Uniform Civil Code (UCC): The Devil is in the details (most importantly, Timing!!!)-Part 1

1. The Constituent Assembly of India, comprising of people of great eminence drawn from all walks of life, and representing linguistic and religious minorities thought it fit to include Article 44 in the Constitution of India as one of the Directive Principles of the State Policy. Everyone in India nowadays knows that DPSPs, unlike fundamental rights are not enforceable in a court of law. The makers of the Constitution felt that the objectives of Art. 44 (though not possible under the then prevailing highly polarised and charged situation) should at some point of time work to accomplish these objectives. Under the constitutional law, the DPSPs are not legally enforceable. Yet, when it comes to pronouncing on the Constitutionality of the Legislations passed by the Indian Parliament and various State Legislatures, Constitutional courts in India will pronounce on the challenges to Constitutional validity in the light of desirable guidelines provided in part IV of the Indian Constitution. 73 years have passed since the adoption of the Indian Constitution. The UCC still remains a mirage. Thus on principle, I am all for UCC.

2. Recently, the 21st Law Commission headed by J Chauhan of India, (appointed by the previous BJP government) after elaborate consideration on the desirability of having a UCC, concluded that UCC is neither desirable nor feasible. Actually, this conclusion (in my opinion) is a matter of decision and implementation by the Executive, provided, they are approved by the Parliament. A retired Judge should have answered the question as to whether it is constitutional or not. If yes, what are the desirable safeguards to prevent majority abuse of power. If the commission finds that it is constitutional and yet society is not yet willing to accept it because (Rightly or wrongly) enactment of UCC is perceived as Majority oppression of Minority; then, the Learned Members of the Law Commission should give a list of recommendations for preparing the society so that the laudable objective proclaimed in Art 44 of the Constitution is realized. Very often it is said that while deciding cases, the Judges do not exactly determine the issues in controversy. They simply add to the confusion. Hence, if the Executive and the Parliament of UOI totally disregard the recommendations of the 21st Law Commission, constitutionally and legally, they will be well within their rights. After all, you cannot substitute the legal and Constitutional rights of the Parliament to have the last word on the issue, notwithstanding the wisdom of Law Commission members (however impeccable).

3. India is and always been a secular, democratic republic. I am very happy and relieved that we are not a religious state like Pakistan and Iran. We are also not totalitarian states like China, North Korea, and Russia. We believe that the diversity in India is our real strength and we try to achieve unity in diversity. Hence, since the UCC is ostensibly for the purpose of realizing the laudable objective of realization of Art. 44, an enlightened Indian citizen should not have any serious objection to the pursuit. However, there are a few caveats.

4. The first of the caveats, as of now, is that there are no details about the contours and structure of the proposed UCC. As already explained, all Indians and those living within the territory of India are governed by the same system of Law when it comes to the temporal and political rights of the people. For example, all Indians are bound by IPC, CrPC, CPC, Contracts Act, Evidence Act, Representatives of Peoples Act, etc. There are differences only in respect of matters relating to

A. Marriage, Divorce and Alimony.

B. Succession (intestate and by a will).

C. Religious and Social Practices.

D. Asset Management of the different religious bodies, such as Waqfs, Mutts, Churches, Synagogues and Temples.

E. Personal relations such as same-sex relationships.

F. Rights of Transgenders.

G. Rights of Women.

H. Rights of Children.

I. Impact of new healthcare technologies on Traditional Family institutions (assisted reproductive technologies such as surrogate parenthood, conception due to human egg/sperm donors etc.)

But, unfortunately, the white paper of the present BJP government does not indicate their position on each of the issues.

5. Actually, today, the BJP government claims justifiable credit for the effective implementation of the GST Tax regime. Aadhaar-based e-governance, has enabled, the beneficiaries to receive promised government subsidies to their bank account without the beneficiaries having to go to government offices (which in the past facilitated corruption of the highest order at the lower bureaucracy). In fact, the level of bureaucratic corruption in our country is as bad as legislative corruption. I am not consciously addressing the issue of Judicial Corruption (Discretion is a better part of valour considering that even today I remain a Justice worker). My opinions on Judicial corruption should not prevent my clients from getting Justice in Judicial forums.

6. Now the BJP government has owned up to both the GST and Aadhaar as their babies and used the same to their political advantage. One should appreciate BJP for that because they have not thrown the baby out with the bathwater! In the past, political parties that have a pan-Indian yet marginal presence, such as Communists have always wanted a UCC. States such as Tamil Nadu, Kerala and West Bengal have been at the forefront to facilitate Women's Empowerment by making the girl child also a co-parcener to the Hindu Joint Family ancestral properties. Relatively, the legal position of women in these states is better than in the rest of India. When Jawaharlal Nehru, at the prodding of Dr Ambedkar codified the traditional Hindu laws on marriage, succession and divorce, a group of people in Congress along with Right-wing Hindu Political parties took the view that codification of Hindu Personal Laws is not necessary. They contended that when Christians and Muslims will be governed by their own system of Personal Laws, then there is no need to codify Hindu Personal laws-which at that point in time had different legal regimes such as Dayabhaga, Mithakshara, laws applicable to tribal societies and untouchables etc,. Even after codification, the Hindu Personal Laws accept the enforceability of customs peculiar to each of the caste groups, even if they are in apparent conflict with codified Hindu laws. Actually, the conclusions of the 21st Law Commission are not much different from the prevailing Hindu opinions before 1956. History always repeats itself.

7. The present BJP government, which has ruled India for about 9 years is going to face an election either by the end of 2023 or prior to the first quarter of 2024. BJP has been frank about their Hindutva ideology. They declared their commitment to the construction of Ram Mandir and the abolition of Article 370 of the Constitution before each of the 2 elections they faced successfully in the past. The Ram Mandir will be reopened after the Supreme Court upheld its construction notwithstanding the illegal demolition of Babri Masjid. Similarly, the repeal of Art. 370 was again part of the election manifesto of the BJP. After all, all the political parties including Congress and left parties at some point in time or other had conceded that Art 370 is only a temporary provision in the Indian Constitution and had declared that these provisions should go sooner or later. The election manifesto of these parties for the proposed 2024 election is unlikely to promise the Indian Population, the restoration of the repealed Art 370. If they make this promise, such promise will not put them back in power, even in J&K. It will definitely ensure the defeat of these Political parties in the rest of India if they dare to restore the original Art 370.

8. Shobana Nair, belonging to The Hindu reports on 4th July 2023 (page 8, Bangalore edition) that the Union Law Ministry has not yet circulated the draft of the proposed law as they are awaiting the recommendation of the 22nd Law Commission report before taking any further steps in the matter. Some of the members of the Parliamentary standing committee on UCC have questioned the timing of fresh consultations on UCC. I have been receiving several WhatsApp messages asking me to either support or oppose the proposed UCC, but, I feel since I am totally unaware of the provisions of the proposed UCC, I cannot support or oppose it as I do not understand its structure and contents. Some opportunistic political parties such as Trinamool and National Congress Party chose to abstain from expressing any opinion. They are not sure as to which way the wind is blowing. They would prefer to be like a cat on the wall so that they can jump either side of the wall based on their perceptions of what would be politically advantageous to them. Hence, I am of the view that the so-called Opposition to the UCC even by major opposition parties is at best lukewarm and half-hearted. Both these parties have traditionally harvested the majority of the Muslim minority votes. But if they openly oppose the enactment of UCC, they run the risk of losing the Hindu and Christian votes that are very crucial for their success in electoral politics.

9. The next unknown feature of the proposed UCC is whether the religious minorities in India such as Muslims, Christians, Jews and Parsi have been consulted on the proposed contents of UCC. Actually, the present definition of Hindus encompasses other religious denominations such as Sikhs, Buddhists and Jains. For the areas identified as Scheduled areas under the constitution, the proposed UCC may not apply. Hence, it is very important to consult not only with the Muslim, Christian, Parsi and Jewish minorities but also with Hindu minorities such as Buddhists, Jains, and Sikhs. It is the British who for the purpose of their convenience categorised the Sikhs, Jains, and Buddhists as part of the Hindu religion though a serious practitioner of these faiths will not identify themselves as Hindus; though they may not have serious objections to being governed under the provisions of the 1956 Hindu codes. If there is going to be a UCC, there is no further need to subsume or encompass Sikhs, Jains, and Buddhists as part of Hinduism. Furthermore, many of the Scheduled Castes, and the rationalists in Tamil Nadu who may not have serious objections to being governed by the UCC, may not want to come under the overall definition of Hindus. In USA and Europe about one third of the population do not believe that they are part of religious order and are indifferent to existence of God. In India also the number is increasing. You have to recognise secular, rationalist and egalitarian outlook can be found in ancient Indian Upanishads which unfortunately did not receive any legal enforceability. Mercifully, the Indian Constitution has given all of us these rights. About the irritants and ticklish issues in having a UCC. We will consider them in subsequent blogs.