Five days from now, on 26 January, Uttarakhand will roll out the Uniform Civil Code for its citizens—the fulfilment of an electoral promise made by the BJP two days before the Assembly elections of 2022.
This code is now the template that other BJP-ruled states, notably Gujarat and Rajasthan are likely to follow. Once more than half the states adopt it, implementing UCC nationwide—as cardinal to the BJP as the abolition of Article 370—will be closer to the goalpost.
This column will look into the many aspects of this legislation which was passed by the Uttarakhand Assembly on 7 February 2024. It received the assent of President Draupadi Murmu on 13 March.
However, contrary to popular perception, Uttarakhand will not be the first, but the second state in the country with a UCC. The honour of being first goes to Goa. Its civil code covers everyone in the state—Hindus, Christians, Muslims, Parsis and Jews—with an interesting and blatantly patriarchal exception for Hindu men. While not allowing polygamy for Muslims, it allows a Hindu man to remarry if his wife doesn’t conceive a child by the age of 21 or a male child by the age of 30.
Again, while a divorce granted by the Catholic church is treated as a valid divorce for civil purposes, non-Catholics have to secure a divorce from a civil court. It’s surprising why there has been no hue and cry raised by political parties, academic bodies or even women’s rights organisations about these absolutely discriminatory provisions.
But yes, Uttarakhand will be the first state in the country to enact a Uniform Civil Code on the lines of Article 44 of the Directive Principles of State policy.
Also read: Excluding STs from Uttarakhand UCC exposes a fundamental problem in its concept
UCC debate in the Constituent Assembly
It bears recall that historically speaking, the first reference to a common civil code entered India’s political lexicon during the debates in the Constituent Assembly (CA). In fact, Hansa Mehta and Amrit Kaur, two redoubtable women members of the CA, along with Swatantra Party leader Minoo Masani, were among the first proponents of the uniform civil code. As Amrit Kaur said, “One of the factors that has kept India back from advancing to nationhood has been the existence of personal laws based on religion, which keep the nation divided into watertight compartments in many aspects of life.”
They received initial support from stalwarts like BR Ambedkar, Jawaharlal Nehru, KM Munshi and Sardar Patel. However, the opposition from almost all the Muslim MPs and Anglo-Indian representative Frank Anthony was vehement.
Maulana Azad, who had been the President of the Congress during the war years—from 1940-1946—expressed concern about the potential erosion of religious autonomy and minority rights with the implementation of the UCC.
Begum Aizaz Rasul, who broke ranks from the Muslim League and joined the Congress to stay in India, was also not in favour of the UCC. The only Muslim woman in the CA, she felt the new code should accommodate the religious beliefs and traditions of all communities to ensure harmony and social cohesion.
Frank Anthony too emphasised the need to respect the cultural diversity and pluralism of India. “Communities should be allowed to retain their distinct identities,” he said.
Sardar Patel, who was for the UCC, chaired the Advisory Committee on Fundamental Rights, Minorites, Tribal and Excluded Areas. Under him, a compromise was reached that instead of being placed in the category of fundamental rights, UCC could be included in the Directive Principles of State Policy under Article 44. It reads: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. Now ‘state’ here refers to both the Union and the state governments.
As per the fifth entry in the Concurrent List detailed in the Seventh Schedule, read with Article 162, state legislatures are empowered to enact laws relating to marriage, divorce, adoption, and succession. It was this provision that enabled Uttarakhand to emerge as the pioneer state with regard to the UCC.
Before proceeding further, it may also be placed on record that getting a consensus even on myriad regimens of Hindu laws was not easy. In fact, the first Hindu Code Bill proposed by Ambedkar had to be split into four different Acts to minimise the opposition. These were the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956. The Hindu Succession Act was amended in 2005 to give women an equal right to inheritance with regard to the agricultural property of their parents. The Hindu Code Bill included within its ambit Sikhs, Jains and Buddhists.
Also important is the passage of the Special Marriage Act of 1954, which addressed the issue of interfaith marriages.
Many feel that a little push could have cleared the decks for a UCC in the mid-fifties itself. Interestingly, the Jan Sangh (the precursor to BJP) opposed the Hindu Code Bills. They argued that if the scriptural injunctions of Hindus were being brought under the ambit of Parliament, so should those of other religions.
Opposition to the Hindu Code Bill took the form of support for the UCC. It was clear that the Congress did not want to disturb the political apple cart—for by then, the Muslims had emerged as a vote bank for the Congress.
Also read: Uttarakhand UCC a confused attempt at reshuffling succession in Hindu law. It will be chaotic
No debates today
As things stand today, the Congress, TMC, RJD and the National Conference are opposed to the UCC, the BJP and its allies are firmly in favour, while the AAP, the NCP and both factions of the Shiv Sena have given their qualified support.
One must also state that while the procedure for the passage of the UCC Bill in Uttarakhand has followed the letter of the law, multiple questions have been raised. They include the non-inclusion of a legislator on the committee, refusal to refer the Bill to a select committee or a clause-by-clause reading, lack of discussion in the Assembly, and the undue haste in which the Bill was cleared in two days of the four-day session of the Assembly specially convened for this purpose.
The Committee was headed by a retired Supreme Court judge, Justice Ranjana Desai, and included the former CJ of Sikkim, Justice Permod Kohli, the ex-Chief Secretary of Uttarakhand, Shatrughan Singh, Vice Chancellor of Doon University Surekha Dangwal and social activist Manu Gaur. Appointed on 28 May 2022, they toured the state, received over 2.5 lakh memoranda, and after four extensions, submitted their report on 2 February 2024. It was accepted by the cabinet two days later.
A special session of the legislature was convened on 6 February. But unlike the discussions on the UCC in the constituent assembly where substantial points were raised, and views of members recorded—the Uttarakhand Assembly repository has little to show in terms of debate—there was a one-line introduction of the Bill by the CM Pushkar Singh Dhami, followed by disruption by the Congress as their legislators walked into the well of the House. The next day the Bill was passed with a voice vote, which given the numerical preponderance of the BJP in the Assembly was a no-brainer.
This is the first in a 2-part series about the Uttarakhand UCC.
Sanjeev Chopra is a former IAS officer and Festival Director of Valley of Words. Until recently, he was director, Lal Bahadur Shastri National Academy of Administration. He tweets @ChopraSanjeev. Views are personal.
(Edited by Theres Sudeep)