Uttarakhand Uniform Civil Code: A Majoritarian Code
Brinda Karat
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THE Uttarakhand Uniform Civil Code adopted by the Uttarakhand assembly is a good example of why the 21st Law Commission headed by Justice S B Chauhan had termed the UCC “neither necessary nor desirable.” The code as adopted by the Uttarakhand assembly is not just flawed on many counts, in some respects it is retrograde and eliminates existing rights. While BJP spokespersons are focusing on the prohibition of practices in Muslim Personal Law such as triple talaq and halala to hail the code, this is to conceal the grossly anti-woman, anti-democratic and in some respects draconian character of this law. In many of its provisions it is a direct assault on an adult woman’s sexual autonomy and is a legal license for moral policing and vigilantism. It also gives the State, the government and the bureaucracy the power to interfere in adult consensual relationships, including on issues of marriage and divorce.
The underlying theme of the code is that of criminalisation. It could be described as the “Uniform Civil Code for Criminalisation”. Almost every single clause is linked with penalties and punishment. On the other hand, the absence of reform in existing laws is glaring in the code. There are sufficient grounds for a court appeal against it.
STATES BASED UCC
In the Directive Principles section, Part IV, Article 44 of the Constitution of India it is stated: “The State shall endeavour to secure the citizen a Uniform Civil Code throughout the territory of India”. The State here refers to the union government. Therefore it is questionable whether a state government has the right to enact such a code in the first place. Further, for those who support the UCC the basic argument is that India should have one law applicable to all citizens in matters of marriage, divorce, succession etc. The prime minister in his push for a UCC, had stated last July “In one house, if one member has one law and another member has another law, can that household, family run? So how will the country run with a dual system?” He was referring to Muslim Personal Law. But now under his leadership the double engine government run by the BJP in Uttarakhand has put this argument on its head, by legislating a code applicable to one state, itself establishing a “dual system.” If every state legislates on its own code, where is the uniformity of the code?
The other aspect is that it is not uniform because tribal communities have been left out of the code. Why should this be so? If indeed as is being claimed, this law is for women’s equal rights, why should women of any community be left out? There are constitutional provisions to protect customs of tribal communities. There are also constitutional provisions to protect minority communities, whether Muslim, Christian, Parsee or any other. It is double standards to exclude one section and include the others. We have argued repeatedly that uniformity does not mean equality. The Uttarakhand Code is neither uniform nor, as we shall see equal.
UNDEMOCRATIC PROCEDURE
A proposed law that directly interferes with and changes current practices and rights requires consultation, discussion and debate, before its passage. The government and its apologists claim that more than 60,000 persons gave their opinions to the committee and that the draft is based on such “consultation.” That may be so. But this was an exercise before the draft was made. The second phase of consultation must be on the draft itself. It is accepted parliamentary procedure that the draft of a bill placed in parliament or the state legislature as the case may be, particularly a bill of such significance, must be sent to the relevant committee of the house, which has representatives of the opposition too. It is this committee that scrutinizes the bill, invites opinions from concerned citizens especially representatives of those directly impacted by the proposed legislation. Instead, the BJP has made it a practice to use its majority to ram through bills. This has happened in parliament and also in states where there are BJP governments.
In the case of the Uttarakhand Uniform Civil Code Bill, despite opposition members protesting that they were not given any time to study the 192-page draft, it was pushed through. The haste was clearly to ensure its passage before the announcement of the Lok Sabha elections. As a result, apart from the objectionable clauses, it’s a shoddy piece of drafting.
APPLICABILITY OF THE LAW
The first undemocratic clause concerns the applicability of the law. The “preliminary” clause states that the law is applicable to residents of Uttarakhand. In the list of definitions, “resident” is defined in a sweeping, broad sense to cover not just those who are domiciled in the state but even those who have lived in the state for just a year and even central government servants who have been transferred to the state (Ch 3.(n) (iii) and (iv). Why should for example, a permanent resident of Kerala, transferred by her employer, say for a two year stint to Uttarakhand, be governed by a law of a state which is not her own? Or why should a student, doing a two year course in the state be subjected to a law when she will be leaving the state in a given time frame.
Equally objectionable, the law states that even if only one of the parties in a marriage/relationship is defined as an Uttarakhand citizen, the law applies to both and even if the couple are living outside Uttarakhand, the law will apply to them (example Ch 2.6). Thus by bringing a wide range of persons into the ambit of the law and stretching its jurisdiction beyond the territory of the state, the Uttarakhand government has appropriated over to itself rights which are not supported by the constitution.
COMPULSORY REGISTRATION
The code makes registration of marriage compulsory which is as it should be since such registration affords protection for a woman in case of abandonment, desertion or denial of a marriage. However it appears that the interest of the woman is not the reason for this clause, but to give control to the government to approve or disapprove of a marriage. The sub-registrar, the authority for registration, has the right to refuse to register a marriage (Ch 13.2. ii ). The sub-registrar has to give the reasons in writing to the couple. The code does not specify grounds on which registration can be refused but leaves it open-ended. The appellate authority is the registrar/registrar general whose decision will be final and binding (Ch14.2). Imagine the harassment for a couple to be at the mercy of officials appointed by the government. Suppose for example, the marriage is of an inter-caste or inter-community couple which the official disapproves of – the code gives him the power to interfere and make their lives miserable. Moreover what does “final” and “binding” mean? That the couple can’t go to the court? The code in its poor drafting does not make it clear. Thus a clause of compulsory registration which could help women has been turned into an instrument to permit harassment by vindictive officials. Further, the register – with all the personal details of the couple applying for registration and also details of reasons for rejection is to be “open for inspection by any person” (Ch14. 15). This is an outright invasion of privacy. The only reason for such an obnoxious clause is to provide fodder for those opposed to the marriage.
This public notice for marriage was first introduced in the Special Marriage Act (SMA). In the experience of couples getting married who may not have parental approval, it has been seen that such public notices provide the ground for undue and unwarranted interference in self choice marriages of adults. Instead of reforming the SMA to remove such clauses and make it simpler, a recommendation of the Law Commission, this aspect has been included in the code for compulsory registration.
Further, the clause of compulsory registration is with retrospective effect, specifically mentioning all those married before 2010. This is an absurd stipulation. If the couple does not register, it is considered a crime and liable to punishment – payment of a fine ranging from Rs 10,000-25,000 and in case statement is found to be false by the official, imprisonment for three months. Thus a measure to take forward social reform has been changed into a coercive instrument to deal with a couple as though they are criminals. Instead, campaigns should be launched by the government about the need to register marriages.
HINDU MARRIAGE ACT NOT A CIVIL CODE
The code has replicated almost in its entirety the sections on marriage and divorce from the Hindu Marriage Act, 1955 and imposed it on all sections and communities. This Act was adopted after a big battle led by Dr Babasaheb Ambedkar against the Hindu orthodoxy who did not want any change in Hindu personal laws including the right to have more than one wife, the refusal to include the right to divorce, the insistence on list of “prohibited” relationships, against the removal of the condition for the couple to belong to the same caste etc. The opponents of reform held that since marriage according to Hindu “beliefs” was sacrosanct any interference would destroy the very institution of marriage and of religious custom. The Hindu Marriage Act 1955 (HMA) was adopted in the background of conflict and resistance from the orthodoxy to any progressive change. Therefore while it was a big step forward, it has the stamp of compromise leading to many infirmities. The Uttarakhand UCC which imports the major aspects of the Hindu Marriage Act and imposes it on all communities, carries all these infirmities, particularly in the context of prohibited marriages, divorce, so-called conjugal rights, and so on. It omits issues of adoption and guardianship, retaining the present inequalities. It does not recognise same sex relationships, and thus in a sense criminalises such relationships.
The prohibitions on those who can marry and those who cannot is taken from the Hindu Marriage Act 1955 and imposed on all sections of society. For example, in some communities, cousins can marry, this is both a custom and usage. In the Uttarakhand Code this is among prohibited marriages. Also, it is stated that if custom and usage permit, it may be permitted, provided it is “not against public policy and morality.” Who is to decide what is moral or not? The government and its bureaucracy? This is a reprehensible condition for the interpretation of usage and custom.
DIVORCE
On the issue of divorce, the code gives similar powers to government officials to interfere on the issue of divorce. A divorce or annulment of a marriage also has to be registered. Here again the government appointed officials have been given the right not to register a divorce. When courts grant divorce, who is a government official not to register it? The HMA’s illogical restriction that no divorce proceedings can be started till after a year of marriage is retained. If a woman is married to a violent spouse, why should she have to wait for a year to even start divorce proceedings? (Ch 4.28.1) Moreover the grounds for divorce before the one-year period such as “exceptional depravity and hardship” are undefined so that a crime say like wife-beating may not be considered “hardship.” The court also has a right in a divorce plea to grant as an alternative “relief”, “judicial separation” not divorce thus diluting the right to divorce. As far as divorce by mutual consent is concerned, the clause of having to live “separately for one year” in the HMA has been retained. What does “separately” mean? Sometimes a couple who have decided to divorce, do live under a common roof, because of various circumstances, though not within a marital relationship. Why put conditions once a couple has decided to divorce?
POLYGAMY AND HALALA
Much has been made by the BJP of the prohibition of polygamy in the code (Clause 29). As far as the Muslim community is concerned, the Muslim Women (Protection of Rights on Marriage) Act 2019, adopted after the Supreme Court outlawed triple talaq was already in operation. Clause 29 of the code repeats this but with a negative difference. While the 2019 Act gives custody of “minor children” to the mother, the code limits maternal custody of the child only till the age of five (Ch 5.35.2). Statistics on polygamous marriages reflected in the National Family Health Survey-5 show that it is not just Muslim women but women of other communities too who are affected. It recorded 1.9 per cent of Muslims and 3 per cent of Hindu women who said their husbands had more than one wife! The community with the highest number of men with more than one wife according to the survey is tribal communities with 2.4 per cent, Scheduled Castes with 1.4 per cent, 1.3 per cent among OBCs and 1.2 per cent others. It also shows that the national average has been coming down across communities. Thus the constant refrain of polygamy among Muslims, is nothing but a communal campaign to target the community, not to protect all women of all communities who live with husbands who are polygamous. It needs to be remembered that it has always been courageous Muslim women who have challenged orthodoxy within the community to fight for their rights. It is Sameena Begum who has approached the Supreme Court against the obnoxious practice of Halala. The case has been going on since 2018. The code (Ch 4.30.2) prohibits any such practice. In any case such cases are rare but before taking such a measure, the Uttarakhand government should have held discussions with the community. The positive aspects of a Nikah could have been included in the code such as the concept of Mehr, where a previously agreed amount is to be paid to the woman at the time of marriage and if it is deferred, it is mandatory in case of divorce, apart from the right to maintenance. A Nikah also provides for a contract between the two parties in case of break-up. This allows the woman to negotiate certain terms.
The code could also have included a provision for a no-dowry marriage. But none of these reforms have been considered. It is just an imposition of majoritarian thinking.
OBLIGATORY COHABITATION
The present law is that either spouse can in the case of separation by one party, ask for “restitution of conjugal rights.” This is a concept included in the Code (Ch 3.21) that fits in well with the ideology that marriage is sacrosanct even if the couple are unhappy. In our work among women in problematic marriages, we found that there were women whose husbands had deserted them who did want to use this clause as a legal avenue to bring their husbands “back.” However they soon found that even if the court ruled in their favour of “restitution of conjugal rights”, if the decree was not implemented within a year, divorce was permitted without any delay. Thus this law which is supposed to protect women acts in the opposite way. The main objection is that this law has been used by men to force women to submit to “conjugal rights” of the husband when she has separated from him. Ordinarily no woman would like to divorce or separate unless there are good reasons for doing so, especially if there are children. To retain a gender neutral clause of restitution of conjugal rights, when a woman does take the decision to separate, is retrograde. The language itself used in the code is so patriarchal and actually is a sanction for marital rape. For example on the issue of judicial separation (Ch 3.22.2) it states “where a decree of judicial separation is passed it will no longer be obligatory for the petitioner to cohabit with the respondent”. In other words the norm is obligation to cohabit. The clause has been challenged in the courts. The code should not have included it.
MANUVADI INVASION
The section in the code which has received the greatest attention and criticism from a range of commentators and rightly so, is the highly Manuvadi invasion into personal choices of intimate partnerships in the code. Described as “live-in relationships” (Part 3, 378-389) this section seeks to box in a self-choice live-in relationship between two adults into a marriage framework. Such a partnership if over a month old, must be registered. Even if there is “an intention” to enter into such a live-in relationship, it must be registered. Surely this formulation deserves a world gold medal for its absolute insensitivity to real life relationships – if the following month, the couple decide to separate, that too must be registered. The registrar must make a “summary inquiry”. Thus the very act of registration leaves the couple open for “enquiry” into their relationship and if the registrar finds something “suspicious” the police must be informed. Even more invasive, if the registering authority receives a “complaint” that a couple is living together and has not registered, the complaint must be noted and action taken. This is a clear legalisation of vigilantism. Just as you have Romeo squads and anti- valentine day squads hunting down young couples in public spaces, now you will have hoodlums and goondas, barging into residences, demanding to know if the young couple living together are registered, the difference being that such activity will now have the legal sanction of the code. This is a direct assault on the constitutional right of adults to freedom of choice, it is a blatant violation of human rights in addition to making a mockery of the right to privacy. This is exercising control of an adult woman, the core of manuvadi approaches. If such registration is not done, the punishment is a minimum of three months to six months. This code reaches its long arm of surveillance to couples living outside the state if one of them is a resident of Uttarakhand. They are asked to register their live-in relationship to the “registrar” where they live. The code itself recognises lack of jurisdiction, so changes the language in the relevant clause for those living outside the state (378.2) to “resident of Uttarakhand living outside the state may (not shall) submit details of live-in relationship etc.” The whole concept of imposition of unconstitutional conditions on the choice of consenting adults as to how they live is an abomination which should have no place on our statute book.
PROPERTY AND SUCCESSION RIGHTS
Present personal laws have detailed conventions of heirs and line of succession. The UCC overrides all of them without debate with communities involved. It claims to be ensuring equal rights for men and women specifically that Muslim women will gain because the UUCC ensures equal shares for sons and daughters whereas at present a Muslim daughter will get only half the share of her brothers. It also claims that it is doing away with the present difference between ancestral and self-acquired property. These claims are deceptive. The code gives the right for a property holder to will away his entire property. This undoes the reform in the Hindu Succession Act 2005 which after a long struggle by women’s movements, gave an equal share by birth to sons and daughters at least in ancestral property. At present most personal laws ensure a certain share of property is guaranteed for females. The code in this sense will deprive women of a guaranteed share that they now have. Bias against daughters has now once again got legal sanction as far as the right to will away the entire property to male heirs. This is more so in case of agricultural land. As it is daughters who inherit agricultural land as part of their share in ancestral property are under tremendous pressure from males of their family to give up that right. The code makes it that much easier not to give daughters a share in agricultural land. The question of the rights of Hindu joint families, a privilege Hindus have over other communities remains intact as there is no mention of it in the code. This hastily drafted code, while claiming to help women actually does away with existing rights and protection since the right to will away one’s entire property is the overreaching change. The right to marital property has been a long-standing demand. The code had an opportunity to include this right, but given the ideological underpinnings of the code, this has been ignored.
The U-UCC is a shoddy piece of legislation which has been adopted to serve a narrow political purpose. It is a fraud both in terms of uniformity and equality. It centralises power in the government over consensual relationships which is anti-constitutional. It seeks to impose a majoritarian view on all communities. The CPI(M) opposes this code and demands it be withdrawn.
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