States based UCC

In the Directive Principles section, Part IV, Article 44 of the Constitution of India it is stated:  “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”. The State here refers to the Union Government. Therefore it is questionable whether a state government has the right to enact such a code in the first place.  Further, for those who support the UCC the basic argument is that India should have one law applicable to all citizens in matters of marriage, divorce, succession etc. The Prime Minister in his push for a UCC, had stated last July “ In one house,  if one member has one law and another member has another law, can that household, family run? So how will the country run with a dual system? “ He was referring to Muslim Personal Law. But now under his leadership the double engine government run by the BJP in Uttarakhand has put this argument on its head, by legislating a code applicable  to one state, itself establishing a “ dual system.” If every state legislates on its own code, where is the uniformity of the code? The other aspect is that it is not unform because tribal communities have been left out of the Code. Why should this be so? If indeed as is being claimed, this law is for women’s equal rights, why should women of any community be left out? There are constitutional provisions to protect customs of tribal communities. There are also constitutional provisions to protect minority communities, whether Muslim,Christian,Parsee or any other. It is double standards to exclude one section and include the others. We have argued repeatedly that uniformity does not mean equality. The Uttarakhand Code is neither unform nor, as we will shall see equal.

Undemocratic Procedure

A proposed law that directly interferes with and changes current practices and rights requires consultation, discussion and debate, before its passage. The government and its apologists claim that more than 60,000 persons gave their opinions to the committee and that the draft is based on such “ consultation.” That may be so. But this was an exercise before the draft was made. The second phase of consultation must be on the draft itself. It is accepted parliamentary procedure that the draft of a Bill placed in Parliament or the State legislature as the case may be, particularly a Bill of such significance, must be sent to the relevant committee of the House, which has representatives of the opposition too.  It is this committee that scrutinizes the Bill, invites opinions from concerned citizens especially representatives of those directly impacted by the proposed legislation.  Instead, the BJP has made it a practice to use its majority to ram through Bills. This has happened in Parliament and also in states where there are BJP governments. In the case of the Uttarakhand Uniform Civil Code Bill, despite opposition members protesting that they were not given any time to study the 192-page draft, it was pushed through. The haste was clearly to ensure its passage before the announcement of the Lok Sabha elections. As a result, apart from the objectionable clauses, it’s a shoddy piece of drafting.

Applicability of the Law

The first undemocratic clause concerns the applicability of the law. The “preliminary” clause states that the law is applicable to residents of Uttarakhand. In the list of definitions “ resident” is defined in a sweeping, broad sense to cover not just those who are domiciled in the state but even those who have lived in the state for just a year and even central government servants who have been transferred to the state (Ch 3.(n) (iii) and (iv). Why should for example, a permanent resident of Kerala, transferred by her employer, say for a two year stint to Uttarakhand, be governed by a law of a state which is not her own? Or why should a student, doing a two year course in the state be subjected to a law when she will be leaving the state in a given time frame.   Equally objectionable, the law states that even if only one of the parties in a marriage/ relationship is defined as an Uttarakhand citizen, the law applies to both and even if the couple are living outside Uttarakhand, the law will apply to them. ( example Ch 2.6) Thus by bringing a wide range of persons into the ambit of the law and stretching its jurisdiction beyond the territory of the state, the Uttarakhand government has appropriated to itself rights over which are not supported by the constitution.

Compulsory registration

The code makes registration of marriage compulsory which is as it should be since such registration affords protection for a woman in case of abandonment, desertion or denial of a marriage. However it appears that the interest of the woman is not the reason for this clause, but to give control to the government to approve or disapprove of a marriage. The sub- registrar, the authority for registration, has the right to refuse to register a marriage ( Ch 13.2. ii ). The sub registrar has to give the reasons in writing to the couple. The code does not specify grounds on which registration can be refused but leaves it open ended. The appellate authority is the registrar/registrar general whose decision will be final and binding. (Ch14.2) Imagine the harassment for a couple to be at the mercy of officials appointed by the government. Suppose for example, the marriage is of an inter- caste or inter-community couple which the official disapproves of— the Code gives him the power to interfere and make their lives miserable. Moreover what does “ final” and “binding” mean? That the couple can’t go to the court? The Code in its poor drafting does not make it clear. Thus a clause of compulsory registration which could help women has been turned into an instrument to permit harassment by vindictive officials. Further, the register— with all the personal details of the couple applying for registration and also details of reasons for rejection is to be “ open for inspection by any person”( Ch14. 15). This is an outright invasion of privacy. The only reason for such an obnoxious clause is to provide fodder for those opposed to the marriage.

This public notice for marriage was first introduced in the Special Marriage Act (SMA). In the experience of couples getting married who may not have parental approval, it has been seen that such public notices provide the ground for undue and unwarranted interference in self choice marriages of adults. Instead of reforming the SMA to remove such clauses and make it simpler, a recommendation of the Law Commission, this aspect has been included in the Code for compulsory registration.

Further, the clause of compulsory registration is with retrospective effect, specifically mentioning all those married before 2010. This is an absurd stipulation. If the couple does not register, it is considered a crime and liable to punishment –payment of a fine ranging from 10,000 rupees to 25,000 rupees and in case statement is found to be false by the official, imprisonment for three months. Thus a measure to take forward social reform has been changed into a coercive instrument to deal with a couple as though they are criminals. Instead, campaigns should be launched by the government about the need to register marriages.

Hindu Marriage Act not a Civil Code

The Code has replicated almost in its entirety the sections on marriage and divorce from the Hindu Marriage Act, 1955 and imposed it on all sections and communities. This Act was adopted after a big battle led by Dr. Babsaheb Ambedkar against the Hindu orthodoxy who did not want any change in Hindu personal laws including the right to have more than one wife, the refusal to include the right to divorce, the insistence on list of “prohibited” relationships, against the removal of the condition for the couple to belong to the same caste etc.  The opponents of reform held that since marriage according to Hindu “beliefs” was sacrosanct any interference would destroy the very institution of marriage and of religious custom. The Hindu Marriage Act 1955 (HMA) was adopted in the background of conflict and resistance from the orthodoxy to any progressive change. Therefore while it was a big step forward, it has the stamp of compromise leading to many  infirmities. The Uttarakhand UCC which imports the major aspects of the Hindu Marriage Act and imposes it on all communities, carries all these infirmities, particularly in the context of prohibited marriages, divorce, so- called conjugal rights, and so on. It omits issues of adoption and guardianship, retaining the present inequalities. It does not recognize same sex relationships, and thus in a sense criminalises such relationships.

The prohibitions on those who can marry and those who cannot is taken from the Hindu Marriage Act 1955 and imposed on all sections of society. For example, in some communities, cousins can marry, this is both a custom and usage. In the Uttarakhand Code this is among prohibited marriages. Also, it is stated that if custom and usage permit it may be permitted, provided it is “not against public policy and morality.” Who is to decide what is moral or not? The government and its bureaucracy. This is a reprehensible condition for the interpretation of usage and custom.

Divorce

On the issue of divorce the code gives similar powers to government officials to interfere on the issue of divorce. A divorce or annulment of a marriage also has to be registered. Here again the government appointed officials have been given the right not to register a divorce. When courts grant divorce, who is a government official not to register it?  The HMA’s illogical restriction that no divorce proceedings can be started till after a year of marriage is retained. If a woman is married to a violent spouse, why should she have to wait for a year to even start divorce proceedings? (Ch 4.28.1) Moreover the grounds for divorce before the one-year period such as “exceptional depravity and hardship” are undefined so that a crime say like wife-beating may not be considered “hardship.” The court also has a right in a divorce plea to grant as an alternative “relief” , “judicial separation” not divorce thus diluting the right to divorce. As far as divorce by mutual consent is concerned, the clause of having to live “separately for one year” in the HMA has been retained. What does “separately” mean? Sometimes a couple who have decided to divorce, do live under a common roof, because of various circumstances, though not within a marital relationship. Why put conditions once a couple has decided to divorce.

Polygamy and Halala

Much has been made by the BJP of the prohibition of polygamy in the Code (Clause 29). As far as the Muslim community is concerned the Muslim Women (Protection of Rights on Marriage) Act 2019, adopted after the Supreme Court outlawed triple talaq was already in operation. Clause 29 of the Code repeats this but with a negative difference. While the 2019 Act gives custody of “minor children” to the mother, the Code limits maternal custody of the child only till the age of five (Ch 5.35.2) . Statistics on polygamous marriages reflected in the National Family health Survey -5 show that it is not Muslim women  but other communities women also affected. It recorded 1.9 per cent of Muslims and !.3 per cent of Hindu women said their husbands had more than one wife. The community with the highest number of men with more than one wife according to the survey is tribal communities with 2.4 per cent, Scheduled Castes with 1.4 per cent, 1.3 per cent among OBCs and 1.2 per cent others. It also shows that the national average has been coming down across communities. Thus the constant refrain of polygamy among Muslims, is nothing but a communal campaign to target the community, not to protect all women of all communities who live with husbands who are polygamous. It needs to be remembered that it has always been courageous Muslim women who have challenged orthodoxy within the community to fight for their rights. It is Sameena Begum who has approached the Supreme Court against the obnoxious practice of Halala. The case has been going on since 2018. The Code (Ch 4. 30.2 ) prohibits any such practice. In any case such cases are rare but before taking such a measure, the Uttarakhand government should have held discussions with the community. The positive aspects of a Nikah could have been included in the Code such as the concept of Mehr, where a previously agreed amount is to be paid to the woman at the time of marriage and if it is deferred, mandatory in case of divorce, apart from the right to maintenance . A Nikah also provides for a contract between the two parties in case of break-up. This allows the woman to negotiate certain terms.

The Code could also have included a provision for a no-dowry marriage. But none of these reforms have been considered. It is just an imposition of majoritarian thinking.

Obligatory Cohabitation

The present law is that either spouse can in the case of separation by one party, ask for “restitution of conjugal rights.” This is a concept included in the Code (Ch 3.21) that fits in well with the ideology that marriage is sacrosanct even if the couple are unhappy. In our work among women in problematic marriages we found that there were women whose husbands had deserted them who did want to use this clause as a legal avenue to bring their husbands “back.” However they soon found that even if the court ruled in their favour of “restitution of conjugal rights” , if the decree was not implemented within a year, divorce was permitted without any delay. Thus this law which is supposed to protect women acts in the opposite way. The main objection is that this law has been used by men to force women to submit to “conjugal rights” of the husband when she has separated from him. Ordinarily no woman would like to divorce or separate unless there are good reasons for doing so, especially if there are children. To retain a gender neutral clause of restitution of conjugal rights, when a woman does take the decision to separate,  is retrograde. The language itself used in the code is so patriarchal and actually is a sanction for marital rape. For example on the issue of judicial separation (Ch 3.22.2) it states “where a decree of judicial separation is passed it will no longer be obligatory for the petitioner to cohabit with the respondent”.. in other words the norm is obligation to cohabit. The clause has been challenged in the courts. The Code should not have included it.

Manuvadi Invasion

The section in the Code which has received the greatest attention and criticism from a range of commentators and rightly so, is the highly Manuvadi invasion into personal choices of intimate partnerships in the Code. Described as “live in relationships” (Part 3, 378-389) this section seeks to box in a self-choice live in relationship between two adults into a marriage framework. Such a partnership if over a month old, must be registered. Even if there is “an intention” to enter into such a live-in relationship, it must be registered. Surely this formulation deserves a world gold medal for its absolute insensitivity to real life relationships— If the following month, the couple decide to separate, that too must be registered. The registrar must make a “summary inquiry”. Thus the very act of registration leaves the couple open for “ enquiry” into their relationship and if the registrar finds something “ suspicious” the police must be informed. Even more invasive, if the registering authority receives a “complaint” that a couple are living together and have not registered, the complaint must be noted and action taken. This is a clear legalization of vigilantism. Just as you have Romeo squads and anti – valentine day squads hunting down young couples in public spaces, now you will have hoodlums and goondas, barging into residences, demanding to know if the young couple living together are registered, the difference being that such activity will now have the legal sanction of the Code. This is a direct assault on the constitutional right of adults to freedom of choice, it is a blatant violation of human rights in addition to making a mockery of the right to privacy. This is exercising control of an  adult woman the core of manuvadi approaches. If such registration is not done, the punishment is a minimum of three months to six months. This Code reaches its long arm of surveillance to couples living outside the state if one of them is a resident of Uttarakhand. They are asked to register their live in relationship to the “registrar” where they live. The Code itself recognizes lack of jurisdiction so changes the language in the relevant clause for those living outside the state ( 378.2) to “resident of Uttarakhand living outside the state may (not shall) submit details of live-in relationship etc.” The whole concept of imposition of unconstitutional conditions on the choice of consenting adults as to how they live is an abomination which should have no place on our Statute book.

Property and Succession Rights

Present personal laws have detailed conventions of heirs and line of succession. The UCC over rides all of them without debate with communities involved. It claims to be ensuring equal rights for men and women specifically that Muslim women will gain because the UUCC ensures equal shares for sons and daughters whereas at present a Muslim daughter will get only half the share of her brothers. It also claims that it is doing away with the present difference between ancestral and self-acquired property. These claims are  deceptive. The Code gives the right for a property holder to will away his entire property. This undoes the reform in the Hindu Succession Act 2005 which after a long struggle by women’s movements, gave an equal share by birth to sons and daughters at least in ancestral property. At present most personal laws ensure a certain share of property is guaranteed for females. The Code in this sense will deprive women of a guaranteed share that they now have. Bias against daughters  has now once again got legal sanction as far as the right to will away the entire property to male heirs. This is more so in case of agricultural land. As it is daughters who inherit agricultural land as part of their share in ancestral property are under tremdous pressure from males of their family to give up that right. The Code makes it that much easier not to give daughters a share in agricultural land. The question of the rights of Hindu Joint families, a privilege Hindus have over other communities remains in tact as there is no mention of it in the Code. This hastily drafted Code, while claiming to help women actually does away with existing rights and protection since the right to will away one’s entire property is the over reaching change. The right to marital property has been a long-standing demand.The Code had an opportunity to include this right, but given the ideological underpinnings of the Code, this has been ignored.

Conclusion
The U-UCC is a shoddy piece of legislation which has been adopted to serve a narrow political purpose. It is a fraud both in terms of uniformity and equality. It centralizes power in the government over consensual relationships which is anti-constitutional. It seeks to impose a majoritarian view on all communities. The CPI(M) opposes this Code and demands it be withdrawn.

Article is being published with the permission of the author who is a member of the Polit Bureau of the Communist Party of India (Marxist) 

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Earlier, after Uttarakhand announced it had implemented the Uniform Civil Code in its state, Himanta Biswa Sarma had chimed in and promised he would issue it too in Assam. 

Himanta Biswa Sarma posted the following on social media site X, after the meeting, “On 23.2.2024, the Assam cabinet made a significant decision to repeal the age-old Assam Muslim Marriages & Divorces Registration Act. This act contained provisions allowing marriage registration even if the bride and groom had not reached the legal ages of 18 and 21, as required by law. This move marks another significant step towards prohibiting child marriages in Assam.”

Assam Cabinet Minister Jayanta Malla Baruah in a press briefing talked about the repeal of Assam Muslim Marriage and Divorce Act 1935 and giving a nod to the UCC. Baruah termed it as a “very important decision”, and said, “The honourable chief minister has already said that we are going towards Uniform Civil Code, therefore a very important decision has been taken today, that The Assam Muslim Marriage & Divorce Registration Act, 1935, will be repealed and no Muslim marriage or divorce will be registered under the Act. We want all such matters to be under the Special Marriage Act.” He also termed the Act as a colonial act that lost its significance in today’s society. He further criticised the act, claiming that it allowed for child marriage, and argued that the BJP led government had long aimed to drive out child marriage, saying, “It provides scope to register marriage before the permissible age of 21 for male and 18 for female.” 

The now repealed Act which previously had authorised 94 registrars to oversee marriage or divorce registrations has been reportedly replaced by the Special Marriage Act, according to the Assam government. The state will now take over the 94 registrars that were previously working with the now repealed Act. The state government has reportedly offered them a one-time financial compensation of Rs 2 lakh.

As part of the state government’s crackdown on child marriage, last September the Assam police had arrested more than 3000 people, majority of who belong to Bengali speaking Muslims, as part of the FIR against the 4000 plus FIR. The act was questioned by the Guwahati High Court while granting anticipatory bail to nine men. 

In February 2023, in response to a petition, Justice Suman Shyam observed, orally, that the charges under the Protection of Children from Sexual Offences Act, 2012 (POCSO) and rape charges against those accused of child marriage are “absolutely weird” allegations. “There are children, family members, old people… obviously it is a bad idea,” The judge condemned the state government as he granted anticipatory bail to the petitioners. 

Related 

Assam: Post by chief minister Himanta Biswa Sarma casteist, promotes oppression?

Targeting free choice in marriage, ‘Love Jihad’ clause likely in bill to ban polygamy: Assam

 Uttarakhand: Women’s groups reject UCC say provisions are unconstitutional, criminalises constitutional behavior, Muslims

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Given that the government has decided to be a prying power, let us become aspirational now in terms of what we want government to do. In pursuance of such aspirations, we have listed 10 things that the government should do, to make our lives absolutely better.

1. Compulsory “Delight” Days (CUDD):

• The world is a sad and bad one. Sometimes, when we find a Rs. 100 in a shirt pocket or safely placed in a book, on a random Wednesday, we would feel delighted. “I did not know this money existed we would tell ourselves and be happy about it. However, that seems to be far fetch given how useless Rs.100 is in today’s inflation ridden market. Therefore, states should introduce a planned surprise! Something for all married people to do so that there are something in life to look forward to, on a random Wednesday.
• An SMS-guided by algorithm developed in association with a leading Indian IT Company of course- should schedule a state-assigned activity: mandatory museum visits, a jaunt to try a new state- approved cuisine, or go to a nearest temple-designed to keep life just unpredictable enough (while staying safely within acceptable limits).
• Missing the CUDDs 2 consecutive times should attract a heavy penalty and missing it a 3rd consecutive time should attract a punishment of simple imprisonment

2.  State-Sanctioned Swipe Sessions: 

• Forget random dating apps’ algorithm deciding which profile to show you. All romantic profiles must be submitted for scrutiny. The states should establish a Compatibility Bureau that will curate your daily selection of state-approved potential partners based on subservience to the government, religion and other such factors.
• A central repository of those who ghost after a few messages should be created and they shall be fined after 3 ghosting incidents (Ghosting means-not replying to a message for days or weeks, or months or years or sometimes forever. For example, if you ask the government about when they will conduct the decennial census, you will be ghosted). 

3. Intimacy Bureau

• The government should establish the Intimacy Bureau which will deal with applications to engage in acts of intimacy such as sex, cuddling etc.
• Want to get intimate with someone? File an application with the Bureau outlining what you have in mind. The Bureau, in their infinite wisdom, will notify your parents (because who knows better, right?) Parents get to weigh in, and the Bureau makes the final decision – approve or deny! No more heartbreak! No more confusion! Just state-sanctioned romance under watchful parental eyes.

4. Pre-Approved Jokes

Comedians going to jail for cracking and sometimes, not cracking a joke is no more surprising. To avoid these incidents and also to support the art form, the government should establish Central Joke Repositories where jokes in least 7 languages apart from English are readily available. Comedians can choose from the repository to perform at any registered venue across the country. If the comedians think the jokes are getting repetitive, they could say the same jokes in another language. If jokes in Tamil are boring in Chennai due to repetition, they could make the same joke in Marathi, while in Chennai. Some might call it a circus and we agree. It is far better for comedians to be in a Circus rather than to be in a Jail.  

5. Ministry of Mandatory Hobbies (MoMH): 

• Many of us have always wanted to join the gym but never did because there is no one powerful enough to push us to make that decision. Therefore, the all-powerful government should make a mobile application ‘e-LIFE’-without any legislative backing or as such like it did with the Arogya Setu app-where people can register themselves against a hobby/activity and failure to engage in that activity will result in lowering of Citizen Points-which can be redeemed to get a government approved to get a paid holiday on optional holidays.

• Citizen Points can be made a part of Digital Public Infrastructure to ensure discipline and consistency in behaviour of people so that public order can be maintained. 

6. Department for Promotion of Bland Attires 

• Since the government is already at a stage where it can pass a law disallowing certain attires for students, it should — keeping in mind the national aims of social cohesion and constitutional goals of Equality—prescribe a common bland colour for all Indian nationals who go to study or work. Exceptions could be made for people from the film industry on the basis of how much nationalism their film espoused while being a mediocre piece of art.
• The colour dyes and textiles for such massive exercise should be sourced from an Indian producer without a tender-given how much time it takes for a tender process.

7. Re-Educate, Reform and Rejuvenate (RRR)

Rebellion starts at home. Teenagers talk back to their parents, and they (Teens) realize that authority can falter when confronted with and carry in into their youth to become citizens who ask for accountability and transparency. To avoid these radical notions, Parents should be given an opportunity to put their Children from ages 14-17 through intensive training camps run by third party certified organizations to unlearn the knowledge of such attitudes that ask for accountability or fairness. 

8. Clean Language before Clean Ganga 

• River Ganga can be cleaned up anytime if the government wants to— but a more pressing issue is the use of foul language/improper language in the most casual form by people across the Country.
• Citizen Points should be used to reign in the usage of such language wherein an honest national would report the usage of foul language by taking a video and uploading it to the e-LIFE On the basis of such person’s face and such face’s mapping with Aadhaar or such identification mechanisms, the Citizens points should be decreased. This will improve the general civic sense in the Society.
• This mission also can be a pilot project for using Citizen Points for schemes other than redeeming them for paid leaves.

9. Anti-Negative News Department

Optimism is for the Brave and Pessimism is for the Puny. While negative news like deaths of influential people, deaths of loved animals, national sports teams losing should be allowed, negativity in news space damages the morale of people leading them to think their country is not good. Therefore, a high-powered committee should be empowered with powers to issue show cause notices to all news and current affairs organizations for spreading negativity, and investigate their deeds. This committee should also be vested with powers to impose fines if negativity shown is not justified or necessary or has a disproportionately detrimental impact on morale of people.

10. Universal Alarm Scheme

In order to boost productivity and make sure maximum people are working at the same time, the government should mandate that all households install an alarm device- sold by the same person who manufactures dyes for the Bland Clothes Scheme under a subsidy by the government-and they all should ring at 5:00am. This will not only ensure that everything gets an early start but will also boost the health of society in general. People should be given an opportunity to opt out of this scheme, at the cost of losing a significant number of Citizen Points.

For a developed nation, the government will have to take into account the aspirations of people. Let us hope that the government takes note of these if it does not have these in pipeline already.

Hail Viksit Bharat!

(The author is a legal researcher with the organisation)

[1] Section 378, UCC of Uttarakhand, 2024.

[2] Section 387(3), UCC of Uttarakhand, 2024

[3] Section 385, UCC of Uttarakhand

The post 10 Suggestions to government for achieving Viksit Bharat from “Delight Days” (CUDD) to an “Intimacy Bureau” to Ministry of Mandatory Hobbies (MoMH) appeared first on SabrangIndia.

But despite the gloom that surrounds Muslims today, they should at least debate the state UCC, for the simple reason that it might have some positives to offer. It is along expected lines that conservative organizations like the Jamiat Ulama e Hind would reject the UCC by calling it anti-Sharia and against the religious beliefs of Muslims. But the silence amongst the liberal and progressive Muslims on the issue is baffling, to say the least. Their silence only lends credibility to the right-wing claim that all Muslims think alike when it comes to religious issues; thereby erasing the boundary between orthodoxy and dissent within the community.

This is not to suggest the UCC in its current form is beyond criticism. Indeed, its most draconian provision is the directive to register live-in relationships which directly negates the right to privacy. As others have pointed out, this provision might lead to harassment of young couples by the police. However, this is a concern for all religious communities, especially the young people. In this article, I want to focus only on those aspects which will impact the Muslim community.

Among the provisions of the UCC that will directly impact Muslims are property rights, inheritance, divorce, child marriage, polygamy and halala. Let us see how changes in these practices will specifically affect Muslims.

Property rights: The UCC gives equal rights to men and women in the parental as well as ancestral property. As per the Sharia, women are only entitled to half the share of men.

Inheritance: Muslim spouses, sons and daughters are now equal inheritors of the deceased parents’ property. As per the Sharia law, a Muslim could only bequeath one-third of the property to whom he or she wished. According to the UCC, there is no limit and the parents are free to give property to children by executing a Will.

Divorce: As per the Sharia, only husbands have the right to divorce. The most that women can do is to ask for Khula which can be denied by the husband. The UCC empowers women to initiate divorce proceedings by accessing the courts, a right which has been available to women of other religious communities since decades.

Child marriage, polygamy and halala: The UCC has completely done away with these antediluvian practices. The Sharia, on the other hand, provided religious justification for all these practices. It argued that child marriage is Islamic as it is legitimated by the practice of the prophet himself. Clearly, their view run contrary to the recently enacted POCSO Act, which makes sex with a girl below 18 years of age as statutory rape. The UCC has made 18 and 21 as the minimum of age of marriage for girls and boys, respectively, thereby making child marriage illegal. This is not the place to get into statistical arguments over which community has the most child marriages. The fact is that child marriages exist within the Muslim community too and that has detrimental effects on the physiology and psychology of the child.

Similarly, polygamy and halala have been outlawed by the Uttarakhand UCC. Though it is known that Hindus have more polygamous unions as compared to Muslims, let us not forget that such unions have debilitating effects on Muslim women. Its eradication, therefore, should be welcomed first and foremost by women themselves. The UCC does away with the evil practice of nikah halala where a women must first marry another man and consummate the marriage, before she can return to the first husband. That such a degrading practice has been outlawed should be welcomed by all Muslims.

Timur Kuran, the historian of Muslim decline, through the story of Auqaf (sng. Waqf), tells us how this institution, instead of helping Muslims, became a millstone around their neck. The larger thesis of his work, The Long Divergence: How Islamic Law Held Back the Middle East, is that without a modern law, a progress and development are not possible. Clearly, the UCC promulgated in the state of Uttarakhand gives us an opportunity to at least debate the points which can become transformative for Muslim society. Its wholesale rejection is certainly unwarranted.

Any civilized society will find it hard to defend that it legally discriminates against women. The provisions of unequal property rights, no right of divorce, exploitative practice of halala, have made Muslims into the ‘other’, whose codes are different from the rest. This hampers integration but more importantly it robs half the Muslim population of human dignity and freedom.

Certainly, the law has come in a BJP-ruled state whose report card against Muslims leaves much to be desired. But then as Pratinav Anil shows in his book, Another India, the same can be said about other political parties. So, Muslims have to choose what benefits them, irrespective of the political dispensation in question.

If the Muslims are so averse to the BJP promulgating UCC, what has stopped them from reforming their personal laws. The conservatives have long argued that it cannot be reformed since the Sharia derives from the Quran and the Hadith. This is a bogus argument as all jurisprudential matters derive from human faculty rather than being sent by God. If Muslim jurists interpreted the Islamic code hundreds of years ago in a particular way, there is nothing wrong in re-interpreting them now. After all, such codes have periodically been revised in Muslim majority countries. The only countries which still operate on the medieval Sharia is perhaps India and Afghanistan. And that says a lot about Indian Muslims who despite living in a democracy since decades have not imbibed its spirit. They only seem to be reminded of the democracy and Constitution when their orthodoxy is threatened.

Some analysts have point out that by leaving the tribal communities outside its purview, the UCC is specifically designed to target the Muslim community. But there are reasons to keep tribes outside the UCC. Their remoteness makes sure that their customs and traditions do not impinge upon either the rural or the urban society. Moreover, as Ramchandra Guha points out in his seminal essay, Adivasis, Naxalites and Indian Democracy, tribal communities generally treat their women much better than the caste Hindu or caste Muslim society. Moreover, these analysts forget that tribe is a religion neutral category which means that even Muslim tribes are exempt from the provisions of the UCC. The problem that gets overlooked is that UCC is especially relevant in situations of deep gender discrimination. As the above discussion lays bare, the Muslim society legally discriminates against women and, hence, the need for UCC.

One can certainly argue that such measures should not be imposed but should be an outcome of organic growth. The Left has made this argument since decades but it has no idea of the internal authority structure within the Muslim community. If reform was to happen in India, it would have happened long ago, when loads of Muslim countries were reforming their personal laws. The very fact that the conservative leadership always takes any talk of reform as an attack on religious freedom means that they have no interest in reforming the personal law. Indeed, most of them believe that it is perfect and it is this theological puritanism that inhibits them from seeing how much the society around them has changed. Thus, the only way to reform Muslim personal law seems to be an imposition, which is what the UCC is doing.

Arshad Alam is a Delhi based independent researcher and writer.

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The Uttarakhand government, led by Pushkar Singh Dhami, has recently introduced the Uniform Civil Code (UCC), which has sparked considerable opposition from various segments of society. Critics argue that the UCC violates the basic principles of governance, legislation, and democracy. Upon analysing some of the provisions of the Uttarakhand model of UCC, it becomes clear that this legislation is a blatant disregard of the fundamental tenets of a modern welfare state as enshrined in the Constitution of India. Furthermore, it is a direct obstacle to the state’s progress and that of its people, raising serious concerns about the government’s commitment to upholding the rule of law. The UCC that governs personal laws can also be characterised as a flagrant example of the state’s brutality and blatant disregard for the legislative process.

It is widely understood that the law plays a crucial role in maintaining social order, upholding justice and protecting human rights. In this context, the state needs to exercise its sovereign function judicially and with due regard for the fundamental basis of a valid law and core tenets of constitutional values. However, the enactment of laws must also adhere to certain fundamental principles of legislation, including fairness, the rule of law, and the supremacy of the Constitution. In this essay, we explore the Uttarakhand model of the Uniform Civil Code (UCC) and what are the primary imperatives of upholding basic standards of legislation. Additionally, we delve into the philosophical perspectives of Hobbesian positivism and natural law theory, emphasizing their relevance in understanding the essentials of valid law and the significance of incorporating the Law of Nature in statecraft and policymaking. 

Destroying the Basic Standards of Legislation

The proposed Uniform Civil Code (UCC) by the Uttarakhand government carries inherent complexities upon analysis of its premises. It aims to cover all aspects of human relationships, which results in disregarding personal liberty, secularism, democracy, constitutional values, the right to live with dignity, and the fundamental right to privacy as provided under Article 21 of the Constitution of India. The UCC endeavours to unify family laws, including issues related to marriage, divorce, registration of the same, conjugal rights, judicial separation, nullity of marriage, maintenance, alimony and custody, intestate and testamentary succession, and live-in relationships, which not only contrary to the basic philosophy of the constitution but also against the principles that must uphold by a civilised state.

The State has the responsibility to legislate based on the collective will and interests of its citizens. However, this sovereign power is limited by considerations of justice, fairness, and the rule of law. The state must adhere to constitutional principles and fundamental rights while exercising its prerogative to legislate. Unfortunately, the Uttarakhand state government has failed to understand the correct interpretation of the right to equality. Equality is not a theoretical concept that requires promotion but rather an ideal that must be implemented in practice. Therefore, all sections of the state population have the right to enjoy their personal laws, but legislations such as the Uniform Civil Code have deprived them of their freedom. It is important to recognize that unequal treatment cannot be justified under the banner of equal treatment.

The principle of the supremacy of the constitution ensures that laws are consistent with the overarching framework of rights and liberties, preventing arbitrary exercises of power. Fundamental to the notion of justice is the concept of fairness. Laws must be impartial, treating all individuals equally before the law. Discriminatory legislation undermines the integrity of the legal system, perpetuating inequality and injustice. Moreover, adherence to the rule of law is indispensable for maintaining societal order and stability. It requires that laws be clear, predictable, and applied consistently, thereby fostering confidence in the legal system and promoting respect for its authority. The way the UCC was introduced just before the general election of 2024, it seems that the whole exercise is to polarise the state aiming to give electoral benefits to the ruling party. Given the above text, it can be safely stated that it is bad law and Hon’ble Supreme Court of India must nullify it through suo moto cognizance.

Examining the UCC through Legal Jurisprudence

The contentious UCC if examined through the lenses of legal jurisprudence, it has failed to convince the primary norms of legal philosophy. Herein, it would be worthwhile to mention Thomas Hobbes’s theory of positivism which emphasized the role of sovereign authority in establishing and enforcing laws. According to Hobbes, the legitimacy of laws derives from the sovereign’s power to impose them, rather than any inherent moral or natural principles. In Leviathan, Hobbes famously wrote, “Covenants without the sword are but words.” This assertion underscores the centrality of sovereign authority in maintaining order and obedience to the law.

Hobbes believed that a social contract between the government and the governed was necessary for the stability and legitimacy of a state. However, Hobbs also recognized that certain basic standards of justice were crucial in upholding this social contract. Hobbes argued that if a law goes against the fabric of society, it must be opposed. Such a law holds no legal sanctity as it disregards the social contract and the tenets of the Constitution. Despite his positivist view of law, Hobbes acknowledged the importance of laws being just and equitable. He asserted that for laws to be valid, they must meet the conditions of the rule of law, equality, and fairness. Only through satisfying these conditions can the laws earn obedience and support from the people. Moreover, Hobbes contended that the Law of Nature, grounded in principles of self-preservation and mutual cooperation, should inform the enactment and execution of laws. The Law of Nature, according to Hobbes, dictates that individuals have the right to defend themselves and their property, but they must also recognize the need for social order and cooperation. Thus, any legitimate exercise of sovereign authority must be guided by the principles of natural law to ensure the welfare and security of the populace.

Implications for Statecraft and Policy

In contemporary Indian politics, the insights of Hobbesian theory have significant implications for statecraft and policymaking and legislations like UCC, Freedom of Religion and Anti-conversions legislations of Uttarakhand, Madhya Pradesh, Uttar Pradesh, and Gujarat etc. lack certain merits being valid and just laws. While states retain sovereign authority to enact laws, they must do so by following the principle of justice and the general norms of natural law. Any legislation, policy or programme that infringes upon individual rights or perpetuates inequality is unethical to the spirit of justice and fairness enshrined in the international human rights law and, hence liable to be rejected. Moreover, Hobbes’s emphasis on the Law of Nature underscores the importance of considering broader ethical and moral principles in crafting policies and governance structures. Policies that prioritize the common good and respect for individual rights are more likely to garner legitimacy and compliance from the populace. Additionally, incorporating the principles of natural law into statecraft can help mitigate social conflict and promote solidarity among citizens. 

Unique Law that Regulates Personal Freedom

The Uttarakhand model of UCC is an exceptional law, as it is the only legislation in India that considers live-in relationships as a criminal offence. It is worth noting that the Hon’ble Supreme Court of India has already legalized live-in relationships and any form of union between male and female, as well as the rights and freedom of the LGBTQ community, through various verdicts. However, some provisions of the UCC are in contradiction with the Supreme Court’s earlier rulings. Certain provisions of the UCC are not only peculiar but also laughable as they mandate the consent of parents and the registration of live-in relationships under state administration.

The state government lacks minimum information that any imposition of laws that restrict live-in relationships or marriage rights constitutes a violation of fundamental human rights enshrined in international human rights instruments and constitutional frameworks. These include the rights to freedom of association, the right to choose a life partner, the right to marry and also the right to remain unmarried, freedom of privacy, and dignity, as well as the right to equality and non-discrimination. Any law that undermines these rights undermines the very foundation of a democratic society based on the rule of law and respect for human dignity. Furthermore, the criminalization or penalization of consensual adult relationships infringes upon the right to privacy, which encompasses the right to make decisions regarding one’s personal and intimate life free from unwarranted interference by the state or society. Laws that seek to regulate or dictate individuals’ choices in matters of personal relationships violate this fundamental right and undermine the autonomy and dignity of individuals. 

Threat to Constitutional Values

Sprawling protests against the contentious UCC can be seen across Uttarakhand, though the hilly state has a tiny minority population largely concentrated around Nainital and Dehradun but all prominent organisations of Muslims and human rights activists have registered their protest in the state against the UCC and its forthcoming ill-effect if implemented throughout the state in a single legislative stroke. Previously, the 22^nd Law Commission of India sought the general public views on the desirability of the Uniform Civil Code throughout the country and the commission received massive opposition from all sections of the society as any demand of the UCC in the country will create more divisions than unity. Any attempt to implement the uniform civil code either in any province of India or national level will be boomeranged and may also endanger the unity and integrity of the nation.

It is extremely concerning to witness how the new legislation was introduced. This is a clear indication that the state leadership lacks faith in the core principles of the Indian constitution, which is quite appalling. The state leadership seems to have forgotten that secularism, social justice, equality, and the rule of law are fundamental principles that are crucial for the functioning of modern democratic societies. Secularism ensures that there is a separation between religion and state, thus ensuring religious freedom and neutrality in governance. Social justice, on the other hand, aims to ensure that resources and opportunities are distributed fairly and equitably, addressing historical injustices and marginalization. Equality mandates that all individuals be treated with dignity and afforded equal rights and protections under the law irrespective of caste, creed, language and religion. The rule of law establishes that laws must be clear, consistent, and applied impartially, irrespective of one’s status or identity. Nevertheless, the state enacts a law that targets a particular community and also intrudes on the personal freedom of the individual, it signifies the state has no belief in the idea of India and some of the sacred principles of the modern welfare state.

Dr. B.R. Ambedkar, the chief architect of the Indian Constitution, emphasized the importance of upholding constitutional values and protecting the rights of marginalized communities especially the minorities of India. He famously stated, that in a parliamentary democracy, minorities must always be won over, and never be dictated to. He also said, “In an autocracy where the laws are made by the wishes of a dictator or by an absolute monarch, the art of speaking is unnecessary”. No autocrat, no absolute monarch need pay any attention to eloquence because his will is law. But in a parliament where laws are made, no doubt by the wishes of the people, the man who succeeds in winning our opposition is the man who possesses the art of persuading his opponent. You cannot win over a majority in this House by giving a black eye to your opponent.” Dr Ambedkar’s advocacy for social justice and equality resonates strongly in the context of opposing legislation that targets specific communities, as it reflects a commitment to addressing systemic injustices and promoting inclusivity.

Additionally, the legislation that targets a particular community undermines the core values of anti-discrimination, equality and social justice. The Uttarakhand Uniform Civil Code violates Article 25, read together with Articles 21 and 14 of the Constitution of India. This is because religious, linguistic and cultural minorities have the right to preserve their customs and practices. It is unconstitutional and unethical for state leadership to culturally marginalize a particular religious minority community that is already vulnerable and underprivileged. By endorsing such legislation, state leadership exacerbates disparities and hinders access to opportunities for marginalized communities. Moreover, they violate the principle of equality by treating individuals differently based on their religion, ethnicity or other characteristics. Such legislation also undermines the rule of law by allowing for arbitrary use of power and circumventing legal safeguards meant to protect individual rights.

Conclusion

In conclusion, it is crucial that the state’s sovereign function of enacting laws must be guided by considerations of justice, fairness, and the rule of law. The Hobbesian theory offers valuable insights into the balance between sovereignty and basic standards of justice, emphasizing the utmost importance of valid laws that adhere to principles of equality and fairness. States must incorporate the principles of natural law into statecraft and policymaking to uphold the integrity of the legal system and promote the welfare of their citizens. The legitimacy of laws ultimately rests on their ability to reflect and uphold the fundamental principles of justice and morality, which must be given priority over any other considerations. 

The Author teaches at Campus Law Centre, Faculty of Law at University of Delhi

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Uttarakhand: Women’s groups reject UCC say provisions are unconstitutional, criminalises constitutional behavior, Muslims

Uttarakhand state assembly tables UCC Bill amidst protests by opposition members

The post Destroying the basic standards of legislation- the Uttarakhand Model of UCC appeared first on SabrangIndia.

The proposed bill makes way for a uniform legal framework for issues such as marriage, divorce, land, property, adoption and inheritance applicable, irrespective of the religion of the people following it. However, the bill proposes to exempt members of the Scheduled Tribes from its ambit.

Protests erupted within the House from opposition members before the bill was presented in the Uttarakhand Assembly as the members stated that they were not given adequate time to examine the bill. The said bill runs into a total of 192 pages, and has been divided into four parts. The first part concerns itself with provisions related to marriage and divorce and has been divided into seven chapters. In regards to the aforementioned areas, the bill proposes to make all citizens of the state irrespective of their religion subject to the same law. It aims to prohibit practices like halala and iddat (Islamic rituals following divorce or the husband’s demise). The UCC also details a full prohibition on polygamy and child marriage, and reportedly seeks to set a standardized minimum age for girls across all religious groups for marriage, and also set a uniform procedure for divorce. According to the bill, the legal age for marriage for men is 21 whereas for women it is 18.

The second part of the bill contains provisions regarding successions and had been divided into seven chapters as well.

Under the many provisions introduced as a part of the UCC bill, a detailed set of guidelines for unmarried couples living with each other can be found under Part 3 of the bill. The Uttarakhand government has decided make it mandatory for couples to do registration of live-in relationships within the state. Surprisingly, through the provision, even people from the state who are residing in a live-in relationship outside Uttarakhand are required to provide a statement to the state Registrar. In furtherance to this, it has also specified that if either of the partners involved is below the age of 21 then the Registrar is obligated to notify their parents or guardian regarding the registration or termination of the live-in relationship. Even punitive actions have been attached by the state government in case of non-registration of such live-in relations beyond a period of one month, as people who fail to comply with these rules may face fines up to twenty-five thousand rupees or even imprisonment for 3 months or both. [Clause 387 (1)]

Furthermore, any person that makes any averment in the statement regarding the live-in relationships, which is false or the person making it has reason to believe to be false, or withholds any fact in this regard will be penalised with fine not exceeding twenty-five thousand or an imprisonment exceeding up to three months, or both. [Clause 387 (2)]

It is pertinent to highlight here that the bill also provides imprisonment for a term of six months or with a fine not exceeding twenty five thousand, or both, for the partners involved in case they fail to submit the statement of the live-in relationship on being required to do so through a notice. [Clause 387 (3)].

Reactions to the UCC bill:

According to NDTV, Uttarakhand’s Chief Minister Pushkar Singh Dhami, had stated a day prior to tabling the bill that the said UCC bill will be for the good of all sections and also be in line Prime Minister Modi’s vision of ‘Sab ka Saath, Sab ka Vikas’ and ‘Ek Bharat, Sreshtha Bharat.’ However, as certain sections of Muslim women’s movements have rallied for doing away with the erstwhile Triple Talaq, however, they too have criticised the appropriation of their voices and issues by the communal politics of the BJP. According to reports, these Muslim organisations who had been fighting against Triple Talaq had not even been consulted when the central government was formulating the law, which shows the BJP’s own preoccupation with its own agendas.

The Uttarakhand State Parliamentary Affairs Minister Premchand Aggarwal has defined the UCC as the brainchild of RSS ideologue Syama Prasad Mukherjee, who also states that “many things could not be done earlier because of the politics of appeasement.”

The BJP has often rallied the cause of Muslim women and their supposed rights to divorce by propagating the Uniform Civil Code as a solution. However, this has had several dissenters, including those arguing for Muslim women’s rights from civil society groups who criticised the BJP for its politics of communalism. In an issue of Sabrang India dates, July 2004, sociologist and public writer, Yokinder Sikand has written extensively about how Muslim scholarship has relentlessly written about the outlawing the provision of Triple Talaq. Senior advocate Indira Jaisingh too wrote for Sabrang India about the need for all “unjust laws” to go whether they belong to Islam, Hinduism, or Christianity. However, a more recent piece on the implementation of a Uniform Civil Code highlights the complexities involved in ensuring that discrimination does not take place while trying to propagate uniformity and equality, argues that, “The denial of discussion, dialogue and debate towards attainment of goals and legal dictums halt advancement and progress, and can be counter-productive.”

Similarly, Teesta Setalvad, highlights how the Sangh Parivar has “communalised an essentially secular concern” which has led to an intellectual crisis. The piece argues that Muslim women are caught between the Hindu right and the Muslim orthodoxy. The Hindutva rise in support of a UCC is thereby argued to be for unification of the nation, which the BJP does on communitarian and communal lines.

However, the UCC it seems is here to stay as legislators across the country from BJP ruled states vow to bring it.

On February 2, Assam CM Himantaa Biswa Sarmaa was seen stating that “We are lining up Assam Polygamy Ban Act. We will also closely monitor the developments in Uttarakhand.”

Please embed:

VIDEO | “We are lining up Assam Polygamy Ban Act. We will also closely monitor the developments in Uttarakhand. If Uttarakhand UCC Bill is laid on Feb 5, then we will see if we are in a position to implement the UCC (in Assam),” says CM @himantabiswa. pic.twitter.com/lcEvp5oLGC

— Press Trust of India (@PTI_News) February 2, 2024

Similarly, Rajasthan’s minister Kanhaiya Lal Choudhury has supported the bill, staying that Rajasthan is second to implement the UCC after Uttarakhand.

The UCC bill can be found here:

Related:

Uniform Civil Code or Gender Justice?

The Implementation of a Uniform Civil Code

Muslim women need not move court to register divorce by talaq: Kerala High Court

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