What a progressive Uniform Civil Code can do for India
When the Constitution was being drafted, its framers debated greatly on whether a newly independent India was ready for a Uniform Civil Code (UCC). It was soon realised that a UCC could not be imposed on Indian citizens at the time.
Naziruddin Ahmad, a Muslim representative from Bengal, suggested that it could be imposed gradually and with the consent of the citizens. It was decided by the framers to include an article on UCC and thus article 44 in the Indian Constitution came into being as a part of "Directive Principles of State Policy". It states that "the State shall endeavour to secure for citizens a uniform civil code throughout the territory of India". It was also felt that the people of the country then, still grappling with the Partition and riots, were not ready to give up their personal laws and follow a new uniform code.
The UCC would propose to replace all personal laws with codified laws pertaining to subject matters such as marriage, divorce, succession, adoption et al - essentially, all existing codified and non-codified customary laws.
Every few years, the debate surrounding the UCC gets reignited. A five-judge bench in Shah Bano's case noted that article 44 has remained a "dead letter" and that it is ultimately the duty of the State, which has the legislative competence, to enact a UCC.
Since then, not much progress has been made on the law. It was in the year 2014, when the BJP, in its election manifesto, included the introduction of UCC as one of its agendas and it was in 2016 that the government asked the law commission to submit a report on the implementation of UCC.
The chairman of the law commission, Justice (retd) BS Chauhan, invited people from various religious groups to submit their responses and comments. The most recent draft for a UCC - submitted to the law commission - is called "Progressive Uniform Civil Code". The preamble to the draft, prepared by a group of citizens from various sections of the society, such as lawyers, journalists and activists, states that it is in line with the globally accepted values of human rights.
The draft's most striking feature is that it tries to propose a set of laws that would have equal applicability irrespective of gender (including the third gender), sexuality and religious beliefs (including atheists and agnostics). This draft proposes that marriage - besides the conventional definition of a union between man and woman - should also mean a legal union between two men, two women, two transgenders and between a transgender and a man or a woman.
The draft includes the definition of a "partnership" as living together even without marriage. In both these cases, the endeavour has been to envision equal rights for both partners. With respect to property rights, it envisions that children will have equal share in the property of parents even if they are adopted - and irrespective of their gender, religion, sexual orientation etc. The code gives rights to married couples and those who are in partnerships to legally adopt a child. There is no bar to adopt due to the sexual orientation of the couple or because they are not married. Other controversial aspects that the draft touches upon are dissolution of Hindu Undivided Family (HUF) and personal laws.
The idea of implementing a UCC seems to be a step forward in the direction of achieving a more equal society, something that was envisaged by the framers of the Constitution. Minority leaders at the time of Independence were open to it. However, it was stressed that such a code should be brought in gradually with "caution and sympathy" - two attributes the present government seems to be lacking.
There is a legitimate apprehension that the attempt to bring in the UCC is just another exercise to impose a majoritarian way of life. This draft code is by far the most progressive and fair law that the author has seen, but before it can be implemented, attempts must be made to educate the masses about its benefits; to gradually and uniformly remove laws and provisions that benefit one particular community and not the others, so as to remove any apprehension of being subjected to laws that are favourable to the majority.
There may be oppositions from all communities if a push for UCC is given - understandably so - because it many prove unfavourable for some sections of the community. Interestingly, in the conclusive paras of the Shah Bano judgment, the court took note of a statement by a counsel: "Legislative competence is one thing, the political courage to use that competence is quite another."
The need of the hour is to gradually pave the way for the implementation of a law that has the potential to cause a huge amount of unrest. This can be done if the government takes measures to sensitise and educate people about the benefits of the implementing the UCC - provided in clause 10 of the draft Progressive UCC.
What remains to be seen is whether the country is ready for such a drastic change - and if the government is ready to implement a UCC without political bias.