The 22nd Law Commission of India sought the opinions of the public and of “recognised religious organisations” on a uniform civil code through a public notice dated June 14, pursuant to a previous notice of 2016, which had initiated a similar process of consultation.
That earlier process had resulted in a 2018 document titled Consultation Paper on Reform of Family Law, which concluded that a UCC was not just unnecessary but was, in fact, destructive of the pluralistic fabric of Indian society. After a cogent review of the issue of rights within ‘communities’, especially tribal groups in areas protected by the Sixth Schedule of the Constitution, the paper further concluded that “a ‘united’ nation need not... have ‘uniformity’” and what was important was to make “diversity reconcile with certain universal and indisputable arguments on human rights.” This could be done not by imposing a UCC against the principles of pluralism, secularism and multiculturalism but by reform of personal codes by legislative amendment to ensure the protection of fundamental rights. A sapient distinction was made between equity and equality.
Nevertheless, a fresh round of consultations has been initiated against the backdrop of a few states under Bharatiya Janata Party governments moving to implement some versions of a UCC. These are: Assam, Gujarat, Haryana, Madhya Pradesh, Maharashtra, Uttarakhand and Uttar Pradesh. Karnataka, too, was moving in that direction, but the BJP’s debacle in the assembly elections in May scuppered that possibility. Uttarakhand has progressed the furthest in this direction by appointing a committee to draft a code.
The 22nd Law Commission’s decision to brush aside the cogent reasoning of its predecessor invites a reappraisal of the issue. The first point that needs making, before we get to various empirical, nitty-gritty issues, is that the sangh parivar takes pains to reduce the UCC debate to a few bullet points related to what can be called Muslim ‘privileges’: polygyny and instant divorce. The latter issue has now been dealt with; thus, much hot air is blown out on the issue of male polygamy.
There is no doubt that the issue of women’s rights must be brought to bear on discussions of polygyny, which, truth to tell, should be banned. So must questions of equity be brought to bear on all questions of property, inheritance, marital and conjugal rights, divorce, maintenance and so on regardless of communities or the personal codes in question. The sangh parivar’s constant attempt to reduce the UCC debate to these bullet points is just a form of rabid, communal gaslighting, which, of course, is consistent with the substance of its politics and ideology. Note that sangh ideologues never raise contentious issues like the Hindu Undivided Family in a single UCC discussion.
Nor, of course, has the sangh in its discussions of the UCC sought to encompass the true complexities of a subcontinental social formation with its protean diversities. As the 21st Law Commission report points out, the northeastern region itself has a mosaic of traditional practices relating to property rights that cannot, first, be hacked into a procrustean bed, and, second, isn’t necessarily iniquitous in terms of, say, gender. Thus, for instance, there are a fair number of matriarchal, matrilineal, and matrilocal tribal communities in the region.
Much has been made by the proponents of a UCC of unity, equating uniformity with solidarity. Unfortunately, the Hindu Right never deals in specifics, which leads us to suspect that their blueprint for a UCC is essentially a Hindu code rammed down the throats of minorities to subserve the grander project of constructing a Hindu State.
Finally, all of the above does not address the question of executive capacity. The Indian State has always been notoriously big on intent and short on delivery because its competence and logistical coherence are poor. For it to police such an invasive thing as a UCC without recourse to repression is difficult to imagine.
Suhit K. Sen is the author of The Paradox of Populism: The Indira Gandhi Years, 1966-77
