Indian states to kick off plans for uniform civil code to replace religion-based laws

Protesters hold placards during a demonstration against anti-Muslim violence and hate crimes in New Delhi, on April 16, 2022. PHOTO: AFP

BANGALORE - Several Indian states will adopt a uniform civil code to replace religion-based personal laws - a move that could herald a nationwide roll-out before parliamentary elections in 2024.

Lawmakers in Uttar Pradesh, Uttarakhand and Himachal Pradesh in the north and Assam in the north-east, all ruled by Prime Minister Narendra Modi's Bharatiya Janata Party (BJP), have said they want a new personal law that applies across religions.

The uniform code is the only unfinished bit of the BJP's three loudest stated Hindu nationalist goals that also included the revocation of Jammu and Kashmir state's autonomy and the building of a Hindu temple on the site of a razed mosque in Uttar Pradesh's Ayodhya.

The Modi government removed restive Kashmir's special autonomy in August 2019, and the prime minister laid the foundation stone for a temple for Hindu deity, Lord Ram, in a nationally televised ceremony in Ayodhya in August 2020.

A uniform civil code, however, might be the most complex objective yet, especially because of its far-reaching effects.

Matters of marriage, divorce, alimony, adoption and inheritance in India are mainly governed by different religious rules, only some of which are codified.

Discussions on a uniform code date back to India's independence movement. When the Constitution was drafted in 1950, it included a nudge to the state to "endeavour to secure for the citizens a uniform civil code". Courts have often bemoaned the lack of a uniform personal law.

What such a law would look like, though, is far from clear. India's thicket of customary and religious practices also means that even existing laws are not applied equally.

Lawyer Alok Prasanna Kumar, co-founder of the think-tank Vidhi Centre for Legal Policy, said that even the Hindu code, which sought to create a uniform law governing all Hindus, is not uniform in some of the most fundamental aspects of family law.

"The validity of a marriage is linked to the customs and ceremonies of the particular community; the inheritance rights of the members of the family are different for communities in Kerala and Tamil Nadu; who is capable of being adopted also depends on the custom and usage," he wrote in the Economic and Political Weekly in 2016, the last time a uniform code was debated nationwide. It was when six women had challenged the Muslim practice of instant divorce before the Supreme Court.

A uniform code would also have to overcome existing legal protections for indigenous customs in parts of north-eastern India.

Legal scholars say that the personal laws of all religions in India are biased against women in different ways and can do with reform.

The BJP's election manifesto for the 2019 parliamentary polls, which it swept with a majority, said it believes "there cannot be gender equality till such time India adopts a uniform civil code."

However, BJP lawmakers have focused mainly on gender bias in Islamic personal law.

Assam's Chief Minister Himanta Biswa Sarma stressed last week that a uniform code was needed to guard Muslim women's rights. "If Uniform Civil Code doesn't get implemented, polygamy system will continue; a (Muslim) man will marry three or four times, curtailing the fundamental rights of a woman," he said.

The All-India Muslim Personal Law Board, an influential conservative group, has said a uniform code would be "anti-minority".

But it isn't just conservative voices. Muslim women's groups that campaign for gender-just personal laws are also wary of the move.

Activist Zakia Soman, who successfully challenged the Muslim practice of instant divorce before the Supreme Court in 2017, said: "I don't think a uniform civil code is feasible today, and one of the reasons is the kind of onslaught on the Muslim community today, the kind of religious polarisation, and the silence of those in government."

Recent weeks have seen a surge of anti-Muslim hate speech and attacks across India. In March, the Karnataka high court upheld a ban on hijab in public schools instituted by the BJP-ruled Karnataka state government.

Bloomberg reported last week that the Modi administration was weighing the political costs of a uniform civil code to gauge potential backlash before a nationwide roll-out.

Many women's rights activists say what India really needs is uniformity of rights within the family, and not uniformity of laws.

Their positions were echoed by India's Law Commission in 2018, which said in a paper on family law reform: "It is discrimination and not difference which lies at the root of inequality… 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."

A uniform civil code, the law commission said, "is neither necessary nor desirable at this stage."

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