From the Editor-in-Chief

Just over a month ago, Prime Minister Narendra Modi raised the pitch for a Uniform Civil Code (UCC) with a rhetorical question: “Imagine there is one law for a member of a family and a different law for another member living in the same house, can such a house run?” Speaking in Bhopal, capital of poll-bound Madhya Pradesh, he was sharpening focus on an issue that’s found new life in the past year. In March 2022, the Uttarakhand government resolved to bring a UCC at the state level. The panel it set up is almost ready to hand over its draft: a meeting between the PM and Uttarakhand CM Pushkar Singh Dhami on July 4 showed the high priority levels. At the Centre, the 22nd Law Commission, too, solicited public opinions on the issue on June 14. Although the 21st Law Commission had in 2018 deemed a uniform civil code “undesirable” at this stage, a reference by the Union law ministry opened up the process again. A thorny question that has remained unanswered from before the birth of the Republic has thus returned to the centre stage, with just months left to go for four state elections this year and the general election next summer.

Raking up a contentious pan-India theme—that too a religion-tinged one—is helpful for the BJP and part of its playbook. It is one of the triad of promises central to its manifesto since 1989. The other two—Ayodhya and Article 370—have been practically accomplished. Reaching for a UCC now is a natural progression in fulfilling its core political programme. Besides, it hands the BJP other crucial advantages. Pushing for a UCC cannot be said to be incongruent with constitutional ethics. It is part of the Directive Principles—a set of goals deemed desirable for the Indian Republic. Having one set of civil laws to govern marriage, divorce, inheritance and adoption for every Indian, taking precedence over religious laws and customs, is fundamentally democratic. This is why the Supreme Court has on occasion expressed itself in its favour, notably during the Shah Bano judgment of 1985. For this reason, the UCC debate puts Opposition parties in some discomfiture. Parties that oppose the UCC run the risk of being seen as appeasing Muslims and thus alienating Hindus; if they endorse it, they antagonise the Muslim vote. The BJP has put the other parties between a rock and a hard place.

As Executive Editor Kaushik Deka explains in our cover story this week, the state of play favours the BJP. After two successive defeats in the Himachal Pradesh and Karnataka assembly elections, the BJP is somewhat on the backfoot and needs a clever electoral stratagem. The Opposition’s unification moves are an additional threat, so any issue on which to polarise opinions within that field is welcome. Signs are that it is happening. The Congress has taken a ‘wait and watch’ stance and asked for a draft before making its opinion known. Other constituents of the ‘INDIA’ bloc such as the TMC, DMK, JD(U) and CPI(M) have either spoken explicitly against it or concealed their ambivalence by calling it a diversionary tactic. Outside of that, Telangana’s ruling party BRS has opposed it, as has the SAD. BSP chief Mayawati has dilly-dallied. Two INDIA members have also expressed support for the UCC—the Uddhav Thackeray faction of the Shiv Sena, and the Aam Aadmi Party (AAP) in principle. However, AAP’s Punjab chief minister Bhagwant Mann attacked the BJP for bringing up another divisive religious issue close to elections. The overall mood is one of awkwardness. As Congress Rajya Sabha MP P. Chidambaram says: “The prime minister has framed the issue in a manner permitting only a binary response. A nuanced approach will be to start a meaningful conversation onâ€æall personal laws, the Muslim law included. The key is ‘reform’, not ‘uniform’.”

On the practical side, paradoxically, the UCC is not an immediately realisable goal. There is very little time to put up a good Bill before Parliament in its present term. Only the winter session is left for serious legislative business ahead of the 2024 election. And the way forward does not promise an early arrival. Upwards of 10 million responses have landed after the 22nd Law Commission sought opinions from all stakeholders in its June 14 notification. It will take months to wade through those, hold subsequent public discussions, and formulate a report. Even assuming the Union government manages to bring in a Bill, the BJP does not have the requisite numbers in the Rajya Sabha and will need backing from parties that are friendly towards the NDA but against the UCC, like the YSR Congress. Suppose it passes even that stage, the hurdles thereafter look insurmountable. Since it relates to matters on the Concurrent List, a UCC will require a constitutional amendment—at least half of India’s assemblies will have to ratify it. Presently, the BJP controls only 10 out of 30 assemblies. The question, therefore, is purely theoretical at this stage. This suits the Modi government. Having set the cat among the pigeons, it can excuse itself from the hard toil of bringing in legislation and concentrate on keeping the issue simmering at the level of rhetoric, till the general election.

There are two basic tracks on which the idea of a UCC has moved historically. One is what you could call the track of ‘idealism’. This mode of thinking has the luxury of starting with a blank slate. And from scratch, it tries to conceive of the best law in theory. A unitary design, with no uneven areas or messy exemptions. The other track is grounded in realism. Allowing its minority populations the security of existence without imposing anything repugnant to their way of life is a sovereign guarantee that India extends. The Freedom of Religion relates to Fundamental Rights, which are inviolable. The Directive Principles, on the other hand, are not made obligatory on the State. This is why Ambedkar made the adoption of UCC ‘voluntary’, and why the 21st Law Commission in 2018 called it “undesirable”, plumping for legal pluralism and reform within religion-based personal laws instead. The UCC is not only a Hindu-Muslim affair, as it is often projected. Considering the diversity of India, it affects many other communities, even the Hindus. There is the ticklish matter of the Hindu Undivided Family (HUF), which is peculiar to Hindus, and many of its beneficiaries would be BJP supporters. Undoubtedly, a progressive democratic society must have laws that apply to all equally and deliver gender equity coupled with justice. But given India’s complexity, diversity and history, combined with the tendency for communal flare-ups, those in power must tread carefully and not in haste. There is a danger of stirring a hornet’s nest, which can go out of hand. This, India cannot afford at this stage. We have a panel of eminent experts who weigh in on the issues such a law entails. The way forward is to develop a consensus across party lines before enacting any such legislation.