Today, when we have the debate of the UCC, we do not even know whether the UCC will be declaratory, as per the assurance of Dr. Ambedkar, or whether it will be mandatory—a thought that intensifies the anxieties of minorities. From the flavour of the debate today, it looks like the UCC is being projected as a proposed mandatory law. The argument against this imposition will remain the assurance of Dr. Ambedkar in the Constituent Assembly Debate.

The history of the debate gaining momentum on a Uniform Civil Code goes back to the late 1940s. The debate started with whether laws in India should be ‘uniform’. By law here, we specifically mean laws related to family-related issues such as marriage, divorce, inheritance, guardianship, adoption, and maintenance. These issues, as the popular terminologies suggest, were seen personal to human existence and thus are popularly referred to as Personal Laws. A Uniform Civil Code (hereinafter referred to as UCC) is the idea of introducing uniformity to the then and still diverse personal laws of communities. This debate must also be engaged while understanding that something like marriage or inheritance is much more personal, essential and intimate to human existence than for instance say laws on contract. This intimacy with which a human is governed by these laws should be kept at the center in order to gauge the seriousness of the debate on UCC.

The Issues

The strong reactions to the idea of UCC generate, primarily, from the fact that this idea of integration and uniformity of personal laws in India is radical to the history of the land. From pre-British to British times, we learn that communities were governed by their own community-specific personal laws like the Laws of Shaster or the Laws of Koran (sic). The Muslim community, in general, has registered strong objections against UCC since the very inception of the debate. The Muslim community representatives in the Constituent Assembly were the most vocal against such a law. The objections, interestingly, had nothing to do with Muslim women. In fact, the Constituent Assembly Debate, only at a single place, passingly infers ‘equality to women’ as a supposed objective of the proposed code. The Debate, by and large, was focused on a reading of nationalism and minority rights. The term ‘gender’ was not even used in the 1949 Debate. It was with time, especially with the Supreme Court obiters, UCC was given the primary objective of being a proposed tool against gender injustices perpetuated in different personal laws, particularly Muslim personal laws.

The anxieties that the minorities experience today have existed from the time UCC was introduced in our constitutional history. From the 1940s till today, Muslims have been accused of carrying an “isolationist” attitude (Munshi). During the debate, we see that Dr. Ambedkar, a proponent of UCC, categorically assured the opponents of the UCC, particularly the representatives of the Muslim community, qua the declaratory nature of a proposed UCC, if it comes in the future. Dr. Ambedkar categorically said, “It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary.” This is the conclusion of the debate in 1949, settling the anxieties with assurance.

Today, when we have the debate of the UCC, we do not even know whether the UCC will be declaratory, as per the assurance of Dr. Ambedkar, or whether it will be mandatory—a thought that intensifies the anxieties of minorities. From the flavour of the debate today, it looks like the UCC is being projected as a proposed mandatory law. The argument against this imposition will remain the assurance of Dr. Ambedkar in the Constituent Assembly Debate.

Uniformity

One of the arguments backing up the idea of a UCC was that of the existing “uniform” criminal laws and different civil and criminal procedure codes. This is an incorrect premise. In India, both criminal codes such as the Code of Criminal Procedure, 1973 or the Indian Penal Code, 1860 carry provisions that are not uniform throughout India. In fact, criminal law in India, often, witnesses state amendments. Other acts also, such as the Code of Civil Procedure is not uniformly applicable throughout India. Even the Constitution of India, for that matter, does not satisfy the test of uniformity. From interpretations of reasonable accommodation to intelligible differentia, the Constitution, even when it comes to the principle of equality, accommodates inclusivity. Does this make the Constitution a problem? Uniformity as a solution to problems such as gender injustice is a misplaced argument, one that lacks bona fide as well. In this background, uniformity in laws has remained a legal myth in our country, a myth that has been used to buttress the pro-UCC argument, though legally unsound. The arguments for national integrity are entrenched in the ideas of uniformity that were at the heart of the debate on UCC in the Constituent Assembly in 1949.

The 2018 Consultation Report

In 2016-2018, the Law Commission saw active participation from the Muslim community. A questionnaire of the Law Commission was replied to in detail by the All India Muslim Personal Law Board. This exercise had already taken place. It was after detailed consultations and meetings that the last consultation report came out. Today, in 2023, the notice of the Law Commission seeking views of the public at large is sans any terms of reference, scope, etc.
Today, we have a 2018 Consultation Report of the predecessor Law Commission concluding its findings stating that a UCC is “neither necessary nor desirable”. In a small span of time, the public at large has been asked again to provide views and opinions, just like the last time but in a much vague manner, against the same subject of UCC. Interestingly, the Government has remained silent as to the acceptance, rejection or partial acceptance of the 2018 Report.

Is UCC only a Muslim issue?

This question is a paradox in itself. UCC is not only a Muslim issue but UCC has the potential of turning into a Muslim issue as it has always been projected to be in the last decades of our Republic.
There has been passionate opposition to UCC from different minorities. It is a known fact that different minorities in India have different community-based personal laws. Tribals enjoy constitutional exemptions such as under Article 371. Customs are exempted from most family laws, community-based or general. For instance, from the Hindu Marriage Act, 1955 to the Special Marriage Act (SMA), 1954–customs have been exempted from the operation of the provisions of these Acts. The extent of these objections can be ascertained from the current protests against UCC in North East India particularly from a reported threat by a Naga organization to burn the official quarters of the sixty legislators to ashes if the Legislative Assembly “succumbs to outside forces and passes a bill in support of UCC”.

However, the whispers of concessions for tribal communities and even Christian community in UCC are already doing rounds. As such, the debate, ideally and intrinsically, not a Muslim issue, eventually becomes a Muslim issue. This political side of the debate must not be ignored.

When we discuss UCC, it is crucial to place the context that there are two sides to this debate: a legal side and a political side. The legal side of the debate, the idea behind UCC, there not being any draft for UCC, et al have fewer complexities if read in isolation from the political paradigm. We cannot divorce law from politics.

Majoritarianism

A popular argument that has been raised against the present exercise is the non-existence of any draft qua UCC. This argument has been used the other way round also where minorities have been questioned for their “unreasonable fears” against something that does not even have a draft. This is a mischievous argument. There is enough precedent in the Indian political and legal history to substantiate the fears of minorities to not be “unreasonable”. Secondly, it has been argued that the SMA is already an applicable model of general family law and can be seen as a model for UCC.

These arguments make it crucial to analyze the provisions of SMA. Firstly, SMA is not a “uniform” law when it comes to its provisions and content. It has customs as an exception. It further introduces Hindu Succession Act for Hindus, Buddhists, Sikhs, and Jains who marry within these four religions (seen as the Hindu fold); persons from the remaining religions are governed by the Indian Succession Act. Where is the uniformity here in SMA? Secondly, SMA perpetuates Hindu morality. In its prohibited degrees of marriage, for instance, marriage between cousins is placed in a prohibited degree. If SMA is the model before Indians of a UCC, as argued, the fears  of minorities of being trampled by majoritarian morality in the guise of a uniform law are anything but unreasonable. As James Baldwin said, “I can’t believe what you say, because I see what you do”.Thirdly, SMA is not mandatory in nature. It is declaratory. What differs this existing system,  family-matrimonial laws system by and large uniform in nature, from a proposed Uniform Civil Code, is the agency that rests with a citizen— the agency that is bound to be snatched away by a compulsory Uniform Civil Code.