Centre’s denial of the rich debate on Uniform Civil Code exposes its hypocrisy, as revealed by its latest affidavit before Delhi HC

Retaining uniform civil code as an electoral promise rather than confronting its criticisms perhaps serves a convenient purpose for the union government. It is pitched as a liberal aspiration without ever labouring over the content of the directive. It is also ironic that arguments for 'national unity' ostensibly brought about by a uniform civil code are being argued for by political actors who remain deeply complicit in spreading communal disharmony, writes DR. SAUMYA SAXENA.

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THE vexed debate on a Uniform Civil Code [UCC] predictably picks up around election time. The issue ties up conversations on women's rights, secularism and national integration in a single albeit unconvincing narrative. National unity is emphasised vociferously by those who often carry a record of hate speech against religious minorities and remain chiefly responsible for provoking religious conflict. Women's rights are spoken of, often not by women themselves. And secularism remains elastic in these debates; it could be invoked as a protection for minority rights to oppose a universal code and simultaneously be the vocabulary by which religious diversity is opposed. The constitutional commitment to a UCC is therefore impossible to comprehend as a 'neutral' law or policy in the absence of the political context in which it is summoned.

The Centre's affidavit before the Delhi High Court replying to advocate and Bharatiya Janta Party leader Ashwini Upadhyay's petition evidences the sheer lack of clarity on what a potential UCC entails, for both parties involved here. There is now another petition that seeks the transfer of all such petitions to the Supreme Court from the High Court. The Centre, instead, seeks that the petition be forwarded to Parliament, but pins all its future plans on a report awaited from the Law Commission of India. A report which was supplied in 2018 as a consultation paper by the Law Commission and was not relied upon before the enactment of the Muslim Women's Protection of Rights on Marriage Act, 2019. It continues to be disregarded in any debate on a UCC.

Also read: Centre opposes PIL seeking enactment of UCC before Delhi HC, experts hail its stand

Law Commission reports ignored

The Commission in its paper had concluded that instead of a uniform code that applies to all communities, piecemeal reforms through codification of personal law may be a far more effective way to deal with inequalities within communities. The most oft-quoted line of the report that "a uniform civil code is neither necessary nor desirable", is a fairly unambiguous rejection of the idea of a UCC by the Commission. The Centre, however, continues to pass the buck to the Commission, even as the union law ministry hesitates to appoint the 22^nd Commission after the 21^st Commission, in multiple reports and papers, had concluded decidedly against government promises.

The Law Commissions have historically responded to legislative, judicial and even civil society concerns and attempted to translate, with very limited success, social demands to the legal register. It is for the first time in Independent India's history that a Law Commission has simply not been constituted for years on end (since August 2018), perhaps for not toeing the government line.

A law against hate speech, for instance, which would now have been able to convict the increasingly common speeches of majoritarian hate propagandists, was also considered by the 21^st Commission. It further produced a 'consultation paper' that critiqued sedition – a law which remains incompatible with democracy.

Commissions have periodically critiqued existing legislation or provided a blueprint for fresh interventions, often calling out many agencies of the State for inaction or ineffectiveness. For example, in the aftermath of the Mathura case in 1970s, the Law Commission of India proposed amendments to law against sexual violence against women and widened the definition of rape.

Similarly, reports in the past have considered revisions to Hindu succession and inheritance laws and even forwarded bills on irretrievable breakdown of marriage. The latter even made it to parliament but was dropped due to pressures from men's rights groups and the general disdain that the State shows towards simplifying divorce procedures. The consultation paper on reform of family law by the last Commission also carried multiple suggestions on amending inheritance laws for Muslims and Parsis to give women equal access to ancestral and matrimonial property. Further, it also recommended additional grounds for divorce in Hindu Marriage Laws and also sought simplified procedures for registration of marriages under the Special Marriage Act.

The Justice J.S. Verma Committee too, among other recommendations, sought the removal or marital rape exception and the introduction of sex education in middle school, among other things. It stopped short of recommending a UCC because in multiple consultations held by the Committee, women did not see a direct link between legal uniformity and access to justice, or empowerment. The new petitions seeking UCC before the Delhi High Court must therefore be assessed in light of the fact that the primary stakeholders in the debate – women – have not filed these.

Upadhyay's petition, his presentation before the Law Commission of India as well as his multiple letters to the Prime Minister carried similar text and almost no legal value. Some unreferenced quotes from the Constituent Assembly Debates and unrelated judgements formed the bulk of his petition with the ultimate prayer being that the judiciary perform the legislative function of creating a uniform law for divorce.

Incidentally, Upadhyay was allegedly seen raising anti-Muslim slogans at a rally, confirming the frivolity of his 'concerned' petitions for the rights of Muslim women. He was also present at the recent religious assembly at Haridwar that practically called for a Muslim genocide. He continued to file fresh petitions or join petitions of Muslim women against various practices under Muslim personal law such as nikah halala and bigamy, and this caused some women's organisations to distance themselves from such petitions or altogether withdraw their own petitions lest they be clubbed with Upadhyay.

Judiciary's position on UCC

The Central government's response to his plea is an equally redundant affidavit, carelessly authored without much consideration for the debate that has already occurred. While what Upadhyay seeks, is certainly a legislative prerogative, the courts on many occasions have intervened in matters of personal law. Historically, personal law has witnessed multiple court interventions and interpretations of Muslim personal law in particular have evolved primarily through court judgements.

From Bai Tahira (1978) and Fazlunbi (1980) to Shah Bano (1985), the judiciary has been confirming maintenance for divorced women under Section 125 of the Criminal Procedure Code. Subsequently, the Muslim Women's (Protection of Rights on Divorce) Act, 1986 (MWPRDA) and the Danial Latifi (2001) judgement also upheld a woman's right to maintenance for life. Shabana Bano (2009) further confirmed that Muslim women could access section 125 as well as the MWPRDA.

Also Read: Uniform civil code should not meddle with articles of faith

In Shamim Ara (2002), the Supreme Court had observed against triple talaq. The Kerala High Court for instance, has recently pronounced that khula – as a form of divorce initiated by women – should have legal validity as well as a provision for maintenance under the Dissolution of Muslim Marriages Act, 1939. Many such observations only confirm procedures that long existed in non-State adjudication of personal law. Women's organisations have negotiated multiple khulas for women in alternative dispute resolution forums. Courts, in fact, have even confirmed quick divorces acquired customarily under Hindu traditions as the case was in Rameshchandra Rampratapji Daga vs. Rameshwari Rameshchandra Daga (2004). On many occasions, courts overruled the six-month period of waiting in a divorce acquired through mutual consent.

The court draws its own boundaries in what it recognises as judicial overreach. For instance, it had concluded in the Ahmedabad Women's Action Group (1997) judgement that the "remedy lies somewhere else and not by knocking at the doors of the Courts," for what it saw as legislative prerogative. Thus, the Court has continued to contain its enthusiasm for a UCC in observations rather than in the operative parts of its verdicts, while maintaining a free hand in assessing individual practices within religious personal laws.

Why legislation needs a deeper consideration

So far as the legislative intervention on a UCC is concerned, there is now much evidence to suggest that amendments to individual personal law yield greater compliance by communities, and therefore have potentially greater impact and effectiveness. The repeated iteration of the UCC in Goa being a good functional example has been disproven on multiple occasions as the code continues to carry major infirmities for women.

The Special Marriage Act, also pitched as a potential template for the UCC, has remained a complex and difficult law for consenting couples to access. The registration prioritises 'honour' of families and guardians and values their consent over a couple's own choices. It is for this reason that increasing the age of marriage for women also remains suspect, as it does not necessarily guarantee that twenty-one-year-old women's choice of partners would be any better protected.

Also Read:What did the Constituent Assembly say on the Uniform Civil Code?

While a common age for men and women for marriage would be a welcome move, since it does not presuppose an older-male-led household and generally dismantles age hierarchies in marriage, the age could have been uniformly reduced than raised. Incidentally, this was also suggested by the 21^st Law Commission in its 2018 consultation paper, as a measure for introducing greater equality in marriage. This discussion saw little consideration by Parliament, and the parliamentary committee on age of marriage had only one woman member as representative, once again betraying the lack of women's agency in determining laws that are meant seemingly for their benefit.

The convenience of UCC as an electoral promise

One of the reasons why government periodically promotes UCC as an electoral promise and shies away from an active intervention is not because their exaggerated focus on a potential backlash over Muslim personal law but also because the real opposition to such a code would likely come from the North-East, where a number of exceptions to family law (inheritance, succession as well as divorce procedures) have been granted as special protections under the Sixth Schedule of the constitution. Many of these 'exceptional' laws, in fact, remain relatively more progressive than codified personal law. India's territorial integrity to a great degree rests precisely on acceptance of regional diversity, and thus the union government must answer some difficult questions on what a UCC will actually entail.

Also read: The Tinderbox of the Uniform Civil Code and Gender Equality in Islam

Thus, retaining UCC as an electoral promise rather than confronting its criticisms perhaps serves a convenient purpose for the government. It is pitched as a liberal aspiration without ever labouring over the content of the directive. It is also ironic that arguments for 'national unity' ostensibly brought about by a UCC are being argued for by political actors who remain deeply complicit in spreading communal disharmony. Moreover, if the Centre must throw its weight behind a UCC it must also clarify if such a code will cover same sex partnerships and protections for live-in relationships. It must answer why it remains hesitant to remove the marital rape exception, even as it reiterates a commitment to women's rights in conversations over a UCC.

'Women' have become a convenient pitch for a UCC, but women's voices have historically been overlooked in matters concerning their own fate. The women's movement itself has been divided on the question, with no agreement on UCC's potential benefits, if any. The law has only been a sporadic ally of the movement, and it is now well acknowledged in scholarship as well as in practice that legal interventions can both yield and harm. For every good report, judgement or legislation, there are examples of interventions that have gone horribly wrong. In the last decade the courts have authored some promising verdicts: setting aside triple talaq, allowing women's entry into Sabarimala temple, and protecting Hadiya's right to cohabit with a partner of her own choosing.

But for every progressive judgement, we have also witnessed courts concluding that a 'feeble no is a yes' in cases of sexual assault, or that separating a married man from his parental house amounts to 'cruelty', while the same for the woman is simply tradition. Same applies to legislative interventions as we witness parliamentarians cling to marital rape exception on the pretext that criminalising it would lead to broken marriages, even as it proceeded to criminalise triple talaq – instead of simply deeming it invalid, which would also have allowed marriages to subsist. Such legal interventions only serve to enhance State capacity to punish rather than providing any genuine entitlement to women. Therefore, using gender or 'women' as an entry point in all debates on UCC cannot simply be a convenient trope for the Centre, which refuses to acknowledge the complex debate on the matter over the years, documented by women themselves.

(Dr Saumya Saxena is a British Academy Postdoctoral Fellow at the Faculty of History, University of Cambridge. The views expressed are personal.)