Sanjeev Ahluwalia | Needed: A less intrusive, more inclusive civil code

A Uniform Civil Code (UCC) dealing with matters of personal law is a good idea in a multi-cultural country like India, given the rising number of cross-community marriages -- although still miniscule in proportion to total marriages. A UCC can be a framework to promote cross-community affinity by applying the benign principle of causing the least harm to any community, borrowing the best features from all personal laws, and ending practices rendered obsolete by time or plainly inequitable like gender inequality.

The Government of Uttarakhand notification dated May 27, 2022 setting up a committee chaired by Justice Ranjana Prakash Desai (Retd) merely states the desired end result of framing a common code for personal laws. It does not elaborate on the various laws which might be impacted or would need to be reconciled. The committee held 41 public meetings, including one in New Delhi, and had received 60,810 suggestions, which indicates the wide range of consultations.

These meetings could have been made more productive if the committee had shared a brief to inform stakeholders of “how” amalgamation across personal laws would be achieved and assured communities that the resulting common code would cause the least harm and reduce dissonance across the existing personal law legislation, thus promoting inter-community marriages, mixed community families and “ease of living” -- an oft repeated goal of the Narendra Modi government.

The success of the UCC will be assessed by a single metric -- citizen satisfaction that the discomfort and uncertainty from the new legislation is minimal and that the burden of compliance with government regulations is reduced.

The UCC does well to recognise “live-in heterosexual relationships”. These social arrangements are proliferating in cities, where the exigency of eye-wateringly expensive accommodation encourages the sharing of a house, albeit not always in the “nature of marriage”. Recognising and defining such households also enables a new safeguard provision under Section 388, which provides maintenance rights for a woman deserted by a “live-in partner”. Here the UCC falters by protecting only deserted women. Under Sections 33 and 34 of the code, maintenance rights are available to either spouse as per “good practice” gender neutral terms. In comparison, Section 388 errs in not reproducing this gender-neutral stance.

The code also errs in not using this opportunity to widen the scope of the landmark, nine-bench verdict of the Supreme Court of India in Justice K.S. Puttaswamy (Retd) versus the Union of India (2017). The right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. Indian laws do not recognise gay marriage. Extending provisions for live-in arrangements to the LGBTQ community could have been transformative by bestowing some legitimacy on such relationships. The UCC would have made global headlines for its vision, sagacity, and social empathy.

There is little doubt that codifying “live-in” arrangements, increase state micromanagement of private affairs is an intrusion, which reduces the “ease of living” and enhances litigation. Uncertainties persist. How will the police enforce compliance with the onerous provisions for registration? Is house to house checking next? Will it become mandatory for house owners renting property to couples to ask for marriage or “live-in” certificates? How will a court distinguish between a man and a woman who are just sharing a house for economic reasons, or as friends -- where desertion by one would not qualify for maintenance rights -- from a man and a woman “cohabiting in the nature of marriage” -- where maintenance rights would be attracted?

The UCC is tilting at shadows by implicitly seeking to “protect women”, thereby painting modern Uttarakhand women in gullible, faintly derogatory, patriarchal terms. Around 80.7 per cent of Uttarakhand’s women are literate, versus the national average of 70.3 (NSO 2017). Independent women are the backbone of Uttarakhand’s economy.

Women led the forest preservation “Chipko” movement in the 1970s. They manage lands and business, settle disputes, and yet remain homemakers because working men often emigrate for economic reasons or are in the Army posted far away. The world was recently presented visuals of a new Indian womanhood -- column after column of women soldiers, officers, and students -- marching down New Delhi’s Kartavya Path on Republic Day -- confident, secure, serene -- more than at par with any developed country. The UCC does not internalise this sentiment.

There are good reasons why a uniform civil code makes eminent sense but force-feeding uniformity from the top is not one of them. Judicial law has already plugged loopholes and protected the right to privacy and women’s rights. The rights of children are similarly protected with rights and responsibilities linked to parentage irrespective of the bond of marriage.

Conversely, consider the case of polyandry -- an ancient Indian practice mentioned in the Mahabharata -- still practised under tribal law. Curiously, it has resurfaced as a coping strategy amongst poor, landholding families to prevent the fragmentation of land. The award-winning Punjabi film Kohrra, created by Sudip Sharma and directed by Randeep Jha for Netflix, documents this practice, illustrating the need for new laws to resonate with the prevailing economic and social circumstances.

There is much to be learnt from tribal law and striving to include tribal communities under a single code provides that opportunity. But that will never happen if tribal law remains a closed black box. The UCC chooses not to confront this vexed issue by exempting tribal communities from its provisions, thereby sheltering behind Part XXI of the Constitution, clause (25) of Article 366 read with Article 342. A plain reading shows that there is no constitutional bar in these provisions on a state legislature, after consultations with tribal communities, proposing to the President of India, a bridging device -- an appropriate, possibly lagged, procedure to merge non-conforming aspects of tribal law with the mainstream UCC provisions. Doing so would have provided other states with proactive, tested pathways for similar mainstreaming of tribal law.

The UCC was commendably legislated in record time. But it is error prone. Section 51 dealing with intestate succession, correctly uses the gender-neutral term “surviving spouse”. But the supporting Schedule 2, mistakenly, mentions “widow”, making male spouses ineligible for intestate succession. Sadly, what has been gained by haste is likely to be lost to higher costs during implementation and does not match the social cost of the lost opportunity, for Uttarakhand to showcase its time-honoured culture of open-minded scholarship, an open worldview and inclusive social relationships.