The Uncivil Code

The Bill passed by the legislative assembly in Uttarakhand has drawn criticism for its failure to acknowledge the unique religious identity and practices of personal laws. Certain clauses in the Bill are alarming as they contravene this core principle

By Priyanshi Jain and Shivam Singh

“Legal pluralism is the fact. Legal centralism is a myth, an ideal, a claim, an illusion.”

—John Griffiths, What is Legal Pluralism (1986)

The recent Uniform Civil Code (UCC) Bill in Uttarakhand has drawn criticism for its failure to acknowledge the unique religious identity and practices of personal laws. By imposing uniform standards on divorce and inheritance, the Bill disregards the nuanced principles outlined in personal law jurisprudence. Furthermore, as a fundamental cornerstone of India’s secular fabric, it calls into doubt the safeguarding of constitutional rights and religious freedom. In addition to being drafted with majoritarian morality in mind, it allows for exceptions for customary laws. Family Law, for instance, operates on the assumption that marriages and intimate relationships are consensual and safeguard the fundamental rights and dignity of the individuals involved, recognizing their agency and autonomy in decision-making. Nonetheless, certain clauses in the Bill are alarming as they contravene this core principle.

Due to the complicated interplay between the constitutional protection of fundamental rights and societal pluralism, the concept of a UCC within the Indian legal system has proven to be challenging. Although the UCC’s fundamental goals are to create legal consistency and reconcile disparate personal laws, concerns have been raised about its doctrinal compatibility with religious practices, particularly those that form the basis of disparate personal laws, since it was implemented in Uttarakhand. The most important piece of law in our nation, the Constitution, is purposefully and sensibly non-uniform to preserve national unity. Different policies have been applied to different national areas. Distinct communities have been granted varying entitlements. Many allowances have been made for many religions. Article 25 of the Constitution itself guarantees protection for different religious practices in different religions. Hindus rely mostly on the codified Hindu law and Hindu personal laws, while Muslims primarily rely on the Holy Quran, Sunnah, and Fiqh (Islamic Law) as their fundamental religious sources. For Christians, most laws are codified and uniform. These texts are considered matters of Articles 25 and 26 and require adherents to follow strictly to the prescribed injunctions. 

In the Constituent Assembly, Pocker Sahib Bahadur stated: “There are countless numbers of communities that have been adhering to different customs for hundreds or thousands of years.” You want to undo all of that with a single pen stroke and make them all the same? What is the goal that is achieved? What other goal does this uniformity serve than undermining people’s consciences and giving them the impression that their religious rights and traditions are being violated? More importantly, it goes against the character and spirit of the Constitution.

Pluralism of laws is not anarchy of laws. It is an acknowledgment of the variety of Indian culture and the reality that local communities have established the laws that guide their day-to-day operations and give their constituents a purpose. It is a realisation that all areas of social life need not be regulated by a standard set of rules. By embroiling itself in substantive issues of religious doctrine and stipulating what religions ought to look like, the state has undermined normative pluralism.

As India is a vibrant democracy with a diverse population, any UCC initiative must reflect the values and preferences of its citizens. By engaging in meaningful dialogue with stakeholders and soliciting inputs from various segments of the society, policymakers can enhance the democratic legitimacy of the UCC and ensure that it resonates with the broader aspirations of the Indian populace. 

KM Munshi asserted at the meeting of the Draft Committee of the Constituent Assembly that he had raised the case that the minority may suffer or become oppressed if the UCC were to pass. Is it despotic? Brevity constraints make it impossible to analyse the lengthy code, which consists of 392 sections, in-depth. 

The present UCC has been passed by the Uttarakhand Legislative Assembly, consisting of 70 members out of which there are only 5% Muslim members, 10.5% women members, and almost all of the rest are Hindus. Democratic legitimacy requires that the decisions taken by the democratically-elected majoritarian government are in consonance with the culture and customs of not only the majority, but the minority as well. The homogeneous legislative assembly passed a law to govern the heterogeneous population through UCC. This raises concerns about the legitimacy of the legislative process and the extent to which the UCC reflects the needs and interests of all communities, particularly those with minority status. In the absence of sufficient representation and significant involvement from all parties involved, there exists a possibility that the UCC has failed to sufficiently attend to the requirements and issues of underprivileged groups, or could unintentionally sustain disparities. 

By mandating uniform norms about divorce and succession, the legislation appears to gloss over the nuanced doctrinal tenets encapsulated in personal laws jurisprudence. The Uttarakhand UCC appears to have drawn heavily from existing laws regarding marriage and succession, albeit with notable progressive changes. For example, it exclusively handles marriage dissolution without imposing a waiting period for remarriage after divorce. These progressive measures enhance individual rights. Notably, the UCC retains the allowance for customs and practices to override restrictions on marrying within prohibited degrees of relationship, with the caveat that such customs must align with public policy and morality. The registration of marriages, divorces and live-in relationships could lead to increased vulnerability, moral policing, and interference from families and communities. The UCC only recognises marriages and live-in relationships between a man and a woman, excluding LGBTQ+ individuals from its protections. This violates their constitutional rights and ignores recent judicial developments.

In the present UCC Bill passed in Uttarakhand, the identifiable and significant features of Islamic personal law have been completely changed. In such a case, Indian Muslims, who diligently adhere to the Islamic prohibitions on divorce, will undoubtedly be left in the lurch. The Bill focuses on protecting any person from their partners, but ignores the violence and control often imposed by natal families. It prompts worries about the state’s overbearing involvement in overseeing people’s lives, particularly impacting women, minorities, and LGBTQ+ individuals.

In addition to acknowledging the flexibility of religious systems, the state should defend and identify different interpretations of religion that defy prevailing cultural norms. In the present UCC, pre-nuptial agreements have been approved and must be taken into consideration by a court when determining the division of marital property. Nevertheless, the partition of the matrimonial estate is still subject to judicial discretion based on the separation of matrimonial property to the degree it is not jointly held.

If the purpose of UCC is to uniform the law and end the prevailing inequality and discrimination within personal laws then why are matters of guardianship still left out of the ambit of UCC? Which is to say that the same will be governed by personal laws. Gender equality gaps exists not only in codified personal laws, but also in “so-called uniform matrimonial laws”, which are often “portrayed as successful models of uniform matrimonial laws”, such as the family laws in Goa and the Special Marriage Act, 1954. In the present UCC, certain standards have been set through the morality of the legislature of Uttarakhand. Due to the codification and unification of these personal laws in UCC, this matrimonial personal law which predates the Constitution is subject to the constitutional rights, which used to be outside it. The legislature should consider all relevant religious scriptures when reaching decisions about this matter, rather than focusing primarily on ambiguous interpretations of “constitutional morality”. Any policy decision to make uniformity in “personal matters” shall be a misadventure in the existing social order. Now these religious nature questions related to these personal laws will be subjected to judicial interpretation. Earlier, religious questions related to personal laws were used to be out of judicial interpretation. The Uttarakhand legislature through UCC has simply expressed its morality and is imposing the same.  The imposition of morality without taking into account the diverse identity of the personal laws is a direct attack on religious sentiments.

When the civil law is not the same in the whole country, then why does the state insist on applying a personal law throughout the country? This though seems to be progressive, and even certain provisions of the current UCC are, but has completely changed the finest features of personal laws, which used to make it stand out from other codified laws. Since personal laws are closely linked to every religion, they are a matter of conscience, which is protected by Articles 25, 26 and 29 of the Constitution. 

The current social structure, when juxtaposed with the principles of transformative constitutionalism, does not seem conducive to the adoption of a UCC at this juncture. The UCC proposed in Uttarakhand, while aiming for legal uniformity, has faced criticism for its failure to accommodate the unique religious identities and practices enshrined in personal laws. It ignores the subtleties present in personal law case law and poses questions about the maintenance of constitutional rights and religious freedom, which are crucial components of India’s secular structure. Particularly in a nation with as many unique cultures as India, the nuances of religious systems and the range of interpretations of religious scriptures must be honoured. Furthermore, it seems that the present legislative initiatives value consistency over justice, ignoring the importance of equality as a consequence of achieving justice. 

Though the right time will never be achieved with such steadiness, changing the lives of people governed by personal laws with just one stroke of a pen will affect them to a large extent. There is a need for great ponderance with a large or maximum number of people involved in the discussion and with slow and gradual implementation of certain aspects of personal laws through the UCC.

The idea of UCC should be carefully considered given its possible effects on individual rights and religious pluralism. Uniformity should only result from guaranteeing equality; thus, the quest for uniformity shouldn’t eclipse the fundamental elements of justice. It is critical to take into account the consequences of religious pluralism and constitutional rights as discussions about the UCC continue. 

Any attempt to codify personal laws through legislation must protect the rights of the marginalised groups and take into account how religious systems are evolving. Policymakers in India can negotiate the intricacies of legal pluralism while respecting the values of secularism and religious freedom by having meaningful conversations and looking for inclusive solutions. 

—The writers are second year law students at Dharmashastra National Law University, Jabalpur

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