| Talk about a Uniform Civil Code has picked up pace in recent times. But what would such a code look like, and shouldn’t we reimagine it to focus on equity for women and gender minorities? Read on... The Big Story Time to reimagine the Uniform Civil Code?  Source: PTI That hardy perennial, the Uniform Civil Code (UCC), popping up with regularity ever since it was written as a desirable goal in the Constitution 74 years ago, has in the past few months been gaining traction. A private member’s bill to implement it nationwide was listed for introduction in the Lok Sabha during the Budget session and comes just weeks after a similar one was introduced in the Rajya Sabha. In January, the Supreme Court clarified that state governments indeed had the power to examine its feasibility. Going back to July last year, a five-member committee headed by retired Supreme Court judge Ranjana Desai, met to consider a UCC in BJP-ruled Uttarakhand. And ahead of the assembly polls in Gujarat, the state government in October cleared a proposal to set up a committee to implement a UCC. In April, in poll-bound Himachal Pradesh, the then BJP-ruled government said it would look into it. As of now, Goa is the only state in India to have a UCC. Common cause A UCC has been a core ideological objective of the BJP for decades and finds place in its 2019 election manifesto. At its heart is a proposal to implement a common personal law for all citizens. At the time of Independence, different communities had been following their personal religious customs in matters relating to marriage, divorce, adoption and inheritance. The founding fathers and mothers left UCC as a “directive principle of State policy”, something that was eventually desirable but to be achieved when the time was right. During the Constituent Assembly debates, it was the Left parties that pushed for a common code while the Right remained opposed to any attempt to codify Hindu law, explains Saumya Saxena, legal scholar and author, Divorce and Democracy: A History of Personal Law in Post-Independence India. The codification of Hindu personal laws went ahead anyway in the 1950s, despite protests and opposition from the Hindu Mahasabha. Six different laws were passed between 1954 and 1958, codifying Hindu family law, banning polygamy, and introducing divorce as well as women’s right to inherit property. Through the past decades the UCC has been seen as a potentially contentious issue, framed in terms of identity politics with minority religious groups opposing it and liberal thinkers arguing that it would force brute majoritarianism on minorities. On Sunday, the All India Muslim Personal Law Board passed a resolution against a UCC saying it would deprive citizens of the privileges provided to them by personal laws. Personal laws have changed even without a UCC  Source: ipleaders In 1986, following the Supreme Court’s historic Shah Bano verdict the previous year in which it ruled that a Muslim husband was obliged to maintain his wife beyond the roughly three-month period mandated by Muslim personal law, the Rajiv Gandhi government brought in the Muslim Women (Protection on Divorce Act). More recently, instant triple talaq, allowed under Muslim personal law, was challenged and changed through judicial intervention. Parliament followed through by making it a criminal offence. Christian marriage and divorce laws have gone through amendments to reflect gender parity. Earlier, for instance, if women sought a divorce on the grounds of adultery, they needed to prove cruelty as well (men had only to provide proof of adultery). In 2001, this additional requirement for women was scrapped. In 2017, the Supreme Court clarified that churches did not have the power to grant divorce decrees; only civil courts could do so. In 2005, Hindu women were given the right to ancestral property. As recently 2020, the Supreme Court ruled that this right would apply retrospectively. What will a common code look like? In a country that has traditionally celebrated diversity, can there be a one-law-fits-all? “Globally, there is a move towards protecting diversity,” says Saumya Saxena who was an advisor to a 2018 Law Commission consultation paper set up to look into reform of family law. “Secularism cannot be contradictory to plurality. It only ensures peaceful co-existence of cultural differences,” noted the Law Commission paper. How, for instance, will a UCC accommodate the customary tribal laws of the north-east states which are promised and protected under the sixth schedule of the Constitution and where inheritance of property among the Garo and Khasi tribes in Meghalaya follows a female line of descent where the youngest daughter inherits? In the end, the paper concluded that a UCC is “neither necessary nor desirable at this stage” and argued for reform of family laws of every religion through amendments and codification. Keeping with the times  Source: Getty images Going forward, can the UCC debate be reimagined to include gender rights and the rights of sexual minorities? No religion grants equal status to women or recognises the rights of the LGBTQ community in the manner in which our Constitution guarantees these rights. “Various aspect of prevailing personal laws disprivilege women,” notes the Law Commission paper. “It is discrimination and not difference which lies at the root of inequality.” Seventy four years after the Constitution was adopted, a new generation of citizens is increasingly demanding an ending to discrimination. The demand for same-sex marriage is already in the courts. The 2019 Transgender Persons (Protection of Rights) Act recognises intersex variations and provides protections against discrimination in education, employment and healthcare. But it has also been criticised for mandating legal gender recognition that lags behind more progressive laws elsewhere that allow transgender people to self-identify. Polygamy and nikaah halala, an obnoxious practice under which a woman wishing to remarry a former husband must first have an intervening marriage that is consummated, has been languishing in the courts since the triple talaq matter when the judges said they didn’t have the time to take these issues up. | 
