Earlier this month, a member of the ruling Bharatiya Janata Party (BJP) introduced a bill in the upper house (Rajya Sabha) of Parliament to form a committee that would draft and enact a uniform civil code (UCC) throughout India.
Article 44 of the Indian Constitution states that “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Nonetheless, a UCC is one of the most controversial issues in Indian politics because it is seen by many minorities and opposition parties as a vehicle for Hindu majoritarianism, one that would “demolish minority identities and rights.” It would abolish separate personal laws — matters related to marriage, divorce, alimony, inheritance, and adoption — for members of different religions.
These laws are governed by different acts such as The Hindu Marriage Act, 1955; Hindu Succession Act, 1956; the Indian Christian Marriage Act, 1872; and Muslim Personal Law (Shariat) Application Act, 1937. These separate laws have practical effects; for example, Indian Muslim men may take up to four wives, but Hindu men can only marry one. Hindu women may inherit an equal share of property as their male siblings, but Muslim women can only inherit half of what their male relatives do. Proponents of a UCC see it as a means of addressing discrimination, sexism, and inequality.
The roots of legal pluralism in India go back to the Mughal and British eras, where different religious communities were permitted to retain their own civil laws. The British retained and further codified the Mughal practice of allowing different communities to look after their own affairs.
A similar system, the millet system, prevailed in the Ottoman Empire because in Islamic thought, different communities were entitled to follow their own customs. Modern Israel, which used to be part of the Ottoman Empire, is similar to India in that it retains separate personal laws for its religious communities.
However, most countries in the world have uniform civil codes, or in the case of common law countries such as the United States, the same laws concerning personal matters apply to all individuals within a jurisdiction. The creation of a uniform civil code was seen as a hallmark of modernity by non-Western countries, and most adopted such codes in the 19th and 20th centuries, such as the 1896 Civil Code of Japan and the 1926 Turkish Civil Code. Several Muslim-majority countries, such as Turkey, Tunisia, and Azerbaijan, have uniform civil codes. These codes abolished legal distinctions between separate socioeconomic, ethnic, and religious classes of people.
This principle influenced the authors of India’s constitution, such as Bhimrao Ramji Ambedkar. who said: “I personally do not understand why religion should be given this vast, expansive jurisdiction, so as to cover the whole of life and to prevent the legislature from encroaching upon that field.” However, it proved difficult to gain the support of any community for reform, particularly the Muslim community, who sought to preserve their distinct customs. India’s first prime minister, the Congress Party’s Jawaharlal Nehru struggled to get Hindus to agree to a reformed personal code based not on the Hindu shastras, but mostly on Western principles. Updated Hindu personal codes were passed in 1955-1956, but Muslim and Christian law remained the same, leading to resentment on the part of Hindu nationalists.
It is somewhat ironic, then, that the Hindu nationalists who so opposed the reform of Hindu personal law are today the modernizers pushing for uniform laws. On the one hand, this is why most opposition parties in India are wary of a UCC. On the other hand, this is testimony to the power of the law in fostering more modern attitudes toward personal matters.
The perfect should not be the enemy of the good; regardless of the motives for enacting such a bill, a modern-day UCC would not impose Hindu law on the entire population, but a single set of secular personal laws for everyone, even if they are in contradiction to both the Hindu shastras and the Muslim shariah. For this reason, both the Muslim religious establishment and even some Hindus who do not wish to further modernize Hindu law oppose the UCC. It is true that drafting a UCC in a country as complex and diverse as India will be difficult, but greater movement, education, and modernity have probably driven a convergence in lifestyles and expectations throughout the population.
Nevertheless, the enactment of a UCC is today strongly associated with the BJP. While campaigning for elections in 2019, the BJP made several promises in its manifesto, many of which it has fulfilled, much to the delight of its base. These include the abrogation of Article 370 of the Indian Constitution, which had given special status to the state of Jammu and Kashmir; the passage of the Citizenship (Amendment) Act, 2019, which provides for a pathway for Indian citizenship for persecuted religious minorities — except Muslims — from neighboring countries; and the construction of the Ram Mandir in Ayodhya, a temple marking the spot where Hindus believed the god Rama was born, built on the ruins of an erstwhile mosque.
Enacting a UCC would be the pinnacle of achievement for the BJP. This explains the timing — having achieved its other goals, the government is now trying to bring in the UCC.
This will certainly be an uphill battle because of ferocious pushback from opposition parties and minorities. The BJP-led National Democratic Alliance (NDA) does not command a majority in the Rajya Sabha, and would need to build support for the bill. The UCC may well have to wait for a future parliament.
However, a debate on the UCC’s merits and form is welcome and desirable. Discussion should not be shied away from in a democracy, and both the governing party and the opposition should embrace this opportunity to make their arguments for or against the UCC. In the meantime, India’s states are looking into implementing their own uniform civil codes, which can give Indians a preview of what a national code could look like.