Kiren Rijiju has not poured cold water on the zeal of Uniform Civil Code (UCC) enthusiasts but left them second-guessing the government’s strategy on the matter. In reply to a question by Hibi Eden, the MP from Ernakulam (Kerala), in Lok Sabha recently (Unstarred Question No. 306 dated February 3, 2023) on UCC, the Minister of Law and Justice has put the ball in the court of 22nd Law Commission. Last October, the government had pleaded before the Supreme Court of India to dismiss with costs the Public Interest Litigation (PIL) filed by Ashwini Upadhyay for securing uniform divorce, maintenance and alimony laws.
The government’s affidavit said that the Parliament exercised sovereign power to enact laws, and no outside power or authority could issue directions to enact a particular piece of legislation. This is not exactly an honest assertion. There are several instances where Parliament has passed laws based on Supreme Court judgements. One of its recent examples is the Muslim Women (Protection of Rights on Marriage) Act, 2019 which was enacted on July 31, 2019, admittedly to give effect to the judgement of the Supreme Court in the case of Shayara Bao and Others vs Union of India dated August 22, 2017. The law criminalised triple talaq, prevalent amongst Indian Muslims.
Ashwini Upadhyay’s Twitter handle no longer shows his political affiliation. He, however, is a member of the Bharatiya Janata Party (BJP), which, for long, has espoused the agenda of the UCC. As early as 1967, Bharatiya Jana Sangh (BJS), the predecessor of the BJP, promised a UCC in its election manifesto (Point 26). Though laconically, the promise was repeated in the 1971 election manifesto. The BJP, in its 1989 election manifesto promised to “prepare a draft with a view to evolving consensus for a Uniform Civil Code.” The 1996 manifesto promised UCC to give women property rights; ensure women’s right to adopt; guarantee women equal guardianship rights; remove discriminatory clauses in divorce laws; put an end to polygamy; and make registrations of all marriages mandatory.
The 1998 manifesto promised to “entrust Law Commission to formulate a Uniform Civil Code based on progressive practices from all traditions.” The political compulsions since 1999 prevented the BJP from espousing UCC, banning cow slaughter, and the abolition of Article 370. However, both in 2014 and 2019 election manifestos, with Narendra Modi as the Prime Ministerial candidate, UCC was specifically promised (though without any reference to Law Commission).
Way back on August 20, 1993, the Lok Sabha debated a resolution on UCC moved by Sumitra Mahajan, the then-BJP MP from Indore. The discussion spilt over to December 10, 1993, in the ensuing winter session. The motion, however, was negated in the end. The Lok Sabha also debated a Private Member’s Bill moved by Bhagwan Shankar Rawat, the then-BJP MP from Agra on August 6, 1997, to amend the Constitution to implement UCC.
The Uniform Civil Code thus appears to be the core conviction of the BJP. Therefore, it might appear strange that after coming to power with a full majority, the BJP government should pass the ball to the Law Commission, or plead with the Supreme Court to dismiss, with costs, a PIL filed by one of its party functionaries on that issue.
On December 9, 2022, Dr Kirodi Lal Meena hit the news headlines by introducing the Uniform Civil Code Bill, 2020 – a Private Member’s Bill in Rajya Sabha. It was hailed by UCC enthusiasts (on social media platforms) as a fulfillment of the BJP’s promise. The truth is that the said Private Member’s Bill was an exact copy of the Uniform Civil Code Bill introduced by Chandrakant Bhaurao Khaire on December 28, 2018; Krupal Balaji Tumane on December 3, 2021; and Sushil Kumar Singh on February 4, 2022 – each in Lok Sabha as Private Member’s Bill. Curiously, these draft legislations envisaged the constitution of a National Inspection and Investigation Committee for purpose of preparing UCC and its implementation in the country. This Committee would be chaired by a retired Chief Justice of India. Both the Union Minister of Home Affairs and the Union Minister of Law and Justice would be its ex-officio members. The Committee, according to the text of the Bill Clause 4 (2) (a) to (e) ensure implementation of the Uniform Civil Code in the entire “geographical territory of India.”
This arrangement would have been purely extra-constitutional, a combination of legislative and executive powers. It could not be compared to the National Human Rights Commission, National Commission of Women or National Commission for Protection of Child Rights. It puts into shade the lawmaking prerogative of the Parliament. If the government of the day is sincere about UCC, as promised in the BJP manifestoes of 2014 and 2019, it would bring a government Bill in Parliament on the subject. It could get the issue examined by the Law Commission or Parliamentary Standing Committee on Law and Justice, or any other high-powered committee set up under the chairmanship of a sitting judge, retired judge or bureaucrat as it might deem fit. The onus of drafting the Bill devolves upon the Legislative Department, Ministry of Law and Justice.
The problem appears to be elsewhere. Nobody appears to have applied his mind to the contents of the Uniform Civil Code. Thus, whereas the UCC was promised in elections going back to 1967, nobody ever came out with a draft. The recent Private Member’s Bills did not provide a draft of the UCC but merely passed on the ball to the nebulous National Inspection and Investigation Committee. The minister put the onus onto the Law Commission.
Why should the UCC matter to us? UCC enthusiasts generally cite the prevalence of polygamy and underage marriage amongst Muslims as the reason for bringing this common code. Ganga Mishra in her recent PhD thesis Uniform Civil Code: Issues and Challenges- A Study (Rabindranath Tagore University, Bhopal, 2021) identified the possible areas that UCC would address as –
a) Marriage, divorce and other matrimonial clauses
b) Succession (inheritance)
c) Guardianship
d) Maintenance
e) Adoption
f) Partition
g) Gifts and wills
h) Religious institutions
i) Joint Family system and matters of charitable trust etc
The then Chief Justice of India, YV Chandrachud (father of present CJI Dr DY Chandrachud), in the case of Mohammed Ahmed Khan v. Shah Bano Begum observed, “A Common civil code will help the cause of national integration by removing disparate loyalties to the law which have conflicting ideologies.”
Article 44 of the Constitution of India says that the State shall endeavour to secure for its citizens a UCC throughout the territory of India. It, however, comes under Part IV of the Constitution i.e. Directive Principles State of Policy that, unlike fundamental rights, are not enforceable in any court of law. The intricate nature of the subject matter makes UCC an easy promise, but a difficult venture. It involves interfering with the personal laws of different religious groups.
Will the BJP promise the same in its election manifesto in 2024, again? Let there be an honest assessment of the potential and feasibility of UCC in India rather than playing the game of smoke and mirrors with the subject.
The writer is author of the book ‘The Microphone Men: How Orators Created a Modern India’ (2019) and an independent researcher based in New Delhi. The views expressed in this article are those of the author and do not represent the stand of this publication.
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