Context

The Uttarakhand High Court has issued a 6–week notice to the State government and the Centre to file their responses to the petitions challenging the provisions of the Uttarakhand Uniform Civil Code (UCC). Further, in a move to provide temporary relief, the Uttarakhand High Court has asked the affected individuals to approach the court in cases of penal actions, as reported by LiveLaw.

On January 27, 2025, Uttarakhand became the first Indian state to implement a Uniform Civil Code (UCC). However, the law has come under the scrutiny of the Uttarakhand High Court as a result of various writ petitions filed challenging multiple provisions of the UCC. The law makes it mandatory for individuals in live–in relationships to register their relationship with the registrar within whose jurisdiction they reside. Further, the law deliberately targets the minority communities, such as Muslims, and prescribes procedures to be followed in religious matters which is completely contrary to the holy Quran.

For a more comprehensive understanding of the provisions challenged in the impugned UCC, the article published by CJP may be referred to.

Challenges to provisions governing live–in relationships

The mandatory registration of live–in relationships and the penal provisions for non–compliance of the same have been challenged before the High Court. The petitioners have contended that these provisions are against the Fundamental Right to privacy protected under Article 21 of the Constitution of India. While addressing these contentions, Solicitor General (SG) Tushar Mehta appearing for the Government mentioned that “Experience has shown that having lived in live–in relationships without any commitment – which results from marriage only – generally, the man deserts the woman, leaving her destitute and leaving the children born out of such relationships illegitimate.” He further argued that the law aims to regulate live–in relationships, not prohibit the same while stating that “On such a registration, the child born out of such a live–in relationship is considered under the UCC to be a legitimate child, and the deserted woman is given a right to approach the competent court seeking maintenance for herself and her child,” as reported by the Times of India.

While hearing the batch of petitions, Chief Justice of the Uttarakhand High Court G Narendar questioned as to what the problem is with regulating live–in relationships while orally remarking that “There is also a fallout of this. What happens if this relationship breaks up? What if there is a child out of this relationship? In respect of marriage, there is a presumption regarding paternity but in a live-in relationship, where is that presumption? In the garb of invasion of your privacy, can the self-respect of another person be sacrificed, that too when he is your child and there is no proof of marriage… or paternity,” as reported by the Indian Express.

This debate underscores the necessity of striking a balance between the fundamental right to privacy and protecting the rights of children born out of live–in relationships and providing recognition to them.

Targeting minorities

The law has come under heavy criticism for particularly targeting religious minority communities, such as Muslims. The petitioners have contended that the UCC significantly impacts the Muslim community as it prescribes procedures to be followed which are completely against the principles laid down in the Quran. The petitioners argued that “We have pleaded before the court that the law prescribed in the Quran and its verses is an essential religious practice for every Muslim. UCC prescribes the procedure for religious matters which is absolutely contrary to the verses of the Quran. We have pleaded that to remain a Muslim, a person has to follow the Quran and its Verses.” The petitioners have further stated that “following the verses of the Quran is a mandatory practice for a Muslim and by making a civil law, the state government cannot direct a Muslim person to do anything which is contrary to the verses of Quran,” as reported by the Hindustan Times.

The petitioners cited that by banning the mandatory practice of Iddat that is followed by a divorced Muslim woman, the UCC violates the religious practice of Muslims. The petitioners have further contended that these provisions of the impugned law violate Article 25 of the Constitution of India which protects the freedom of practice and profession of religion. It has also been argued by the petitioners that the UCC is violative of the Preamble of the Indian Constitution as the liberty of expression, belief, faith and worship have been guaranteed under the Preamble.

It should be noted here that while the basis for the Uttarakhand UCC is Article 44 (Uniform civil code for the citizens), which is only a directive principle and not binding and non–justiciable in nature, Articles 25 (Freedom of conscience and free profession, practice and propagation of religion), 26 (Freedom to manage religious affairs) and 29 (Protection of interests of minorities) which guarantee freedom of religion have been blatantly ignored. The petitioners have contended that the impugned law strikes at the fundamental principle of Secularism that has been provided in the Constitution of India

The petition also stresses that the impugned law is not Uniform as it excludes the Scheduled Tribes from its purview. The petitioners have argued that the UCC creates “an arbitrary and artificial discrimination, impermissible in law, amongst citizens by not applying it to the Scheduled Tribes” and that such UCC “is not a Uniform Civil Code as directed under Article 44 of the Constitution of India, hence, deserves to be declared void.”

Restrictions on marriage

The list of “prohibited relationships” provided in the UCC has also been challenged by the Petitioners on the grounds that not only do the impugned provisions hinder the Muslims’ right to marry but also declares such marriage void and criminalizes the same. The petitioners have argued that the impugned legislation is “discriminatory in nature since it takes away the customs and usage of the Muslim community by providing for restrictions to marry in ‘degrees of prohibited relationship’ as defined in the UCC.” The petitioners further contended that such restrictions do not exist in the Muslim community and that marriage among relatives is permitted as per the Muslim law.

Conclusion

In conclusion, significant constitutional debates have been sparked by the Uttarakhand High Court’s assessment of the state’s proposed Uniform Civil Code (UCC). Privacy, religious freedom, and equal protection under the law are among the issues raised by the forced registration of live-in relationships, the purported targeting of religious minorities, and limitations on marital customs. The problem is further complicated by the Scheduled Tribes’ exclusion and the possibility of the UCC’s extraterritorial application. The High Court’s decision will be a turning point in determining how to strike a balance between individual laws, cultural autonomy, and the movement for a uniform civil framework, since Uttarakhand’s transition to a UCC is unprecedented in India.

(The legal research team of CJP consists of lawyers and interns; this legal resource has been worked on by Yukta Adha)

Related:

The Uniform Civil Code (UCC) of Uttarakhand: Advancement in gender justice or violating individual liberties?

Destroying the basic standards of legislation- the Uttarakhand Model of UCC

Uttarakhand’s UCC seen through a Muslim women’s political perspective

The post Petitions against Uttarakhand UCC draw attention to Constitutional issues regarding personal autonomy and minority rights appeared first on SabrangIndia.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arshad Alam is a Delhi based independent researcher and writer.

The post Why Muslims Should Debate the UCC appeared first on SabrangIndia.

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

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

Destroying the Basic Standards of Legislation

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

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

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

Examining the UCC through Legal Jurisprudence

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

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

Implications for Statecraft and Policy

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

Unique Law that Regulates Personal Freedom

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

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

Threat to Constitutional Values

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

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

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

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

Conclusion

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

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

Related:

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

Uttarakhand state assembly tables UCC Bill amidst protests by opposition members

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