The ruling dispensation’s strategy to project the Uniform Civil Code (UCC) as an electoral topic can very well boomerang on it. There is a gradual realisation of this fact. Several leaders of the ruling coalition have been sceptical and critical about the proposal.
Be that as it may, the Centre should take the blame for the present controversy over a law which is yet to take shape. The move of the present Law Commission to re-examine the issue afresh—despite a relatively recent report by the previous Commission—showed the agenda of the Centre. The think tank of the Bharatiya Janata Party (BJP) might have initially thought that the UCC debate would help them gain electoral mileage ahead of the 2024 Lok Sabha election. But, as of now, no enlightened discourse on the topic conceives the issue as one concerning the Muslim community alone. No one engaging seriously with the subject takes it as a topic for Hindu-Muslim divide. The Centre has started to understand the folly of the game plan, which is evident from the home minister’s reported assurance to exclude certain tribes in the Northeast from the preview of the “new law”.
The intention of the Centre in this new legislative attempt has been clearly questionable, despite its incorporation in the BJP’s election manifesto years ago. The text of the proposed law is invisible, yet its context is clearly visible. The conventional constitutional theory that the legislature cannot have any motive and no legislation will be vitiated by malice is no longer true, at least in the Indian situation. A striking example is the Muslim Women (Protection of Rights on Marriage) Act which criminalised the instant triple talaq, though it is void even otherwise, owing to the Supreme Court judgment in Shayara Bano vs. Union of India (2017).
Thus, a legally non-existing mode of divorce was criminalised in a sectarian way, i.e., among one community alone, while leaving out all other communities. Various anti-conversion laws in BJP-ruled states, under the pretext of a fictitious theory of “love jihad” tell the same story. The point is clear: The legislation can reflect majoritarian impulses with clear political and electoral agendas. The proposed UCC, if it comes into being, also can follow suit. There is a good possibility that the Centre will target the most prominent minority in India under the label of the UCC.
Dr B R Ambedkar was quite aware of the hurdles on the way if India adopted the UCC. So, he suggested an optional UCC, that too only as a future possibility. An optional UCC is no longer a UCC. Likewise, a UCC which excludes certain tribes and the Hindu Undivided Family (HUF) is no longer a UCC. It could be, at worst, a targeted legislation in the guise of the UCC.
The UCC, of course, is part of the Directive Principles of State Policy. It is embodied in Article 44. If the Union is genuinely fascinated by such stipulations in Part IV of the Constitution, there are several other principles under the same Part which are more tempting and beneficial to the public, to achieve the goal of egalitarianism. They might not be divisive or even controversial. Endeavours for a social order which minimises inequalities in income, status and opportunities (Article 38), for equal justice (Article 39A), for just and humane conditions of work (Article 42), for ensuring participation in management of industries (Article 43A), for promotion of educational and economic interest of Scheduled Castes, Scheduled Tribes and other weaker sections (Article 46), for upliftment of life standard (Article 47) are all constitutional aspirations reflected in the Directive Principles.
Apparently, all these require a great amount of administrative initiative and democratic commitment. No wonder a regime with a divisive agenda and an eye on electoral success rather than the overall welfare of the public conveniently chose Article 44, disregarding almost all other articles under Part IV. This selective approach must be exposed.
The 21st Law Commission report which presented its consultation paper in 2018 said it all. Even while concluding that the UCC is neither necessary nor desirable at present, the report highlighted many instances of fundamental rights violations and gender inequality among certain communities. These are, no doubt, serious issues that could be judicially resolved as it happened in the seminal judgment in Mary Roy v. State of Kerala (1986) that mandated equal rights of inheritance for Christian women in certain parts of Kerala.
As regards the Muslim community, the Supreme Court is seized of a case in which a PIL seeks a declaration that “the practice now followed by the Muslims, based on Shariat, … in regard to the inheritance of Muslim women, is violative of Articles 14, 15, 19, 21 and 25 of the Constitution of India.” The Centre, which is a party to this litigation (Khuran Sunnath Society and others vs. Union of India), should have tried to expedite the hearing of this case so as to render justice to the discriminated women folk in the Muslim community. That the Centre did not choose to do so and instead tried to instigate the present controversy on the UCC shows a fragile (and failed) attempt for extraneous advantage.
The obstinacy of a section of Muslim clergy for retention of the unequal and unfair method of inheritance under personal laws is condemnable. One cannot justify polygamy or exploitation of women or sheer gender inequality based on religious prescriptions. Everything, including religious beliefs and practices, should stand constitutional scrutiny. If they do not pass the test, the court can very well nullify them or even re-cast them. Thus, when the constitutional court scans the personal laws, what the clergy feels is of no consequence.
It is, however, erroneous to think that the popular feelings against the stubbornness of the Muslim orthodoxy can be converted into electoral gains. Almost two-thirds of the Constitution of India talks about governance. Any rhetoric on the UCC is insufficient to hush up the Centre’s failure in governance, which is now reflected in varied situations ranging from the Odisha train accident to the ethnic violence in Manipur. Thus, the public’s response to the UCC should guard against the topic itself, so that it does not distract us from the burning issues facing the nation.
Kaleeswaram Raj
Lawyer, Supreme Court of India
(Tweets @KaleeswaramR)