The last week has brought back into the limelight a long-lost discussion of wealth and redistribution back into popular discourse. After Independence, the redistribution of wealth and land was not a point of discussion but an inevitability that merely needed a plausible way. The communists and the Congress—the two largest political groups post-independence—were principally in agreement as far as land redistribution was concerned. The era of such land redistribution ended in the 1980s, and before it could begin again, liberalisation arrived, followed by Hindutva Politics. However, with Congress leader Rahul Gandhi advocating a Caste Census and a wealth survey, and with Prime Minister Narendra Modi reacting to this narrative, the discussion of wealth redistribution has once again been reignited.

On April 24, news agency ANI quoted Indian Overseas Congress Chairman Sam Pitroda’s interview clip and tweeted from its official handle—the remark made by Mr. Pitroda explaining how inheritance tax works in America. Later throughout the day, in what looked like a massive case of headline-management and people jumping onto the outrage bandwagon, liberals and others alike responded to this remark by saying that an Inheritance tax is not good for India, etc. Some have welcomed the idea too.

The whole issue and discussion on inheritance tax should be more than a mere poll time debate that will wither down after the next big headline makes its way, there are two main issues that those who are decrying over the issues seem to have missed.

1. The Congress has not promised—in its manifesto—that they will conduct a wealth survey or that they will levy an inheritance tax. They have only stated in their Manifesto—titled Nyay Patra—that they will bring in suitable policy measures to tackle the inequalities in the country. It was Rahul Gandhi who mentioned the survey in a speech.
2. Sam Pitroda too stated the issue of inheritance tax as an example of legislation that looks to curb the concentration of wealth and when seen in the context, his remark about inheritance tax is nothing more than an example he used to put his point forward.

However, the discussion on Inheritance Tax offers insight into the responses from different strata of Indian society. To enhance the quality of discourse around Inheritance Tax, we need better information than a banal and random tweet saying ‘the government is coming for your house and car’ or a speech by the PM, a man good at scare mongering.

Let us talk about Inheritance Tax without the scaremongering.

India’s legal system doesn’t levy an inheritance tax. This means you can inherit property or assets from a deceased individual, regardless of your relationship, without owing any tax to the government. However, this wasn’t always the case. Until 1985, an “estate duty” similar to an inheritance tax existed. It was ultimately abolished due to two key factors: the administrative costs of collecting the tax outweighed the revenue it generated, and its complex nature frequently resulted in legal disputes. This tax applied to the total value of inherited assets, including movable and immovable property like land and investments, with exemptions for smaller inheritances and specific regions. While it covered assets both within and outside India if the deceased was an Indian resident, its high tax rates, reaching up to 85%, coupled with administrative costs, led to its discontinuation as observed by Finance Minister V.P. Singh in 1985.

Origins

Emperor Augustus of Rome is said to be the pioneer in establishing an inheritance tax in Rome, in 6 A.D to fund military pensions. With the decline of the Western Roman Empire, the inheritance tax system too disappeared. It could have existed in Egyptian Civilisations too—the practice of levying fees on property left in succession.[1] In the feudal era, when the tenancy rights passed onto the next generation, the feudal lord would ask for a levy for that transition to happen. The famous 18th-century philosopher-economist, Adam Smith argued that inheritance tax takes away/diminishes the capital value of the property, and tends to diminish the funds that would have been used for productive labour. He essentially said—let the money go to the private entity which will put such money to better use than the government “which maintains any but unproductive workers.”[2] English Philosopher Jeremy Bentham proposed that inheritance tax should be levied at a higher rate as the inheritance gets passed down to distant relatives but should not be levied on inheritance to close relatives.[3] Later, it took many forms and many governments have adopted it.

What is the rationale for inheritance tax?

While governments in the medieval period may have used the revenues from taxes to fund conquests etc, the governments of today are more overarching in terms of the work they do—from supporting infrastructure creation and security of the country to the welfare of the people. Irrespective, inheritance tax is a source of revenue for the government, like any other tax.

Some argue that there is an inherent inequality in not levying inheritance tax. How? If a person receives earnings over a certain limit, she will have to pay income tax. Then, why is the person receiving inheritance of a certain high value—exempt from paying tax over such receipt?[4]

A second argument is that inheritance or the lack of it, translates into inequality of opportunity and therefore, inheritance tax provides a way of neutralising inequality in wealth inheritance to achieve greater equality of opportunity.[5]

Some argue that this is a double taxation of sorts since the inheritance which is being passed down already would have been subjected to tax and then it will again be subjected to tax if inheritance tax is levied. However, one should note that taxing doubly is not the same as sending a person to jail twice for the same crime. Tax is not a punishment. The only bar is that the tax levied is sensible, yields greater benefit and does not overtly cripple the taxpayer.[6]

How does the world engage with Inheritance Tax today?

While inheritance taxation is associated with countries with a communist government, the countries which fall into the categories of ‘liberal democracies’ list are the ones who levy high inheritance taxes. Out of the 27 EU Countries, 19 levy income tax but only 2 countries—Belgium and France—revenues from inheritance, estate and gift taxes form more than 1% of total taxation.[7] The lesser portion of inheritance taxes out of the total taxations is because there is a difference between the tax rates when the wealth is passed down to close relatives such as spouse, children, parents, grandchildren etc and when it is passed down to distant heirs with the former being lesser. For example, in Brussels-Capital Region, Belgium, the tax rate for a linear heir inheriting wealth of value of over 500,000 Euros is 30%, but for a brother or sister, the tax rate is 65% for receiving a net share valuing over 250,000 Euros.[8]

In France, the Taxable Proportion of assets of a deceased person are arrived at by deducting the personal allowances which are different for different relatives with it being a 100,000 Euros for Children, Father or mother and almost 8000 Euros for a nephew or niece. Once these allowances are deducted, the inheritance tax varies according to the amount received by the heir with the higher being 45% for a share valuing over 1,808,677 Euros. In the United Kingdom, Inheritance tax is charged at 40% above a threshold, currently set at £325,000.[9]

In Japan, the rate of inheritance tax varies from 10% to 55% depending on the sum received by the heir. However, an amount of 30 million Yen +6 million Yen per heir is exempted from total taxable assets. This means, the threshold is 30 million Yen +6 million Yen per heir after which the inheritance tax begins to apply.[10]

Is inheritance tax harmful to the middle class?

This question can only be answered with a definite understanding of who the middle class in the country are. According to a report by Knight Frank, if one has a net worth of Rs. 1.44 Crore, then she is among the top one percent of individuals in India. Inheritance Tax, even in any policy maker’s assumption will not be levied on anyone who is giving their savings to their children to start a business or to get a better life. It gets triggered only after a threshold. For example, take Belgium—if the share of heir is more than Rs.4.45 Crore, the tax rate applicable to her is 30%. Similarly in France, if heir is receiving more than Rs. 16.16 Crore in inheritance, a 45% of inheritance tax is levied. Therefore, inheritance tax, when levied with a threshold—as it is done as a principle—is not impactful on the middle class at all, in India.

Conclusion

Inheritance Tax, or a caste census are not some magic bullets to solve the inequality problem in India. However, they present interesting and strong case for adoption in a country where welfarism and capital asset creation are the two most important needs. The Modi government has normalised the tax cut regime for corporates by slashing corporate tax to 22% in 2019 and announced the National Monetisation Pipeline—a roadmap for monetisation of government assets to raise an estimated Rs. 6 Lakh Crore from FY 2022 to FY 2025. This unsustainable way of raising money was to be countered by a more sustainable way of raising revenue for the government expenses such as taxation. The counter has not happened yet but if it does happen through inheritance tax, it would not have an adverse effect on the middle and poor classes in the country.

(The author is part of the organisation’s legal research team)

[1] Hunter, M.H., 1921. The inheritance tax. The Annals of the American Academy of Political and Social Science, 95(1), pp.165-180. Available at: https://journals.sagepub.com/doi/pdf/10.1177/000271622109500109 [Accessed 25 Apr. 2024]

[2] Smith, A., 1776. The Wealth of Nations, Book V, Chapter 2. Available at: https://www.adamsmithworks.org/documents/chapter-ii-of-the-sources-of-the-general-or-public-revenue-of-the-society  [Accessed 25 Apr. 2024]

[3] West, M., 1893. The theory of the inheritance tax. Political Science Quarterly, 8(3), pp.426-444. Available at: https://www.jstor.org/stable/2139827 [Accessed 25 Apr. 2024]

[4] Murphy, L. and Nagel, T., 2002. The myth of ownership: Taxes and justice p:142 . Oxford University Press. Available at : https://books.google.com/books?hl=en&lr=&id=osgTDAAAQBAJ&oi=fnd&pg=PR7&dq=The+myth+of+ownership+liam+murphy&ots=qHg2OT6dAm&sig=6LFgwzeINdU_WlLlc4lWkj1fcI0 [Accessed 25 Apr. 2024]

[5] Prabhakar, R., Rowlingson, K. and White, S., 2008. How to defend inheritance tax (Vol. 623). Fabian Society. Available at: https://oro.open.ac.uk/31364/  [Accessed 25 Apr. 2024]

[6] Brown, R.C., 1935. When Is a Tax Not a Tax. Ind. LJ, 11, p.399. Available at: https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/indana11&section=41 [Accessed 25 Apr. 2024

[7] Yanatma, S. (2024). Inheritance tax across Europe: How do the rules and rates vary? [online] euronews. Available at: https://www.euronews.com/business/2024/04/16/inheritance-tax-across-europe-how-do-the-rules-rates-and-revenues-vary [Accessed 25 Apr. 2024].

[8] FPS Finance. (2020). Calculation and payment. [online] Available at: https://finance.belgium.be/en/private-individuals/family/death/inheritance-tax/brussels-wallonia/calculation-payment#q2 [Accessed 25 Apr. 2024].

[9] Seely, A., Masala, F. and Keep, M. (2024). Inheritance tax: Current policy and debates. [online] House of Commons Library. Available at: https://commonslibrary.parliament.uk/research-briefings/sn00093/#:~:text=Inheritance%20tax%20is%20paid%20on,currently%20set%20at%20%C2%A3325%2C000. [Accessed 25 Apr. 2024].

[10] National Tax Agency (Japan) (2023). No.15001　Cases where inheritance tax is imposed. [online] Nta.go.jp. Available at: https://www.nta.go.jp/english/taxes/others/02/15001.htm [Accessed 25 Apr. 2024].

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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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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.

The post Why Muslims Should Debate the 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

The post Uttarakhand state assembly tables UCC Bill amidst protests by opposition members appeared first on SabrangIndia.

While Article 44 of the Constitution envisages an intent in having a uniform civil code applicable throughout India, the Constitution itself when it gives/gave concurrent power both to the Parliament and to the States to deal with different aspects of personal laws (Entry 5 in the Concurrent List of the Seventh Schedule of the Constitution dealing with marriage and divorce, adoption, succession, and all matters subject to personal law immediately before the commencement of the Constitution)

A Uniform Civil Code (UCC) is intended to replace personal laws and bring out one common law applicable to people of all faiths. Women, fifty per cent of the Indian population would prefer to see a gender just code related to family laws. If a UCC is at all enforced, it would be, in theory at least, able to fix the minimum legal age for marriage, abolish bigamy and resolve issues around interfaith marriages.

Prime Minister Narendra Modi, recently batting for the creation of a Uniform Civil Code (UCC), has once again opened the floodgates for the debate among different cultural and religious groups concerned on how it will impact their personal laws. This articulation by the far, Hindutva right is mired in fallacious notions of parity in ‘uniformity’ and little concerned with abolition of privilege, be it male or majoritarian.

A gender just code, if that were the aim, not “uniformity” would enable some streamlining of present laws related to marriage, divorce, adoption, inheritance, succession, and guardianship. A minimum legal age for marriage may be possible, bigamy abolished at least in law.

Adivasis across central India (Jharkand, UP and Chhattisgarh) and those from the states in India’s north-east where Schedule VI of the Constitution applies see this as an attempt to deleteriously impact their distinct cultural rights that also impact birth, marriage, custim and inheritance.

What has been less debated however is how Hindu laws still prevalent in India (inspite and despite the codification in the 1950s) will be impacted, if at all the exercise is to be non-partisan, inclusive, democratic, gender just and fair.

This article will look at this focus.

The unique legal entity, Hindu Undivided Family (HUF)

A HUF is a (legally permissible) legal entity bearing the same name as the traditional family which consists of all persons lineally descended from a common male ancestor. It consists of the karta, who is typically the eldest person or head of the family, while other family members are coparceners.  Even Jain, Buddhist, and Sikh families can have HUFs.

Income Tax Benefits and the HUF

A HUF account is very similar to an individual account. “The HUF as a tax unit is not of recent origin. This was already there in the Income Tax Act, 1922, the predecessor of the present Income Tax Act of 1961, under which also it has been continued,” said Tax and investment expert Balwant Jain.

Being a separate tax unit, it enjoys a separate tax exemption limit in addition to the various tax breaks under Sections like 80 C, 80 D, 80 DDB, 112A, etc, Jain added.

The income tax slab for HUF is the same as that for an individual, with an exemption limit of ₹2.5 lakh, in the case of the old tax regime. The HUF also qualifies for all the tax benefits under relevant sections of the Income Tax Act and enjoys exemptions with respect to capital gains. However, in the case of the new income tax regime, the exemption limit for HUF is ₹3 lakh.

Impact on HUF after implementation of UCC

If the UCC is ultimately implemented, the legal concept (and privilege enjoyed by) of HUF will have to go. According to Balwant Jain, an expert on tax, doing away with the HUF privilege may need an amendment in the Income Tax Act if no specific provisions in the UCC on the similar line as contained in the “Kerala Joint Hindu Family System (Abolition) Act, 1975″ are included. So if this union government, by no means not non-partisan effects a new “UCC” without requisite amendments to the HUF, the financial privilege enjoyed by the majority remains!  Jain also claims that once the law comes into effect, no Hindu will be entitled to claim any interest in ancestral property due to his birth in the family.

As per Balwant Jain, not only the provisions about the rights of persons taking birth after coming into force of UCC but also provisions about the existing joint family will have to be made either under the UCC or under the Income Tax Laws. Hence, if implemented, UCC is likely to affect crores of Hindu families.

So key is the question of whether the government will do away with the concept of the Hindu Undivided Family or not.

How Personal Laws Control property inheritance in India?

The Uniform Civil Code, if truly “uniform”, intends to dissolve the personal laws practised by different religions in India and replace them with common laws.

Some of the personal laws practised in India are as follows-

Hindu Personal Law: The Hindu personal laws are based on ancient customs and scriptures. While the Hindu Marriage Act 1955 governs the aspects related to marriage, the Hindu Succession Act controls the matters related to property inheritance.

Under the Hindu Succession Act of 1956, Hindu women have been given equal inheritance rights on their parents’ property. Hindu Women have equal inheritance rights on their parent’s property. The property rights of Buddhists, Sikh and Jain communities are also governed by this law.

Coparcenary

Coparcenary refers to a concept in Hindu joint family law where certain family members, typically sons, have equal rights in the ancestral property. Abolishing coparcenary would mean changing or eliminating this legal provision, which could have various impacts on Hindus, particularly those who are part of joint families or own ancestral property.

Some potential impacts that could arise from abolishing the concept/entity of Coparcenary:

Inheritance and Property Rights: Coparcenary rights provide equal inheritance rights to all male descendants of a family. Abolishing coparcenary might lead to changes in how ancestral property is inherited. This could impact the distribution of assets within families and might have social and financial implications.

Gender Equality: Historically, coparcenary rights have been limited to male descendants. Abolishing coparcenary could potentially lead to a more gender-friendly (neutral) approach to property rights and inheritance, ensuring equal rights for daughters and other female family members.

Family Dynamics: Joint family structures and property ownership patterns could undergo changes. Without coparcenary, there might be shifts in decision-making processes within families and potential fragmentation of property ownership.

Legal and Financial Planning: Individuals and families might need to reconsider their estate planning and financial strategies in the absence of coparcenary rights. This could involve creating new legal documents, wills, and trusts to manage property distribution.

Litigation and Disputes: Changes in property rights can sometimes lead to legal disputes and conflicts within families. Disagreements over property distribution might increase if coparcenary is abolished.

Social and Cultural Impact: Coparcenary is deeply rooted in Hindu family traditions and customs. Abolishing it could lead to discussions and debates about the preservation of cultural heritage versus the need for modern legal reforms.

Economic Implications: The impact on the economy could be indirect but significant. Changes in property ownership and inheritance could influence investment patterns, property markets, and wealth distribution.

It’s important to recognize that any changes to legal provisions like coparcenary would likely involve careful consideration by lawmakers, legal experts, and stakeholders, taking into account social, cultural, and economic factors. The specific impacts would depend on the details of the legal changes, the societal context, and the manner in which they are implemented.

A gender just UCC

In the wake of the Law Commission of India’s call for views on the Uniform Civil Code (UCC) from the public at large, advocacy in favour of the UCC has centred on three distinct premises:

1. a) A critique/bashing of Muslim family law, and by extension, the Muslim community as regressive, conservative, orthodox, patriarchal and resistant to change;
2. b) A projection of Hindu family law as progressive, inclusive, and gender-just, which must be emulated and extended to all communities in India; and
3. c) The UCC as an imperative for national integration and women’s equal rights in family law.

The Law Commission, in its Consultation Paper of 2018, had debunked all three premises.

In fact, the 2018 Law Commission Reeport, highlighted some positive aspects of Muslim law such as the concept of Mehr and a one-third limit for willing away property, which ensures that some property is available to the legal heirs, including daughters and other women, by succession.

The 18^th Law Commission also elaborately discussed the discriminatory aspects that continue to irk Hindu family law, and even called for the abolition of Hindu Undivided Family and the Hindu coparcenary with its right by birth in ancestral property.

The Law Commission categorically stated that secularism cannot be contradictory to pluralism and that national integration cannot be advanced through the UCC when “cultural difference informs people’s identity, and its preservation guarantees the territorial integrity of the nation.”

It prioritised gender equality within each religious community, rather than between communities, as discrimination, not difference, lies at the roots of inequality.

Given the constitutional protection and autonomy given to tribal communities in Sixth Schedule states, it also found it necessary to preserve their distinct family law systems and introduce gender-just reforms from within rather than from above.

Keeping key principles such as equality, non-discrimination, personal autonomy and agency, inclusivity, fairness and secularism at the centrality of a potential UCC, here are some aspects that a gender-just UCC could ensure.

Gender inclusivity and diversity in marriage

All family laws speak in gender binaries – man, woman, husband, wife, bridegroom, bride and so on.

Those who identify themselves beyond these binaries, within the spectrum of trans and queer identities, are excluded from the pale of current family laws. They are deprived of a legal recognition of marriage and protection of their matrimonial rights, should they choose to be governed by such laws.

In a landmark judgment in 2019, the Madurai bench of the Madras high court directed the marriage registrar to register a marriage between a cis man and a transwoman, concluding that the term ‘bride’ in the Hindu Marriage Act connotes not only cis women but also trans women. Judgments such as in the Naz Foundation and Navtej Singh Johar cases have foregrounded the importance of self-determination of gender identity.

The bundle of petitions asking for same sex marriages to be recognised in family laws of India have had their final hearings in the Supreme Court and are awaiting judgment.

In May this year, the Supreme Court of Nepal directed the government to register same sex marriages. India could take inspiration from its neighbour.

Broader definition of family

According to family laws in India, a ‘family’ consists of a couple and their minor or dependent children, towards whom they have responsibilities. In cases of a married woman, her husband’s parents are recognised as her family.

However, a heteronormative, monogamous family is a colonial concept that is highly incongruent with the varied forms of family and kinship that have traditionally and are currently in existence in India. These include maitri karaar in Gujarat, nata in Rajasthan, sambandham in Kerala, kareva or chaddar andazi in Haryana, dhuku in Jharkhand, Hijra gharanas, live-in relationships, chosen families and polyamory.

Thus ‘family’ needs to be broadened in tandem with ground realities.

Age of marriage

The statutory age of marriage maybe set at 18 (on par with the age criteria for voting, and the recognised age of majority). The moot point is the consequence of violation of the age criteria. Given that a few years ago, it was reported that 84% of 12 million married children under 10 are Hindus, if all underaged marriages are declared void or legally invalid, such a move will have adverse consequences for all children and their rights within such marriages, particularly from the Hindu community.

Conversely, the concept of ‘option of puberty’ – originating from Muslim law and now incorporated in other laws – provides agency to the underaged party to the marriage to refuse to accept the marriage upon becoming a major.

Agency in marriage and live-in relationships

Inter-religious, inter-caste, inter-class and same sex relationships are –among some– frowned upon and disapproved by the natal family; in many instances, there is collusion between the family, community leaders and vigilante groups, leading to “honour” crimes.

The law must recognise the agency and decisional autonomy of parties to marriage who have attained majority, without the need for any parental permission. The judiciary, through judgments in the cases of Arumugam Servai, Lata Singh, Shafin Jahan and Shakti Vahini, has reiterated the same.

Live-in relationships have been recognised by the Protection of Women from Domestic Violence Act (PWDVA), 2005. Partners deciding to live together without the stamp of the law is a democratic exercise that state ought not to intervene with, using the ruse of Shraddha Walkar and Nikki Yadav cases.

Status of children

There ought to be no differences in rights attributed to children born within a marriage or prolonged live-in relationships (considered legitimate), children born through transient relationships (considered illegitimate), adopted and surrogate children.

Children born in inter-caste, inter-religious or inter-class marriages should suffer no discrimination, in law or in reality.

As suggested by the Law Commission in 2018, all children must be considered legitimate and entitled to inherit property from their parents.

Guardianship and adoption

Where both parents are alive, they must both be given equal status as natural guardians, unlike the Hindu Minority and Guardianship Act, 1956, that recognises the father as the natural guardian, and after him, the mother. All parties must have an equal right to adoption. The right of single persons and persons in same sex relationships to adopt a child must be recognised, in tandem with the submission of the Delhi Commission for Protection of Child Rights to the Supreme Court.  This is because parenting depends on the capacity to and quality of care, not the gender or sexual orientation of the caregiver.

Responsibilities towards parents

All children – biological, adopted and surrogate – irrespective of their gender – must have equal responsibilities towards ensuring the physical, financial and emotional well-being of parents, recognised in law.

Grounds of divorce

Fault grounds of divorce such as cruelty, desertion and adultery, as well as a divorce by mutual consent ought to be equally available to all parties to the marriage.

In May 2023, the Supreme Court stated that it had the discretion to terminate a marriage that had broken down irretrievably, under Article 142(1) of the Indian constitution to do ‘complete justice’ to the parties. However, such a ground must be invoked with caution, after the issue of matrimonial property is settled and the wife’s economic interests secured.

Maintenance and alimony

Even though women must be encouraged to remain financially independent during the subsistence of marriage and upon its divorce, maintenance and alimony must be provided to the financially vulnerable party to the marriage or its dissolution.

Women’s unpaid housework and care work should be attributed a financial value and must be incorporated into the ascertainment of quantum of maintenance and alimony.

Abolition of restitution of conjugal rights (RCR)

The RCR is a matrimonial remedy that compels parties to marriage to live together, in recognition of the aggrieved party’s conjugal rights. This remedy, of colonial origin, was incorporated into Hindu Marriage Act and found its way into family laws governing varied communities, though it was abolished in England in 1970. Though superficially, it applies equally to the parties to marriage, it has disproportionate and adverse consequences for women who may be at the receiving end of violence, raped and unwanted pregnancies.

As stated by Andhra Pradesh high court in T.Sareetha, the woman is stripped of bodily control and autonomy through a court order of RCR. A petition challenging the constitutional validity of this remedy remains pending before the Supreme Court, but the government, in its wisdom, ought to exclude this provision in any proposed UCC, as it is inconsistent with the constitutionally guaranteed fundamental right to life with dignity.

Recognition of concept of matrimonial property

Upon the divorce or death of a party to marriage, an equitable distribution of assets acquired by parties during the subsistence of the marriage, is of prime importance. Such property maybe in the name of the earning party to the marriage, but the theory of social reproduction tells us that the contribution of non-earning party to the home facilitates such an acquisition.

No family law squarely addresses this issue, except in Goa, where too, the rights on paper are at variance with lived experiences of women. If the government is committed to gender equality within the family, it must make provisions for a matrimonial property regime.

Transfer of property by a will

In many northern and western societies, daughters are routinely compelled to sign away their ancestral property rights in favour of their brothers, through relinquishment deeds (referred to as ‘haq tyaag’ in Punjab, Haryana and Rajasthan). Such patriarchal social norms neutralise and defeat legal provisions of equal property rights to daughters.

Taking a leaf from Muslim law, which prescribes that not more than one-third of the property can be willed away, the Law Commission, in 2018, recommended that all family laws prescribe a portion that must be kept aside for dependants of the deceased person, and that the entire property cannot be willed away. The Commission also noted that persons with disabilities, especially women, are denied right to inheritance directly (excluded from wills) or indirectly (not given their share of property), which must be countered by law.

Distribution of property when there is no will

The scheme of intestate succession (when a person owns property and dies without making a valid will) is vastly different under each family law. As suggested by the LCI in 2018, based on the rule of proximity (nearness) in relation to the deceased, the scheme could be classified as follows:

Class 1 – spouse, children, children of pre-deceased children and parents of the deceased.

Class 2 – siblings, children of siblings (if the sibling is not alive) and grandparents.

Class 3 – other relatives.

All surviving Class 1 heirs would take the property entirely among them with one share each; the property would devolve on Class 2 heirs only if no Class 1 heir exists. And on Class 3 if no Class 2 heirs are alive.  This scheme should be gender neutral, and treat biological, adopted and surrogate children on par, and make no distinction between legitimate and illegitimate children.

The above list is not exhaustive, but indicative.

If we are to believe that the government has finally woken up from its slumber (just in time for the 2024 general elections), and is now determined to enact a UCC, we are in a position to decide on supporting it only when we know its contents.

While it is not easy to believe in the bona fides of a government that ignored the Law Commission’s call for gender-just reforms in family laws for five long years (2018-2023), a wish list of what a gender-just UCC could consist of has the potential to concretise and ground the discussions on UCC.

We have the responsibility to analyse the Uttarakhand UCC Bill that has just been announced (on June 30, 2023), and determine what course corrections are required for a national one, if at all.

Hindu Code Bill

Secularism, in the Nehruvian context, does not mean the separation of religion from the state but rather benevolent neutrality towards all religions, which are treated equably. However, this universalist position exists alongside effort to reduce the ascendancy of religion in society. The1950 Constitution strongly influenced by Nehru, did not recognise religious communities but only individuals, to whom it guaranteed in Article 25 ‘freedom of conscience and the right freely to profess, practice and propagate religion’. This ideal concept of religion as a private matter implied a reduction in its sphere of influence through the impact of state in its capacity as the agent of ‘modernisation’. Nehru’s principal achievement in this voluntarist perspective was undoubtedly the Hindu Code Bill.

The Hindu Code Bill was intended to provide a Civil Code in place of the body of Hindu personal law, which had been amended to only a limited extent by the British authorities. The bill was presented to the Constituent Assembly on April 9, 1948 but it caused a great deal of controversy and was subsequently broken down to three more specialised bills which came before the Lok Sabha in its 1952-7 term. The Hindu Marriage Bill outlawed polygamy and contained provisions dealing with inter caste marriages and divorce procedures; the Hindu Adoption and Maintenance Bill had as its main thrust the adoption of girls, which till then had been little practised (or accepted); the Hindu Succession Bill placed daughters on the same footing as widows and sons where the inheritance of family property was concerned.

These bills aroused strong opposition from the Hindu nationalists. In Parliament N.C. Chatterjee, the Hindu Mahasabha leader, and S.P. Mookerjee protested vehemently against what they took to be a threat to file stability and integrity of traditional forms of marriage and the family in Hindu society. However, one of the most vehement critics of the government’s proposals was Swami Karpatriji, a sanyasi who belonged to the Dandis, one of the orders founded by Shankara. He had won respect for his knowledge of Sanskrit texts, his asceticism (he had spent long periods in solitude in the Himalayas) and for his skill as an orator. It was a measure of his authority that he had been involved in the selection of the four major Shankarachryas. In 1940 he had founded the Dharma Sangh (Association of Dharma), a cultural association for the defence of traditional Hinduism. In 1941 he founded a daily paper Sanmarg. After 1948 he turned towards politics and established the Ram Rajya Parishad (Council of the Kingdom of Ram) to serve as a political party. This body organised numerous demonstrations against the Hindu Code Bill; 15,000 people, including personalities such as the Princess of Dewas Senior (a former princely state in Central India), attended a week- long conference in Delhi at the beginning of 1949.

Hindu nationalists, for their part, were particularly exasperated that the civil law reform concerned only Hindus, whereas the Constitution enjoined (in article 44 of the Directive Principles) the State to give India a uniform Civil Code: hence Mookerjee’s declaration that the “government did not dare to touch the Muslim community.” Nehru’s secularism suffered here from a certain ambiguity or at least a lacuna, doubtless due to his concern to reassure the Muslims who had chosen to remain in India. He was prepared to condone the right of civil courts to apply Muslim personal law in cases affecting Muslims.

In his view, the majority community had duties towards the minorities. As S. Gopal points out: “He urged incessantly the importance of generous treatment of the minorities so that they would feel that they were Indians, and be completely at home.’ Such an attitude could be denounced as an anti-Hindu bias while the RSS later described it as ‘pseudo-secularism’. In the early 1950s, however, the campaigns undertaken in this direction succeeded in having the Hindu Code Bill amended and the parliamentary vote delayed but failed to mobilise widespread support or even win that of the traditionalists in Congress. Rajendra Prasad, who was elected President of the Republic in 1950, was distressed by a project whose ‘new concepts and new ideas…. are not only foreign to Hindu Law but may cause disruption in every family’. He argued that the proposal for reform should first be included in the party’s election manifesto and placed before the voters before any discussion in Parliament.

Nehru had to make many concessions to the bill’s critics, including Rajendra Prasad. Although the bills which were adopted by the new Parliament in the mid-1950s were thus less far-reaching in scope than Nehru had originally intended, they were a solid testimony to his ability to impose his views on others and to defy the Hindu traditionalists.

Reforms in enactments of Hindu Law

1. Hindu Marriage Act, 1955

The aforementioned enactment itself is proof of evolution in the orthodoxy of Indian society. Marriage is considered a ‘Sanskara’ by Hindus and it cannot dissolve. The dissolution of marriage was considered an initiative against the custom.

But, section 13 in the act brought everlasting reforms and combated a persisting inequality. In 2010, the legislature attempted to bring several other changes by including sections 13C(1), 13D, and 13E in the act to make it more gender neutral and circumvent the way of patriarchy.

The bill was passed in the upper house but lapsed in the Lok Sabha. Moreover, divorce with mutual consent enshrined in section 13B of the act is an epitome of the evolution in the law.

2. The Hindu Adoption and Maintenance Act, 1956

The Personal Laws (Amendment) Act of 2010 eradicated gender bias and made a neutral provision by substituting section 8 and amending section 9 of the existing act. Subsequently, the amendment of 2010 made the concept of giving a child in adoption equivalent for both males and females.

3. The Hindu Succession Act, 1956

Hindu Succession Act of 1956 contains provisions for inheritance and succession in the coparcenary property and the self-acquired property.

Section 23 of the act contained a special provision regarding the dwelling house. The said provision disentitled a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. And, she did not possess a share in the coparcenary property. The section was repealed by the Hindu Succession (Amendment) Act, 2005.

The aftermath of the amendment was still a bone of contention as various courts interpreted the amendment’s applicability in diverted directions. Few courts considered that the act does not have a retrospective nature and hence it will only be applicable to daughters born after 2005 or whose fathers are dying by leaving a property after 2005. In Prakash vs. Phulwati  (2 SCC 38 2016), the apex court declared that the amendment of 2005 is not retrospective in nature. And, the same interpretation was reiterated in Danamma vs Amar in 2018  (3 SCC 343 2018).

Nonetheless, the apex court considered a matter of the same issue in Arunanchala Gounder (Dead) vs. Ponnuswamy and declared that the amendment of 2005 has retrospective effect. And, the Court also re-interpreted the intent of the legislature by stating that self-acquired property of males subject to Hindu religion dying intestate would devolve by inheritance instead of succession.

Moreover, reforms in daughter’s equal coparcenary right as a male heir in joint Hindu family property were brought in the case of Vineeta Sharma vs. Rakesh Sharma (4), at least judicially.

(The article has been researched by Rishi Singh an intern with the organisation)

[1] https://thewire.in/law/what-a-gender-just-uniform-civil-code-could-look-like

https://www.livemint.com/money/personal-finance/income-tax-how-uniform-civil-code-ucc-in-india-will-impact-huf-hindu-undivided-families-tax-outgo-11688106451209.html

https://www.magicbricks.com/blog/uniform-civil-code/132416.html

https://www.outlookindia.com/website/story/nehru-and-the-hindu-code-bill/221000

https://adjuvalegal.com/indian-laws/equality-reforms-in-hindu-personal-law/

The post Will a “Uniform Civil Code” abolish the Hindu Undivided Family (HUF) and coparcenary rights over ancestral property for Hindu males? appeared first on SabrangIndia.

Ahead of the Lok Sabha elections in 2024 the Modi regime has raked up the issue of Uniform Civil Code (UCC) anew. As is customary and even obligatory in a participatory democracy, the opinions of the all sections of citizens and civil society on the issue have been sought. There is a vocal (even vertical) division in the responses, one section strongly advocating “merits” of the UCC (without necessary clarity on any details of its gender dimensions), and another side pitching in with the drawback. Unlike the decades of the 1980s and 1990s when the issue was seen and protested largely through a Hindu-Muslim lens, this time the opposition has been diverse, with extremely vocal opposition also coming from India’s Adivasis and indigenous populations.

For large sections of Indians, Muslims, Christians and other minorities and even those who believe in India as a secular democratic republic, the idea behind the UCC is yet one more step towards achieving the Rashtriya Swayamsevak Sangh (RSS) aim of pushing India towards becoming a Hindu Rashtra.

Adivasis, India’s indigenous populations, already targeted and marginalised as a result of non-democratic governance, facing mass displacement are in strong opposition to the UCC. For them, the UCC is seen as yet another tool that will deprive them of the special identity guaranteed by the Constitution.

The concept of a Uniform Civil Code is included in Part IV of the Indian Constitution comprising Directive Principles of State Policy. Article 44 states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”

In the year 1973, the landmark case of Keshvananda Bharti vs State of Kerala in its judgement resonated the concept, “desirable as it is, the Government has not been able to take any effective steps towards the realisation of this goal. Obviously, no Court can compel the Government to lay down a uniform civil code even though it is essentially desirable in the interest of the integrity, and unity of the country.”

Since then, many references have been made to the “need for a UCC”. The recent development is the Law Commission’s notice on June 14, 2023 soliciting the views of the public on UCC.

The UCC envisions a common law for all citizens, regardless of faith, in the country, law that governs marriage, inheritance, divorce, adoption. Such a code is “replace” personal laws as well as laws relating to marriage, inheritance, adoption, child custody, alimony, polygamy, and succession. Many Adivasi/tribal groups fear that the implementation of such a code will violate their fundamental rights by impinging on their customs and traditions, many of which are protected by existing laws.

Serious Adivasi concerns:

• UCC will violate their fundamental rights to freedom of religion, culture and expression, which are guaranteed by the Constitution of India. Social practices among North-Eastern tribal groups differ from community to community. They fear UCC will impact their traditional system, their way of life and customs–

While the tribal community flags many concerns over the implementation of the UCC but the major one is tampering of their ethnic customs, traditions, and identity, fearing that it may damage their traditional identity and autonomy. The UCC is a proposal to replace personal laws based on scriptures and customs of each major religious community in India with a single body of rules that governs all citizens. Adivasis/Tribals in India have so far governed themselves and decided their own customs through special constitutional rights. They have their own customary laws that regulate their marriages, inheritance, property rights, etc. These laws vary from tribe to tribe and region to region and reflect their diverse traditions and beliefs.

The twin issues of UCC and “de-listing” have always been dear to the RSS. Hence, it is not unreasonable to believe that these are a ruse devised by the Sangh Parivar to undermine Adivasi culture, customs, and traditions, as well as to deprive them of their right to self-governance. Will the Adivasis survive if their culture, customs, traditions, and right to self-government are destroyed? This is the key question being raised by Adivasis.

Articles 342 (1) and (2) give the central government the authority to add or remove communities from the Scheduled Tribes (STs). Once UCC comes into force, what would be the basis for exercising this right? How would the Adivasis get the special rights they are entitled to?

• UCC will undermine their self-governance and local democracy, which are essential for their empowerment and development- The UCC has also been rejected by tribal groupings and church bodies in Meghalaya and Nagaland. Mizoram’s state assembly approved a resolution against the UCC earlier this year. Concerns about the UCC in tribal majority north-eastern states come from a fear that it may erode the constitutional protection of their autonomy in legislation regulating customs and practises. Article 371-A of the Constitution states that no parliamentary law dealing to customary laws, religious and social practises, or land transfer can apply to Nagaland unless approved by the state legislative assembly. Article 371-G contains a similar language that grants Mizoram the same autonomy over the same issues.

Adivasi groups in Jharkhand, for instance, are concerned about the UCC replacing the Chota Nagpur Tenancy Act and the Santhal Parganas Tenancy Act, both of which specifically preserve tribal land rights by preventing the transfer of tribal land to non-tribals. Similarly, the Nagaland Tribal Council (NTC) claimed that the UCC would weaken the provisions of Article 371A[i] of the Constitution, which states that no act of Parliament will apply to the state in matters pertaining to Naga religious or social practises or interfere with Naga customary laws.

In Arunachal Pradesh, community-based dispute resolution processes are deemed more democratic than what a modern-day court might do. In Arunachal Pradesh, the Adi community uses the Kebang system to settle conflicts. In the Kebang system, unlike the conventional legal system, everyone wins.

• Most tribes in India have a patrilineal line of succession– Hence the worry that non-tribal people and people of other religions may trap their women to grab land if daughters are allowed to claim father’s property.

Way forward

The 21st Law Commission addressed these concerns while declaring that a UCC was neither essential nor desirable. It did, however, urge that certain special characteristics of the Hindu inheritance and succession law be removed, which any UCC must include. It specifically called for the abolition of coparcenary property ownership as well as the concept of a Hindu Undivided Family (HUF). Abolishing coparcenary property would mean that millions of Hindus would suddenly find themselves bereft of their ancestral property shares, which would now belong entirely to the family patriarchs.

Likewise, those who have planned their taxes around the concept of a HUF would find their businesses upturned because of the abolition of this concept. Unfortunately, the 21st Law Commission did not go into the potential chaos that these moves could bring while recommending them.

Nonetheless, the UCC will have to abolish or, more outrageously, impose these practises on communities that have never practised them in the first place. In either case, it will be a formula for disaster for family-owned farms or companies.

The 21st Law Commission conducted extensive state-wide discussions before deciding that it was preferable to change each set of family laws separately rather than replace them with a single legislation. While addressing concerns about gender equity, the 21st Law Commission maintained that in the context of family laws, it was possible to maintain variety while still protecting human rights. It even included a plan for doing so.

Adivasis in central and eastern India as well as tribal populations in the north-eastern states, have not modified their minds about the UCC in the last five years. So one has to question what the 22nd Law Commission is trying to accomplish by resuming the debate at this juncture.

Likewise, the potential for economic chaos for Hindus to be triggered by the abolition of unique features of Hindu succession law should give pause to this exercise as well.

As the 21st Law Commission inferred: “…a ‘united’ nation need not necessarily have ‘uniformity’”.

(The author is an intern with www.cjp.org.in)

Footnotes

https://www.eastmojo.com/opinion/2023/07/16/how-uniform-civil-code-impacts-customary-laws-in-northeast-india/

https://www.deccanherald.com/national/explained-why-tribal-groups-are-concerned-about-the-ucc-1233840.html

https://indianexpress.com/article/political-pulse/jharkhand-governor-c-p-radhakrishnan-interview-8831225/

https://swarajyamag.com/politics/why-tribals-should-be-kept-out-of-purview-of-uniform-civil-code-ucc

Related:

The call for Uniform Civil Code is politically motivated: Flavia Agnes

The Implementation of a Uniform Civil Code

Uniform Civil Code Or Codified Personal Law?

What does the Citizens Draft of the Egalitarian Uniform Civil Code Say?

The post How just is the idea of Uniform Civil Code for India’s Adivasis and Indigenous Peoples? appeared first on SabrangIndia.

The current dispensation led by the BJP, before the upcoming parliamentary elections, has proposed to go ahead with legislating and implementing the UCC. The 22^nd Law Commission of India (LCI) has been constituted, and it has solicited proposals from the citizens, to be emailed to the Member Secretary of the LCI. Certain political-ideological forces have always been insisting upon the UCC.

Many segments of Muslims have been reacting to it in a manner as if the UCC is simply and exclusively an attack on their personal laws. As a result, responding to the 22^nd LCI, many Muslim leaders and theologians looked upon it as referendum or plebiscite on the UCC. These theologians and leaders appealed to the community to reject the UCC.

Thus, both sides (the political proponents of the UCC, as well as the opponents belonging to various ideological persuasions) have pushed ahead the politics of communal polarisation.

The Muslim side is claiming that they have submitted several lakhs of emails to the LCI rejecting UCC. Announcements from masjids in the Friday prayers were made to facilitate this, besides using social media. Though, many of such speeches from Masjids also said that in the absence of any draft proposal from the government there is really no need to panic. Also, noteworthy fact is, in 2018, against the reform in the Instant Triple Talaq (ITT), they (ie the Muslim Personal Law Board-MLPB and allied organisations) did gather around 2 crores of signatures against the proposed reform. This time it confined only to several lakhs (the figures are unverified). This may indicate a declining support for the theologians among the Muslim populace.

Collective hypocrisy of both sides of the communal divide is apparent.

It is a relatively lesser known fact (despite Reba Som’s research, MAS, 1994) that in the 1950s, the UCC was brought to the fore by the Hindu Right across political parties, just to forestall the Nehruvian reforms in Hindu Personal Law. They didn’t have the conviction to support a UCC.

Just like the Muslim regressive forces, who oppose UCC not because they hate homogeneity and love heterogeneity within the religious communities, rather, they oppose UCC just to forestall any reform in Muslim Personal Law.  These brand of Muslims think only Muslim rulers can interfere into Islam. Non-Muslim rulers cannot.

Nehru had excluded Muslims while legislating reforms in Hindu Laws using an argument that the reforms among the religious minorities would come from within themselves. That moment is yet to come, even after over seven decades. This is what has come to become one of the foremost components of allegations of Muslim appeasement by the Indian state.

In 1973, the All India Muslim Personal Law Board (AIMPLB) was established. The immediate reason was to oppose the law of child adoption amended in 1972. This amended law didn’t directly affect Muslims. Yet, they went ahead with a fierce street-level opposition. This was to demonstrate Muslim strength through identity politics and to warn the government of the day.

Let it be made clear that there is a sharp distinction between adoption and custody. In Indian secular law (Guardians and Wards Act 1890), the custody of the baby disputed between the biological and foster parents is determined keeping in mind the welfare of the baby and also the wish of the baby.

This is quite consistent with what Prophet Muhammad had done in the case of his adopted son, Zayd. The custody of Zayd continued with the Prophet as per the wishes of Zayd, despite his biological father, Harisa having come to claim him back. So far as adoption is concerned, the Quran instructs believers not to conceal the biological parentage of the adopted baby. This is often popularised as summary prohibition against adoption.

The AIMPLB refuses to issue any clarification. As a result, even the higher judiciary almost invariably adjudicates against Muslim foster parents, invoking this misinterpretation. There is no law to punish the biological parents, as to, if they, as afterthought, invoke Islamic prohibition against adoption, why did they give away their baby in adoption, to begin with?

Thus, in the case of Hindus, any signed document is accepted by the judiciary as proof of adoption, whereas, in the case of Muslims and Christians, adoption is invalidated despite such documents. Needless to say, upsetting the custody of the babies in this manner leads to psychological and overall ruination of the child’s life and career.

Fortunately, since January 2016, the Juvenile Justice Act has come into force which is of some assistance to Muslims as well. All adoptions prior to 2016 continue to be treated by the higher judiciary as per the misinterpreted Muslim law.  Recently, the Supreme Court of Pakistan even went on to validate the concealing of biological paternity. Is the Indian judiciary then, more shariat-abiding than the Islamic countries, not just Pakistan?

Likewise, on the question of Un-Quranic Instant Triple Talaq (ITT; divorce), the AIMPLB refuses to institute or initiate necessary reforms. Most of the Islamic countries have reformed this practice. Even during the infamous the Shah Bano issue, in early 1986, the AIMPLB leader Ali Miyan Nadvi (1914-1999) misleadingly persuaded the then Prime Minister Rajiv Gandhi to ignore the reforms carried out in the Islamic countries. This is admitted by Nadvi in his memoir (1988).

This fact is known to very few people that Mohammad Ahmad Khan (a rich and influential advocate of Indore), had married a cousin of his wife Shah Bano (1916-1992). After that he threw Shah Bano out of their residence when she was 62 years old. Shah Bano went to the lower court in April 1978 for maintenance. The lower court issued an interim order for maintenance. Just to avoid paying maintenance, on November 6, 1978, inside the trial court, Mr Khan pronounced ITT. Subsequently, the issue reached High Court and eventually to the Supreme Court. It was the maintenance awarded by the Supreme Court, in 1985, which was upturned by the Parliament in 1986. In its exchange, the AIMPLB delegation to the PM had agreed to go ahead with unlocking the Ayodhya Masjid.

Now coming to the law related to inheritance of parent’s assets.

In the 1930s, when the Shariat law was being codified, a daughter of the landed, powerful family of Sikandar Hayat Khan Tiwana, the Premier of the undivided Punjab asked for her right in landed properties as per the Sharia law. Tiwana, in order to find ways of denying this demand to the woman, approached Jinnah to shelve the Shariat codification. Jinnah came out with outrageously manipulative and dishonest arguments: Firstly, the local customs are laws, hence, the custom of not letting daughters inherit the landed property would continue, despite the Shariat law; Secondly, agriculture and land are provincial subjects whereas the Shariat Act would be a subject of central legislature.

In 1937, M A Jinnah piloted the Shariat Act, seeing in this an opportunity to forge an all India Muslim political constituency to pursue his separatist politics. We are yet to know, if Maulana Azad, Maulana Husain Madani of the Muttahidah Qaumiyat fame, and even Maulana Maududi really said anything on the Shariat Act 1937.

In 1962, Jinnah’s Pakistan introduced some reforms in the family laws, such as: ITT was prohibited; justifiable and proportionate to the economic status of the husband, amount of alimony had to be paid to the divorced woman; polygamy was restricted to the extent of almost prohibition. Without a written consent of the existing wife, another wife cannot be brought into marriage; minimum marriageable age was also raised, etc. Yet, in 1986, in India, the Ulema and other leaders went on to ruin the likes of Shah Bano. They still continue to do so quite shamelessly.

The latest criminalisation of the ITT by the current dispensation, in 2019, is acting as very good deterrence against ITT. But, the issue of maintenance to the separated woman, and adequate or proportionate alimony to the divorced women still remain unresolved.

The Union government should therefore make it explicit and categorical that the Cr PC Section 125 shall remain enforceable for the divorced Muslim women while seeking maintenance and alimony. Let it be known that, in early 1986, while negotiating with the Prime Minister, the delegation led by Ali Miyan Nadvi had promised that they will make some institutional arrangement to extend financial help to the divorced women having been denied maintenance ad alimony. This promise is recorded very clearly in the Urdu memoir (1988), Karwan-e-Zindagi, vol. three, chapter four. This promise has been chosen to be forgotten by the Ulema, intelligentsia and the community. Already, Muslim men have found a way around the restriction on ITT —torture wife to give khula.

In 2018, the spokesperson of the AIMPLB issued a statement that they will issue a model nikahnama inserting a column for pledge from the bridegroom not to go for ITT (Times of India, Lucknow, February 3, 2018). Within a week’s time, in the 26^th Plenary Session of the AIMPLB (in Hyderabad, 9-11 February, 2018), the AIMPLB conveniently chose to shelve the idea. Both the governments and intelligentsia need to expose the abovementioned duplicities of the segments of Muslim leadership.

It is distressing that even the modern institutions funded by the secular state of India, such as the AMU, Jamia Millia Islamia (New Delhi), MANU University (Hyderabad), and their departments of studies such gender and women studies, Islamic studies, theology, law, social sciences, etc., have not been able to pursue a reformist agenda. Quite a lot of them have either maintained a dishonest silence or have endorsed the regressive positions. Both ways, they are on the regressive side. This is extremely disgusting, to say the least.

There has to be a compulsory registration of marriages, divorces, besides the registration of birth and death.

While the grandfather is alive, if someone loses his/her father, then s/he forfeits his/her right to inherit the grandfather’s assets. This law also needs to be done away with by the Indian legislature.

Muslim parents who have only daughters — if don’t transfer their assets while they are alive—stand to pass down only a portion of the father’s assets to the daughter/s. Even a will registered in a court of law to the contrary will not enable this inheritance, as per existing Indian Muslim personal law. Owing to this discriminatory law, some Muslims have begun to re-register their marriages under the Special Marriages Act.

Also, some Muslim daughters have begun to challenge this discrimination in the Supreme Court.

Muslim parents having no kids, cannot even register a will in the court of law bequeathing all their assets. As per the Muslim law, they can bequeath only a third of their own assets to anyone.

The Supreme Court, despite Hindu Law having contrarian provisions, has given verdicts ensuring equal rights to inherit parental assets by daughters and sons. This right to gender justice must be made to prevail in the case of Muslims as well.

By way of conclusion, historically speaking, without the state’s backing, hardly has any reform taken place or allowed to prevail. During colonial period as well, reforms on abolition of Sati (1829), Widow Remarriage (1856), law against child marriage, etc., happened only with state-backing.

People need to tell the current dispensation that it needs to go beyond electoral gimmicks, and implement the abovementioned seven aspects of family law reforms (including gender-just laws). Meanwhile, a draft UCC should be prepared for wider debate. (Sadly, at the moment, they too, are shelving family law reforms, in the name of opposing the UCC). The personal law reforms cannot wait. The UCC can and should await proper and participative deliberations. This is something even the Liberal-Left should also try to understand. That is the way ahead and the only way to avoid competitive communal polarization.

Related:

IMSD supports a religion-neutral, gender-just UCC

The call for Uniform Civil Code is politically motivated: Flavia Agnes

The Implementation of a Uniform Civil Code

Uniform Civil Code Or Codified Personal Law?

In Case of a Uniform Civil Code, How Should Muslims Respond?

The post On UCC, personal law reform & the politics of competitive communalism appeared first on SabrangIndia.

The post Muslim Women’s Quest for Gender-Just Laws appeared first on SabrangIndia.

In an online interview with the author, Prof. Xaxa said that the generalised [uniform]  laws imposed from the top had negatively affected the Adivasi society, eroding their customary practices and taking away their resources. Instead of such laws, he supported the policy of respecting cultural diversity and ensuring the vulnerable groups their rights enshrined in the Indian Constitution.

Elaborating on this issue, Prof Xaxa said the need of the hour was to protect the Adivasi identity and defend their interests. He argued the imposition of uniformity was not desirable.

Prof Xaxa, who taught sociology at several prestigious educational institutes before his retirement, said that the uniform laws were justified in the name of the larger public good, but they resulted in nullifying some of the protective provisions,which were given to the Adivasi community by the Constitution. “The generalized laws have been detrimental to the Adivasis”, he added.

Former deputy director of Tata Institute of Social Sciences (Guwahati), Prof. Xaxa, therefore, opposed the imposition of uniformity. He expressed disappointment that the discourse on the uniform civil code was being carried out without seeking the informed consent of the people, particularly those who were the most vulnerable and disadvantaged.

Prof. Xaxa, who worked extensively on the lives of Adivasis, criticized the Government for not placing the report of the 21st Law Commission before the larger public. As a result, the citizens were not facilitated to have informed ideas about the subject.

He called it “unfortunate” that the discourse of the UCC was being held “in a vacuum.” without any preparation by the Government. He, therefore, expressed concern that such a policy might affect religious minorities negatively and adversely impact the Adivasi community as well.

(Dr. Abhay Kumar is an independent journalist. He has taught political science at the Non-Collegiate Women’s Education Board of Delhi University. Email: debatingissues@gmail.com)

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• Millions of believing, practising Muslims today are citizens of western democracies where there are no separate family laws for Muslims.

• IMSD calls upon secular political parties not to fall in the trap set by the BJP.
  

Indian Muslims for Secular Democracy (IMSD) supports Article 44 of the Indian Constitution (Directive Principles of State Policy) which postulates, “The State shall endeavor to secure for all citizens a uniform civil code (UCC) throughout the territory of India”.

This is consistent with the Fundamental Rights guaranteed to all citizens under Articles 14 (equality before the law) and 15 (non-discrimination on grounds of religion, caste, sex….) of the Constitution.

In our view a bonafide endeavour must mean encouragement of nationwide discussion and deliberation on the issue aimed at evolving a national consensus and not imposing the codes of any one religion, culture, tradition on all others. In all such endeavours ensuring gender justice must be the prime concern.

In its report published in 2018, the 21^st Law Commission had opined that a UCC was “neither necessary nor desirable at this stage”. But the 22^nd Law Commission has reignited the issue by inviting the views of the public at large and religious organisations on UCC. Curiously enough, the Commission has not offered any draft of its own for the people to respond to.

The timing of the initiative, the absence of a draft and the fact that the next general elections are less than a year away have understandably led to apprehensions that the motive of the Modi-led government is suspect. This notwithstanding, IMSD calls upon secular political parties not to fall in the trap set by the BJP.

As usual, Muslim religious bodies including the All India Muslim Personal Law Board (AIMPLB), the Jamiat ulema-e-Hind and the Jamaat-e-Islami Hind have promptly opposed the move calling it “an attempt at polarisation and a diversionary tactic by the government”. According to them, “The proposal is totally against the religious freedom and Fundamental Rights given to the citizens under Articles 25 and 26 of the Constitution”.

What the ulema wilfully ignore is that Article 25 concerning the right to freedom of religion also states, “Nothing in this article shall… prevent the State from making any law “providing for social welfare and reform…”

The personal laws of all religious communities that we inherited at independence were grossly discriminatory against women. In the decades since, there have been a number of enactments ushering in some reforms in the family laws concerning Hindus and Christians. But Muslim religious bodies have staunchly resisted any change, never taken a single step in reforming Muslim Personal Law many of whose provisions are blatantly unjust, anti-women, even un-Quranic.

Contrary to the false claims of the Indian ulema, Muslim Personal Law is not God-given but man made. Millions of believing, practising Muslims today are citizens of western democracies where there are no separate family laws for Muslims. In recent decades, a large and growing number of Muslim countries, including some which call themselves Islamic states, have reformed their family laws. Yet, ironically, in secular India the ulema continue to cling to medieval, patriarchal notions of gender relations in the name of protecting Islam. What they are in fact protecting is simply their own interest and their institutional stranglehold over the community.

The Congress and other secular parties have taken no initiative whatsoever in advocating reforms on the specious plea that “the initiative must come from within the community”.  Given the authority structure within the Muslim society, we do not see any such voice from the community in the foreseeable future.

Having lost all hope in their religious leaders ever accepting, let alone initiating change, progressive Muslim women and men have no option but to look to the courts and the government of the day for a religion-neutral, gender-just UCC. Needless to say, a ‘Uniform Civil Code’ is not the same as a ‘Common Civil Code’. Muslims reserve the right to protest against any attempt to impose a majoritarian agenda in the name of uniformity. We therefore appeal to all political parties to see this issue as one of gender justice and stop pandering to the whimsical and antediluvian fantasies of religious clerics.

Among others, IMSD calls for the following reforms to be part of a uniform code applicable to all citizens: divorce only through a court of law including the right of women to initiate divorce, right to judicious maintenance following severance of the marital tie, ban on polygamy and the shameful halala practice, gender-just inheritance and guardianship laws, right to make a will with provision for a minimum percentage of the property to be left behind for heirs, child custody to be based on what is in the best interests of the minor, right to adopt by couples or even by single women or men, “right to marry… without any limitation due to race, nationality or religion” (Article 16 of the United Nations Universal Declaration of Human Rights).

IMSD would also like inclusion of certain positive aspects of Muslim family law. For example: irretrievable breakdown of marriage to be included among grounds for divorce, women’s right to retain her own maiden name and identity after marriage.

Issued on behalf of Indian Muslims for Secular Democracy by:

Javed Anand (Convener)

1. J. Jawad (Co-convener)

Arshad Alam (Co-convener)

Feroze Mithiborwala (Co-convener)

Irfan Engineer (Co-convener)

Nasreen Contractor (Co-convener)

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