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Draconian Intrusion

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As the state becomes the first to implement its own brand of the Code, concerns are being raised against potential state vigilantism, moral policing and infringement of individual and minority rights 

By Sanjay Raman Sinha

On February 7 as the Uttarakhand assembly gave its nod to the Uniform Civil Code (UCC) Bill, the state became the first Indian state to implement the UCC. Chief Minister Pushkar Singh Dhami called it a historic moment: “Today is a very special day for Uttarakhand. I also want to thank Prime Minister Narendra Modi that with his inspiration and guidance we got the opportunity to pass this bill in the Uttarakhand Assembly. UCC provides security to women and empowers them.”

The UCC presents common law for all communities in marriage, divorce, adoption and inheritance of property. These are areas of civil law and draw their legal legitimacy from religious codes of different communities. UCC has been in the centre of political discourse and debate intermittently over the many decades. Its implementation was part of the saffron party agenda and was an election promise in the 2019 Lok Sabha election manifesto.

The current law as passed by the Uttarakhand assembly will, in all probability, serve as a model for other BJP ruled states, if and when they choose to bring their own version of the UCC. The Uttarakhand version is stringent and has the insignia of state patriarchy. The Code criminally penalises civil misdemeanour and raises the spectre of Big Brother. As the state enters the forbidden realms of personal relationships, fears of infringement of privacy are raised. 

The Uttarakhand Uniform Civil Code places special emphasis on marriage, divorce and inheritance. In UCC, the age of marriage has been kept at 18 years for females and 21 years for males of all religious communities. Registration of every marriage has been made compulsory. Strict regulations for live-in relationships have been codified, No divorce application can be filed for one year after marriage. Provision for inheritance of a live-in child has been made. It is stipulated that at the time of marriage, the man and the woman are not married. In this way, polygamy is banned in the state. Halala is also outlawed. Property rights, will and inheritance laws have been rationalised. The tribal community has been completely kept out of the purview of UCC.

The acts of the Code and its underlying subtext are.

  • Equal property rights: Both son and daughter will get equal rights in property. It will not matter whether the child has been born in wedlock or not.

Subtext—The UCC does away with the differentiation between ancestral and self-acquired property as prescribed by Hindu law. The protection under the coparcenary system as per the Hindu Law will not be available under UCC. Son and the daughter would receive an equal share in the inherited property. Under existing Muslim law, the daughter is entitled to get only half the share received by the son. This has been negated. Daughters now have equal rights to ancestral property.

  • Property after death: If a person dies, the UCC gives the right to distribute the property of that person equally among the spouse and children. Apart from this, the parents of that person will also get equal rights in the property. In the absence of these heirs, the property will be inherited by other heirs, such as the brother and sister of the deceased and their children.

Subtext—As per the Shariat, a person may bequeath only 1/3rd of their property through a will. The UCC does not have this limit on testamentary succession. Now, a Muslim can bequeath the entire property to anyone through a will. The father and the mother are both equal heirs in the property of their children under the UCC.

  • Divorce will be granted only on similar grounds: Husband and wife will be granted divorce only when both have the same grounds and reasons. Divorce will not be granted if only one party gives reasons.

Subtext—Muslim men and women will have equal rights on divorce. If the woman wants to marry again, there will be no conditions of any kind. Apart from this, there will be a complete ban on Iddat. Iddat is a waiting period, which a Muslim woman has to complete after the death of her husband or divorce. During Iddat, a woman is not allowed to meet any other man and remains completely veiled.

  • Live-in registration is necessary: If couples living in Uttarakhand are staying in a live-in relationship, they will have to get it registered. This will be like self-declaration. Scheduled Tribe people will be exempted from this rule. Live-in will not be allowed if one of the couples is a minor or is married. The UCC provides for maintenance of women “deserted” by her live-in partner, similar to a married woman. The law requires the partners to notify the “Registrar” within a month of entering into a live-in relationship and while terminating a live-in relationship. In case either party is less than 21 years, their parents have to be informed as well. If the Registrar is doubtful of the relationship or the content of statements of parties, he can refer the matter to the local police. It prescribes a jail term of up to three months for not registering a live-in relationship. In case of failing to produce a certificate of live-in relationship, a jail term of six months is prescribed on conviction. 

Subtext—Live-in regulations has the potential to promote vigilantism and moral policing. It gives the state a licence to enter and control a citizen’s personal life. At a time when courts have repeatedly pronounced consensual personal relationships as legally sacrosanct, efforts of the state to regulate it may go against the right to life and liberty.

  • Responsibility of the child: If a child is born from a live-in relationship, its responsibility will be that of the live-in couple. Both of them will also have to give their name to that child.

Subtext—It will integrate the child in family and society and give it an identity. It will also socially sanctify live-in relationships in the long run.

  • Mandatory marriage registration: The law makes marriage registration mandatory. It should be done within 60 days of the ceremony. Failure to do so will invite a fine of Rs 10,000. The law will apply to those living in Uttarakhand as well as residents of Uttarakhand living elsewhere in India.

Subtext—Compulsory marriage registration will update state marriage records, but it will also keep all marriages (including inter-religious ones) under the state scanner. Action can be taken in matters of so-called love jihad. 

  • Polygamy and child marriage declared invalid: At the time of marriage, the minimum age of the girl should be 18 years and the minimum age of the boy should be 21 years.

Subtext—UCC brings the minimum age of marriage to 18 and 21 for Muslim women and men, in line with the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. In Muslim personal law, marriage is allowed for girls after 15 years. However, under the Child Marriage Prohibition Act, marriage of minor girls is a crime. Also, Protection of Children from Sexual Offences (POCSO) criminalised sexual activity with minors. In this way, it completely challenges the Muslim personal law.

  • Marriage within prohibited degrees illegal: The parties to the marriage should not fall within the prohibited degrees of kinship. In this degree, relations with immediate relatives are prohibited. If they are within these degrees, then the custom or custom of one of the parties permits marriage between them, but this custom or custom of one of the parties should not be contrary to public policy and morality. A list of such kinship specific to Uttarakhand has been drawn.

Subtext—The law also prohibits a person from marrying relatives, including cousins, uncles, aunts, which is allowed in many religious communities. In Muslims, it is culturally and legally fine to marry cousins. The UCC prohibits it.

  • No Halala and polygamy: A person can remarry after divorce without any other condition, such as marrying a third person before such marriage. This is a reference to the practice of halala under the Muslim personal law.

Subtext—The Code criminalises the Muslim marriage practice of Nikah Halala, without explicitly naming them. It is a criminal act and there is a provision for punishment for it.

The explicit aim of the UCC is to rationalise and codify a uniform civil law for different religious communities so that social equality and justice is maintained and protection to vulnerable sections provided. The apparent thrust of the new law does take this into consideration. However, the state also enters into areas where it has never gone before and raises concerns.

Justice Anjana Prakash, former judge of the Patna High Court, while speaking to India Legal, said: “As per the scheme of the Constitution, central acts cannot be amended or in any way revised by a state hence the UCC being passed by a state which has the effect of amending central laws is irregular. Also, Uttarakhand in all fairness, should have referred it to the select committee for a proper appreciation of the bill in a wholesome manner. There should have been discussions on every aspect of the law. Just because it was a poll manifesto does not justify its enactment. Apart from other things I think the rule that live-in relationships must be registered is dangerous. It’s certainly against the constitutional provision of individual liberty.”

Providing for a Uniform Civil Code is one of the Directive Principles of State Policy guidelines framed by the Constitution makers. Article 44 of the Constitution mentions: “State must seek to ensure for people a uniform civil code across India’s territory.” However, Directive Principles are the guiding principles for government policies and are not enforceable by courts. 

It would be instructive to recall what Dr Amedkar said when the issue of Uniform Civil Code was being deliberated in the Constituent Assembly. Ambedkar had argued that the constitutional provision permits future legislatures to legislate such that the UCC comes into effect only after the consent of communities was obtained. Later on, the provision was put to vote and included in the Constitution as what is now known as Article 44. “We have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. Article 35 (now 44) which merely proposes that the State shall endeavour to secure a civil code for the citizens of the country. It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. 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.”

The arguments of opponents and proponents in the Constituent Assembly debate were fiery and the decision of placing the Uniform Civil Code in the Directive Principles and not Fundamental Rights is an act of compromise, deferring the decision to the future legislatures. 

However, it should be pertinent to note that despite regional disparities in religious customs and traditions of kinship, marriage and succession, a pan-India outlook needs to be maintained as well. Furthermore, as Dr Ambedkar went all out to reassure the minority communities that they won’t be bulldozed into accepting the UCC, a workable consensus between all stakeholders should be aimed at.

It is precisely for this reason of forced implementation that the Constituent Assembly agreed to include the UCC provision as a directive principle rather than as a fundamental right. 

Here it is well worth remembering what was said by the Supreme Court in the Minerva Mills vs Union Of India ( 1980): “Indian Constitution is founded on the bedrock of balance between the Fundamental Rights and the Directive Principles. Together they constitute the core of commitment to social revolution. Goals of Directive Principles have to be achieved without abrogation of Fundamental Rights. Fundamental Rights enjoy supremacy over the Directive Principles. Fundamental Rights can be amended to implement the Directive Principles without affecting the Basic Structure of the Constitution.”

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