Understanding Uttarakhand’s UCC

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

On 26 January, Uttarakhand rolled 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.

A legislation to this effect 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, enshrined in our Constitution.

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 B R 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.

Present Situation

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.

Issues of divorce of live-in relationships

With regard to divorce, the UCC in Uttarrakhand brings in provisions that penalise extrajudicial divorce modes —including talaq-us-sunnat, talaq-i-biddat, khula, maba’arat, and zihar.

Before going into the preamble and the 392 sections of Uttarakhand’s Uniform Civil Code law, it is important to note that the pronouncement of the Supreme Court and the Law Commission of India have been at variance on this subject.

While the SC took a positive stance on the UCC in cases like Shah Bano (1985), Sarla Mudgal (1995), John Vallamattom (2003), and Jose Paulo Coutinho (2019), the 21st Law Commission, led by Justice Balbir Singh Chauhan, stated in 2018 that a uniform civil code wasn’t necessary or desirable at this stage, emphasising the coexistence of secularism with the country’s plurality.

It instead recommended amending the discriminatory practices within existing personal laws.

The next Law Commission, under Justice Rituraj Awasthi, sought suggestions from various stakeholders, including the public and religious organisations, on the matter of the UCC. Over one crore representations were received, but the final recommendation is still awaited. It shows that this is indeed an issue where individuals, institutions, and organisations have very clear and pronounced views, which are, more often than not, at complete variance from each other.

Let us now examine the Uttarakhand Uniform Civil Code Act which has four parts, each dealing with laws relating to marriage and divorce (Part 1), succession (Part 2), live-in relationships (Part 3), and miscellaneous (Part 4). Some of the salient features include prohibition of practices like polygamy, Halala, Iddat, Triple Talaq, and child marriage across all religious communities. There is a uniform age of marriage for both men and women at 21 and 18 years, respectively. The solemnisation of marriages can be done as per the ceremonies or rituals applicable to the parties involved, thereby ensuring that individuals can uphold their traditions while adhering to the principles of the UCC.

Marriages can be conducted between a man and a woman according to their religious customs, rites, and ceremonies, such as ‘saptapadi’, ‘ashirvad’, ‘nikah’, ‘holy union’ and ‘anand karaj’, as specified in laws like The Anand Marriage Act of 1909, Special Marriage Act of 1954, and the Arya Marriage Validation Act of 1937, among others.

With regard to divorce, the UCC brings in provisions that penalise extrajudicial divorce modes — including talaq-us-sunnat, talaq-i-biddat, khula, maba’arat, and zihar. Practices that are not prescribed under the UCC, including customary divorce deeds or panchayat divorces, are penalised and punishable with imprisonment.

Also, any custom imposing conditions on remarriage between divorced spouses stands criminalised. As a concession to the Muslim cultural practices, mehr and dower are acknowledged as payable in addition to any maintenance under the UCC.

Succession and inheritance

The UCC aims to provide equal property rights to women — including Muslim women — previously entitled to only a 25 per cent share under personal laws. But with regard to guardianship and custody, prevailing positions under personal laws have been retained. The father is designated as the guardian, while the mother is the custodian, with the custody of children up to the age of five ordinarily granted to the mother.

The Hindu Adoptions and Maintenance Act 1956 and the Juvenile Justice Act 2015 will continue to be applicable. However, the UCC is silent about the status of Hindu Undivided Families (HUFs), which are treated as a legal entity of lineal descendants jointly owning property, managed by a karta (leader). This offers distinct tax advantages to HUFs that are not available to members of other religions.

Live-in relationships

However, the most interesting, innovative, and controversial section of the UCC is on the registration of live-in relationships. Although some protection was already available to women in live-in relationships under the Protection of Women from Domestic Violence Act 2005, the UCC gives live-in relationships the status of quasi-marriage.

On the positive side, it ensures that no offspring from such relationships is considered illegitimate. It is also an acknowledgement that young men and women are opting to stay together in explicit sexual union outside the domain of scriptural sanction. It is an acceptance of sexual liberation among the youth.

But certain provisions like compulsory registration and that parents of live-in couples aged between 18 and 21 years must be informed of their relationship, infantilises this relationship. The requirement for mandatory registration of live-in relationships is a significant intrusion into individuals’ privacy and autonomy. Those who fail to comply, including providing false information, can be punished with imprisonment or a fine of up to Rs 25,000, or both.

Additionally, Section 386 of the UCC allows third-party complaints and intrusive surveillance to perpetuate moral policing and violate individuals’ privacy rights, particularly affecting women in inter-faith relationships. The legislation poses significant challenges for these couples, potentially preventing them from renting accommodations without providing their registration documents to landlords.

Issue of conjugal rights

Another serious critique of the UCC is the retention of restitution of conjugal rights. Dr Saumya Uma, a professor at OP Jindal Global University, in an opinion piece, wrote that the constitutional validity of this provision has been challenged in the Supreme Court. She pointed out that “Clause 21 of the Bill is a copy paste of section 9 of the Hindu Marriage Act and section 22 of the Special Marriage Act”.

“This is a regressive provision with colonial origin, that legally compels unwilling spouses to live together in the name of cohabitation, consortium, companionship and conjugality. Though on the face of it, it is a gender neutral provision, it has disproportionate and adverse ramifications for the wife who may be subjected to rape and forcible pregnancy by the husband,” she added.

It also takes away the woman’s agency to walk out of a brutal and harsh marriage. Unwittingly, this provision will now be applicable to women of all faiths in Uttarakhand. Mercifully, this cannot be invoked on a partner in a live-in relationship.

Last, but not the least, the UCC is silent about all matters relating to persons who identify themselves as LGBTQ+, as if they do not exist. In 2023, the Supreme Court held the view that framing a new law to recognise LGBTQ+ can be done by either making all marriage and family related laws — including those of adoption — gender neutral, or by creating a Special Marriage Act–like statute in gender neutral terms. It is surprising that in a state where the exploits of Mahabharat’s Arjun living as a eunuch during his exile are legend, the LGBTQ+ community’s very existence has been extinguished from the canons of legal jurisprudence.

(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)