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Just as King Vikramaditya Let the Vetal Go, We Too Must Let the Idea of a UCC Go

Mrinal Pande

All of us in India grew up listening to, reading or watching some version of Simhasan Batteesee – thirty two tales about the wise king Vikramaditya. We remember how under instructions from a tantric guru, Vikramaditya was to cut loose a vetal, hanging upside down from a peepal tree, and carry the corpse without uttering a word to a cremation ground for a special ritual.

But each time he tried, the wily vetal forced the good king to answer intricate questions by predicting terrible reprisals if he didn’t. And as soon as Vikramaditya answered him, the vetal flew back to the tree, chuckling.

A perfect Uniform Civil Code (or the UCC, a set of common laws that shall govern marriage, inheritance, adoption and divorce for all Indians) has proved to be another wily vetal for our lawmakers.

Each time the state makes a forceful push to frame the UCC once and for all, wild debates erupt about its various legal, political, social and constitutional complexities and ultimately it is decided to let the vetal fly back chuckling and hang upside down.

“Vikram, main tere buss mein aaney wala nahin!” (Thou can’t control me, Vikram!) was the punchline with which the popular TV series Vikram aur Betaal ended.

Over 75 years ago, we the people of India gave ourselves a great constitution that envisioned a sovereign democratic republic. It gave each citizen certain fundamental rights. This was followed by a chapter on Directive Principles, which instructed the state to implement certain measures in due course.

Among them was the framing of a UCC. But no sooner did the debate begin, a furore arose with the Muslims, Hindus, Christians and tribals all asserting their right to protect their own personal spaces governed by their ancient traditions and religions. And the vetal flew off to hang upside down for a few more years.

The first time the vetal was cut loose was during the debate on the Hindu Code Bill in 1948. The representatives of the women’s movement, like Rajkumari Amrit Kaur (a Christian) and Hansa Ben Mehta (a Hindu), were for a UCC. But there was a sharp polarisation of views among Hindus of all classes over marital laws for Hindus guided by their religion.

The proposal for banning bigamy among only Hindus even brought the conservative president of the nation, Dr Rajendra Prasad and Prime Minister Jawaharlal Nehru into a near confrontation, with the latter even offering to resign. Other senior Hindu leaders like Sardar Patel, Dr P. Sitaramayya and P.S. Tandon also opposed the Hindu Code Bill.

Other opponents (all male) felt that this Bill could leave India with “an army of unmarried women” and also that the prohibition of bigamy could promote a mass conversion of Hindus to Islam, which permitted talaq.

Ultimately, it was decided to let the issue die during the parliament’s September session in 1951, and despite Dr Ambedkar arguing that the Hindu Code Bill in its entirety guaranteed women true gender justice, the law makers let the vetal go back. In 1955, the partially cleared Hindu Code Bill was pushed through. Guardianship, maintenance and adoption laws staggered in by 1956.

But the resistance to a Uniform Civil Code remained firm. The argument was that a largely Hindu parliament could not speak for all communities, and that it was instead right for them to come out and ask for change. The Shah Bano case and its long aftermath revealed the rigidity over the matter of amending personal laws. The vetal flew off chuckling once again and hung upside down! Catch me Vikram, if you can!

In 2000, when the 15th law commission submitted several reports to the government, the late Justice Leila Seth suggested that they also take up the matter of a Uniform Civil Code, and remove several anomalies and ambiguities that remained.

To that, Justice Jeevan Reddy – the commission’s chairman – replied that “this is not the right time”. It was only in 2005 that the Hindu Succession Act was amended and subsequently Hindu daughters were given equal coparceny rights to ancestral property.

A few weeks ago, while addressing his party’s booth-level workers, the powerful BJP leader and prime minister of the nation has once again sought to cut the UCC vetal loose. But this once-bitterly divisive debate has already been triggered off by poll campaigns that opened old wounds. There are still assembly elections scheduled in several crucial states this year, followed by the grand finale of general elections in 2024.

The no holds barred campaigning on all sides, aided and abetted by social media, are likely to vitiate the public space and make any nuanced, fair and impartial debate on the UCC impossible.

The BJP is in a hurry to bring in a UCC that was a poll promise in its ‘core’ manifesto, along with the Ram Mandir and Article 370. But the vetal’s constant flights back to the tree of tradition reveal that while creating a UCC for a country like India – home to representatives of all the world’s major religions and diverse tribal personal laws – there will be no easy answers and remedies.

Though it is being sold to the gullible as a firm way of stopping bigamy among the Muslims, few realise that a UCC will also impact several touchy areas among the Hindu majority.

Once true equality before the law is confirmed, the Hindu majority that is still reluctant to consider marital rape as a punishable offence, is constantly whining about the need to soften protective laws for women and children (like 498A and POCSO), is dead set against gay marriage and accepts the notorious ‘encounters’ as vigilante justice, is going to feel cheated.

There will be other embarrassing clashes: can the law permit marriage between people of different faiths but retain conversions as a punishable offence? Can temples lose the right to let the priests decide who can enter the sanctum sanctorum?

The 2018 (21st) law commission, after consulting over 75,000 responses and examining the issue at length, noted that their consultations revealed some astonishing facts, like women’s groups that supported equality before the law holding that their religious identity was equally important to them. To them, personal laws pertaining to language, culture etc. represented the freedom to practice their religion, and so they resented changes there.

The commission therefore concluded that a UCC is neither necessary nor desirable at this stage. The best way forward would be to retain the diversity of personal laws, and then deal only with laws that are discriminatory, like triple talaq. The 21st law commission is thus well aware of the complexities involved.

The government has yet to put its own draft for a UCC on the table; it will be interesting to see how that draft treats the section under the Directive Principles of State Policy which deals with personal laws. Will the dissolution of the joint Hindu family system create an urgent need for revisiting taxation laws?

Obviously, great patience, persuasion and depoliticisation of the issue are needed at this point. Are these in sufficient supply while the country is rocked by so many issues of national human rights and strife, and divisive rioting along the eastern border states? A narrow 30-day window granted for public consultations by the law commission currently does not appear large enough.

The last story in the Vetal Pacheesee is the most interesting. The vetal, finally taking pity on the exhausted king, confides to him that he asked for answers to 32 complex questions because he was told those alone could let his spirit out of his rotting corpse. But now that he is free thanks to Vikram’s sagacity, he’d like to share another secret with him.

The tantric guru, who had promised Vikram great powers in lieu of the vetal, was actually going to kill the king after he delivered. He’d then use Vikram’s royal blood for enhancing his own powers. “Forget about this venture and let’s both get lost,” the vetal said. “Run, Vikram, run!”

And the king did just that. I think we as a nation need to do the same with the UCC. It may not give us better laws, but sacrifice us to political ambitions.

Cultural diversity, as the 21st law commission said, cannot be compromised to the extent that an urge for uniformity becomes the reason for a threat to the territorial integrity of the democratic nation. The American theologist Reinhold Niebuhr corroborates this: “man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.”

So let us say goodbye to the vetal. We set it free, and in exchange, it will set our democracy free.

(Mrinal Pande is a writer and veteran journalist. Courtesy: The Wire.)

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The UCC Bogey Is Raked Up for Muslim Bashing and to Serve Electoral Needs: Flavia Agnes

Abhay Kumar

Lawyer and scholar Flavia Agnes is disappointed by the false impression that is being created that only Muslims are opposed to the proposed Uniform Civil Code (UCC). In an online interview, she told the author that the truth is that Adivasis, the people of Mizoram, and even some Hindu communities are against it.

The author of widely acclaimed books on family laws, Agnes criticised the Narendra Modi government for “doing nothing” to implement the 21st Law Commission report to achieve gender equality; yet the controversial issue of the UCC is being whipped up to serve political needs. She, therefore, termed the call for the UCC, a “political act”.

According to her, the call for seeking opinions on the UCC aims at agitating the Muslim leadership and reaping political dividends for the ruling party. Through Muslim bashing, the ground for furthering right-wing politics is being prepared, she says. “As the issue gets controversial, it will be benefiting the ruling party. This is the main purpose of calling for opinions. The whole idea is to bring the UCC controversy into the political arena in the context of the elections that are coming soon,” Agnes said.

Edited excerpts from the interview follow.

Chequered past of the UCC

Since the 1980s, the BJP’s electoral manifesto has promised the implementation of the UCC. However, the party knows that its imposition is easier said than done. While the previous BJP governments did take up the issue, the current Modi government has been more vigorous in pursuing it. This issue of the UCC has allowed the forces of the Hindu right to attack their political opponents, including the Congress, for being ‘silent’ on the question of the oppression of Muslim women due to catering to a minority ‘vote bank’. Recently, a key RSS organisation said that it would run an awareness campaign for the UCC among Muslims as it would address the backwardness of Muslims. On many occasions, the Hindu right has presented the implementation of the UCC as a solution to the “dangerous trend” of the rising Muslim population.

However, they have deliberately hidden the information that there has been a sharp decline in the population growth of Muslims. In 2001, the growth rate of the Muslim population was 29%, which fell sharply to 24% in 2011. Moreover, Muslims are adopting a large number of family planning measures. Social and economic factors have little to do with religion. Yet, one of the most anti-democratic and anti-Muslim statements came from RSS ideologue, M.G. Vaidya, in 2016. In a piece for the Indian Express in November 2016, he threatened Muslims and other minorities, calling for their right to vote to be taken away if they don’t comply with the idea of the UCC. Vaidya spewed venom:

“…those who do not want to be governed by Article 44 [the UCC] will forfeit their right to vote in the elections to the state legislature and Parliament.”

Acting on “the reference” of the Ministry of Law and Justice dated June 17, 2016, the 21st Law Commission began “examining” the “vast matters” of the UCC and prepared a detailed report after conducting research and holding consultations with experts. Two years later on August 31, 2018, the Commission published an 182-page-long consultation paper on “Reform of Family Law”.

UCC ‘neither necessary nor desirable’: 21st Law Commission

Flavia Agnes even questioned the intention of the 22nd Law Commission to solicit people’s views on the UCC, even as the previous Law Commission’s compressive report on the same issue is gathering dust. As she put it, “The issue of UCC has been decided by the 21st Law Commission. But the 22nd Law Commission is again asking whether you want UCC. But what the Civil Code contains, we have no idea. The 22nd Law Commission has also no idea. So, it is a very complicated issue.”

The 21st Law Commission report contains a lot of suggestions for ending discrimination and giving economic rights to women while opposing the imposition of the UCC. For example, on the first page of the consultation paper, the 21st Law Commission made it clear that no consensus could emerge on the UCC, and therefore, the need of the hour is “to preserve the diversity” without contradicting the fundamental rights. The consultation paper said:

“In the absence of any consensus on a uniform civil code the Commission felt that the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India.”

Crucially, the 21st Law Commission not only called the UCC “neither necessary nor desirable,” but also supported ending gender discrimination and doing away with inequality:

“This Commission has therefore dealt with discriminatory laws rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.”

Against this background, Flavia Agnes expressed disappointment that while the government did not take any step on the 21st Law Commission Report for ending gender discrimination and the 22nd Law Commission is now raking up the issue of UCC by seeking views and opinions from the public at large. By citing the reason that the consultation paper is now more than three-years-old, the present Law Commission has again solicited the views on the UCC by issuing a notice on June 14. The Law Commission was controversially kept vacant for years for its tenure to be over and soon after belated appointments were made, it was awarded an extension till August 31, 2024 on February 20, 2023.

When asked to comment on how a public institution like the Law Commission was being misused for political gains, Agnes said, “I am very sad. Women’s rights are not looked upon properly.” However, she appreciated the efforts made by the 21st Law Commission while examining the issues of gender discrimination. “Earlier, the 21st Law Commission spent a lot of time and took the opinions of a lot of people and brought out a very comprehensive report in August 2018.”

Giving details about the main features of the 2018 consultation report, Agnes said that it “concentrated on economic rights” and “non-discrimination”. The 21st Law Commission report, according to her, aimed at “weeding out” discrimination wherever it existed in various personal laws. Moreover, it underscored the fact that the Hindu undivided family property was “discriminatory” against women but it was used for “tax-evasion only by Hindus” and called for ending this practice.

According to her, “The main concern of the 21st Law Commission was that the Hindu undivided family property should be scrapped and the tax benefits to Hindus should be taken out. Similarly, it also suggested the codification of Muslim Personal Laws regarding property rights and the difference between Sunnis and Shias should not be there. Women and widows including child-less widows should get their property rights. There are also suggestions regarding Christians and Parsis. If a Parsi marries outside the Parsi community, she loses her right. The recommendation was such practices should not be permitted. Regarding Christians, whatever discrimination regarding widows and inheritance exists, it should go. Even regarding the Special Marriage Act, whatever discrimination is there, that should be taken out.”

While calling these suggestions “important”, Agnes, who is the co-founder of the “legal and cultural resource centre” Majlis, said that another key suggestion of the 21st Law Commission was about the division of matrimonial property upon divorce – which does not exist anywhere in law and it recommended “equal division of property acquired after marriage”. Four years after the publication of the report, the Union government has not moved a finger.

“And suddenly, they say they want to have a fresh look… UCC is a bogey. It is to be whipped up to serve political needs. Otherwise, the government is not interested at all. Government is not interested in gender justice, otherwise, it would have implemented a small recommendation from the 21st Law Commission report… Even the media likes controversies. And an impression is being created that only Muslims are opposing the UCC and not the other people.”

Tribal communities, Hindus and more: Many sections oppose UCC

However, she said that the reality was different. She maintains that it is wrong to say that only the Muslim community is opposing the UCC. She expressed disappointment that the media was not disclosing the fact that opposition is widespread. As she put it:

“A false impression is being created that other people [minus Muslims] are welcoming it. But the truth is that all communities are opposing. If the Hindu undivided family property is touched, entire Hindu communities will be against it. But these aspects are not highlighted and only the [issues of] polygamy [among Muslims], triple talaq and maintenance of divorced Muslim wives are highlighted and thereby a controversy is created.”

Furthermore, Agnes said Adivasi communities and people from Mizoram were also against the UCC. “All the tribal communities have their laws. Some are pro-women and some are not. And they have local councils and they will determine what will apply to them and what will not. Referring to the northeastern states, she said that the people of Mizoram have also opposed the UCC and it should not apply to them. She said that various provisions of the constitution protect tribal communities and their land rights. “In a situation of such diverse customs and practices and customary laws, which are very vibrant and followed, how are you going to overturn them with the UCC brought in with the particular mindset of the Hindus? It is impossible.”

Fundamental rights vs directive principles?

Another persisting controversy around the UCC is whether it is about pitching Fundamental Rights versus Directive Principles. For instance, the UCC is justified by its supporters by citing the Directive Principles of State Policy given in part IV of the constitution.

But unlike fundamental rights, the Directive Principles of State Policy are simply guidelines for governments. They are not enforceable in court until they are made law. Article 44 of the Directive Principle of State Policy, thus, asks the state “to endeavour to secure for citizens a Uniform Civil Code throughout the territory of India”. On the contrary, the fundamental rights guarantee religious freedom and cultural diversity.

The supporters of the Muslim personal laws base their arguments on fundamental rights, unlike the supporters of the UCC. As she is regarded as an authority on legal and constitutional matters, Flavia Agnes was asked about the fundamental rights and the Directive Principles clashing. She said that fundamental rights were supreme. “The right to practice religion and customary laws are part of the fundamental rights. And fundamental rights are more important. One cannot stumble over people’s customary practices and impose the UCC. India is a diverse and pluralistic country. Even Hindu laws are not uniformly applicable. Hindu laws have ample provision for customary practices. There are so many exceptions in the Hindu laws,” she said.

Threat to federalism too

Agnes further argues that apart from posing a threat to cultural diversity and pluralism, the imposition of the UCC is also against the federal structure of the Constitution itself. Elaborating on this point, she stated that the personal laws are listed in the concurrent list of the 7th Schedule of the Constitution and both the Centre and the states have the power to legislate on them. Given that, the law made from the top and its imposition throughout the country would go against the federal structure of the Constitution. As she explained her argument, “Even the CrPC [the Criminal Procedure Code] and IPC [Indian Penal Code] are not uniformly practised. Every state has made its amendments. How could you have the Uniform Civil Code that is brought out by the Centre and which will be thrust upon the states? It is also going to affect the protection given to the tribal community”.

On the Hindu right’s allegation that the opposition to the UCC was aimed at protecting the interests of Muslim men against women, she clarified, “I am not for Muslims against the rights of Muslim women. It is misunderstood that I am for Muslim leadership against Muslim women. I am for women’s rights everywhere, including the Muslim community.” Linked to this is the conflict between community rights and gender rights. Elaborating, she said, “Gender rights become more important and as discrimination against women exists everywhere; we need to go against community rights to protect gender rights if the need arises.”

Busting false claims

The lawyer also busted the myth that Hindu laws, unlike Muslim personal laws, were “all good and uniform”. During her interview, she underlined the lack of uniformity among Hindu laws and the concessions given to Hindus under personal laws. “Hindu laws are supposed to be uniform but they are not so. State-wise, many amendments are conceding to customary and local practices.”

But what about the claim of the BJP that it has liberated Muslim women by launching a campaign against triple talaq? Even support for the UCC is being sought by the Hindu right in the name of ensuring gender justice for Muslim women. When asked whether the BJP had initiated a progressive move over triple talaq, she said that the BJP had rather “victimised the Muslim community”. Referring to the laws criminalising the act of instant divorce – which has already been outlawed – by which a Muslim man may be imprisoned, she said, “After the Supreme Court decision on triple talaq, there was no need to criminalise triple talaq. By sending Muslim men to jail, the BJP harms Muslim women as well. Once the man goes to jail, he is not in a position to support his wife. Therefore, it is not against Muslim men but also harms Muslim women. So, it was not a good move at all. It was an anti-community act and it is not pro-women.”

Questions for Muslim Personal Law Board

However, she has also criticised the Muslim ‘leadership’ as well as previous governments for not doing away with the practice of triple talaq even though there was a demand from Muslim women to the All India Muslim Personal Law Board (AIMPLB). “They could have done away with the triple talaq before the Supreme Court intervened. There was a demand from the Muslim women themselves before the Board for amendment. Although they have [AIMPLB] said that such a practice [triple talaq] is against the Quran, there was no declaration against it. That has caused a lot of harm to the Muslim community and given the scope to the BJP to take up these issues, saying that Muslim leadership is regressive and they [the BJP] needed to step in to protect Muslim women.”

When asked to comment on the claim of the AIMPLB that Muslim personal laws were ‘divine’ and therefore could not be amended and interfered with, she rejected such a claim. After the Supreme Court judgment on triple talaq, the Board was present and it accepted the decision. “They [the Board] had conceded the authority of the Supreme Court to examine the issue. So, what they say is not important. Since the Supreme Court decision came and it called triple talaq invalid, it superseded the decision of the Board. Since the Board was present there in the Court, it is a positive sign that they have accepted the Court’s authority. Therefore, any issue can go to the Supreme Court and it can decide on it. So, the claim that Muslim laws are ‘divine’ and cannot be touched does not hold anymore. Similarly, it cannot be claimed that Hindu laws or Christian laws are divine.”

No ‘one nation, one law’

Flavia Agnes also opposed the BJP’s slogan of ‘one nation, one law’. Instead, she said that the cardinal question was to choose between imposing uniformity and ensuring gender justice. “And if the goal is to achieve gender justice, then the need of the hour is to go back to the 21st Law Commission report and see where changes can happen.”

(Abhay Kumar is an independent journalist. Awarded in 2020 by JNU, his doctoral thesis is Modern State, Secular Law and the Minorities: The Cultural Politics of All India Muslim Personal Law Board (1973-2010). Courtesy: The Wire.)