Uniform Civil Code debate gains momentum

While the BJP is weighing political stakes, the issue has seen a renewed push in the Supreme Court.

April 03, 2022 08:12 pm | Updated April 04, 2022 08:46 am IST - New Delhi

A rally to protest against Uniform Civil Code in Kerala. File

A rally to protest against Uniform Civil Code in Kerala. File | Photo Credit: MUSTAFAH KK

Will the Uniform Civil Code (UCC) be the next big political push for the ruling party in the run-up to the 2024 Lok Sabha polls?

The UCC calls for formulation of one law to be made applicable to all religious communities in matters such as marriage, divorce, inheritance and adoption.

Days after taking over as the Uttarakhand Chief Minister for a second time, Pushkar Singh Dhami kept his pre-poll promise and announced an expert panel that would examine the possibility of applying the UCC in the State.

Even before the Hijab row further fuelled the debate, BJP member in the Rajya Sabha, Rakesh Sinha, had moved a private member’s Bill for a law on the UCC.

A similar petition by BJP leader Ashwini Upadhyaya is before the Delhi High Court as well.

The government, though, has maintained an ambivalent position.

During the winter session of Parliament last December, Law Minister Kiren Rijiju, in response to a written question, said “the matter is sub-judice”.

However, answering a query by the BJP’s Nishikant Dubey on the same issue around the same time, the Law Minister said the matter required in-depth study of the personal laws governing different communities.

“The matter may be taken up by the 22nd Law Commission of India,” Mr. Rijiju said in his letter to Mr. Dubey.

But the irony is that even after two years since the Union Cabinet approved the constitution of the 22nd Law Commission in February 2020, its chairperson and members are yet to be appointed.

The report of the Parliamentary Committee on Law and Justice, headed by BJP leader Sushil Kumar Modi and tabled in both Houses of Parliament last month, pointed out the “snail’s pace in appointing the members of the Law Commission”.

Tribal communities

One of the reasons behind the government’s ambivalence, argued some leaders, is the potential fallout of a such move on tribal communities, a political constituency that the BJP and its ideological mentor, Rashtriya Swayamsevak Sangh (RSS), are trying hard to win over.

“In our State, tribals have their own personal laws and we wouldn’t like our government to disturb that equation,” says a BJP leader from Assam with strong links with the RSS.

But the issue has seen a renewed push in the Supreme Court as well, especially after the top court indicated that the government should explore the UCC as a means to secure gender justice, equality and dignity of women.

The court’s view is based on several petitions claiming that personal laws governing the followers of certain faiths discriminate against women.

One of these petitions, filed in January this year, by the Chancellor of Maulana Azad National Urdu University, Firoz Ahmed Bakht, asked the Supreme Court to direct the government to constitute a judicial commission or a high-level expert committee to prepare a draft UCC in tune with international conventions which protect the rights of women.

Mr. Bakht, who is also the grandnephew of independent India’s first Education Minister Maulana Abul Kalam Azad, says it is time to shed personal laws based on “patriarchal stereotypes”.

‘Promotes nationalistic fervour’

He argues that the UCC would not only protect the vulnerable sections, including women and religious minorities, but “promote nationalistic fervour through unity” as well as simplify the complex personal laws.

His petition resonates with the Jose Paulo Coutinho judgment of the Supreme Court in 2019, which wondered why the nation had still not endeavoured to secure a common civil code for its citizens.

A Bench of Justices (retired) Deepak Gupta and Justice Aniruddha Bose had said that though the “Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country”.

The judgment had said that “despite exhortations of this court in the case of Shah Bano in 1985, the government has done nothing to bring the Uniform Civil Code. The Shah Bano case, which upheld a Muslim women’s right to maintenance was considered a step in the direction of implementation of the UCC. However, the government, in 1986, enacted the Muslim Women (Protection of Rights on Divorce) Act which nullified the Shah Bano judgment. The Act allowed maintenance to women only for 90 days after the divorce”.

The Supreme Court has even hailed Goa as a “shining example” where “the uniform civil code is applicable to all, regardless of religion except while protecting certain limited rights”.

The Supreme Court’s exhortation came despite the Law Commission of India, in a consultation paper released in 2018, finding the UCC “neither necessary nor desirable at this stage” in the country. 

Article 44 of the Constitution does not mandate but only asks the State to make an endeavour to secure the UCC for all citizens. In his Constituent Assembly speech, Dr. B.R. Ambedkar had explained that the UCC was incorporated into the Constitution as a “desirable” move, but for the moment “voluntary”. 

Cautionary note

The current push within the Supreme Court for the UCC steps away from the cautionary note seen in earlier judgments while dealing with the question whether ‘secularism’ desired to be attained through a common civil code would come at the cost of plurality.

While the top court’s judgments in Sarla Mudgal and Shah Bano Begum cases lamented the official inactivity over a common civil code which would “help the cause of national integration”, several verdicts, like in S.R. Bommai, have warned against “mixing politics with religion”. The court had worried whether a secular state should bring a code which can be perceived to be a threat to personal laws based on the religious beliefs of individual religions.

The court had also questioned the wisdom of enacting a uniform law in “one go” in a pluralistic society.

“A uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation,” the apex court had warned in its Pannalal Bansilal Pitti judgment.

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