices related to personal law will have necessarily positive results.
But this is not to say that personal laws do not require reform.
Personal laws in India are to various degrees regressive and obsolescent. For instance, most of them are far from being gender-neutral or just. They also pose impediments on other fronts relating to adoption and guardianship.
But the utterly unjustified requirement that all personal laws should conform to one unknown, abstract standard of uniformity has come in the way of sensible reform within these laws.
This has allowed the conservative elements in a community to scupper efforts for reform by painting them as majoritarian, while those who want change are needlessly sidetracked into defending or attacking the Uniform Civil Code.
This is not even a debate that is being conducted in good faith. The Uniform Civil Code is a dog-whistle that the BJP uses to consolidate its Hindu base and alienate and demonise Muslims. If the BJP were acting in good faith about a genuinely gender-equal and easy-to-use uniform civil code, we would have seen a proposal from the government arguing why coparcenery rights of all Hindus should be abolished and therefore, the Hindu Undivided Family provisions in the Income Tax Act, 1961 should stand repealed.
The Uniform Civil Code is never pitched as a measure to reform personal law for Hindus (which is far from uniform, fair or just) but only raised in the context of Muslim law.
This is what is happening right now as well. There are constitutional, legal, ethical and moral arguments that can be made against the enforcement of triple talaq by courts. But by linking this issue to the unform civil code shows that any reform is the beginning of an effort to ultimately impose a uniform law on Muslims whether or not they want.
The government has only been too happy to make the discussion all about the Uniform Civil Code because it serves the dog-whistle purpose as well. In this process, those who continue suffer are the ones who face the brunt of both patriarchy and majoritarianism: Muslim women.
Alok Prasanna Kumar is an advocate and Visiting Fellow, Vidhi Centre for Legal Policy.