Uttarakhand’s UCC Bill, 2024: Substituting ‘Equality’ with ‘Uniformity’ - Part I

Marriage, Divorce and Succession Laws in Uttarakhand’s UCC Bill, 2024

In February 2024, the Uttarakhand government passed the Uniform Civil Code Bill, thus enforcing upon its residents (excluding the tribal population) a homogenous code of personal laws governing marriage, divorce, succession, and for the first time, live-in relationships. It has been promulgated by the state government as a herald of gender justice due to the abolition of polygamy and extrajudicial divorce among Muslims, and the establishment of gender-neutral succession laws. However, the UUCC has received glaring criticism from women’s groups, minority associations and the opposition, thus creating doubt about the legitimacy of gender equality in the code.

Constitutional Considerations: Article 44

Addressing the assembly during the tabling of the bill, Chief Minister Dhami invoked Article 44 as the Constitutional stronghold for the implementation of the UCC.

Article 44 reads that:

The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India. 

However the need to balance the Article with the Fundamental Rights under Articles 25 to 28, which enshrine the freedom of religion, has been emphasised since its inception. These concerns were dealt with during the Constituent Assembly Debates in 1948.

The Article was challenged on the grounds that it would be ‘tyrannical’ to the minority groups, and amendments were proposed. It was suggested that a proviso be added that ensures that any group of people shall not be obliged to give up their own personal law. Another proposition provided that the personal law of any community shall not be changed except with the prior approval of the community. 

Dr. BR Ambedkar had opposed the amendments but assuaged the apprehensions of the Assembly by explaining the manner of implementation of the Article. He said,

‘It does not say that after the Code is framed the State shall enforce it upon all citizens merely because they are citizens. It is perfectly possible that … the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary.’

Thus, Ambedkar’s ideation of the UCC was not that of an inflexible imposition, but rather a voluntary option for the citizens. The forcible application of the Uttarakhand UCC without regard to the concerns of the various societal factions, especially gender, ethnic and religious minorities, is in direct contravention of the intentions of the Constitution drafters.

Fundamental Rights vs Personal Laws: Judicial Precedents 

The judiciary has confronted the dissonance between fundamental rights and personal laws in several instances following the adoption of the Constitution. In the State of Bombay v Narasu Appa Mali judgement, the court held that personal laws are not ‘laws in force’ within the scope of Article 13. The judgement effectively immunised personal laws from the mandate to align with the fundamental rights in the Constitution. Thus, customs and usages that have the force of law can operate despite violation of the rights of individuals.

The Supreme Court in Indian Young Lawyers Association v the State of Kerala overruled the judgement in Narasu Appa Mali by granting all women entry to the Sabarimala temple and thus, bringing the personal laws within the purview of the fundamental rights. In this context, the personal laws are bound by Articles 14 and 15 which guarantee equality before the law and prohibit discrimination based on religion, sex etc. 

In Sarla Mudgal v UoI, the Supreme Court highlighted the exploitation of religious practices in the absence of a UCC and directed the Central government to revisit Article 44. However, the obiter dicta of the Court was criticised on the basis that the judiciary had dubiously attributed the misuse of religious freedoms to the lack of a UCC. Further, the All India Democratic Women’s Association withdrew its support for the UCC after the Sarla Mudgal case. It has been argued that ‘gender justice and the fulfilment of constitutional guarantees of equality need not necessarily be linked to an umbrella legislation’. 

Law Commission of India: Equality ‘within’ Communities 

In 2018, the 21st Law Commission of India published its Consultation Paper on ‘Reform of Family Law’. Regarding the UCC, it suggested that a UCC was unnecessary as it believed that the abolition of differences in personal laws of religions would not automatically result in gender justice. It instead suggested that the personal laws be codified and amended separately in order to make them conducive to the empowerment of women. It argued for equality ‘within’ communities rather than between’ communities. 

The Commission also touched upon the battle between freedom of religion and the right to equality, and the unfairness of necessitating women to choose between one or the other. The maintenance of diversity through the codification and piecemeal amendment of personal laws was presented as superior to the erasure of difference through a UCC. 

Uttarakhand UCC: Preservation of Patriarchy 

The Uttarakhand UCC, though it claims to further the cause of gender justice, is rife with patriarchal rules and provisions, and is ignorant of the 21st Law Commission’s recommendations on the subject.  

The mandatory registration of marriages (S.6, S.7) has been opposed by women’s groups as it places the burden of registration on citizens without creating awareness of the mandate, thus placing illiterate and poor families at a disadvantage. Moreover, the code without specifying the criterion for rejections gives power to the Registrar to reject applications for registration (S.13), creating a scope for arbitrariness. The open access of the records to the public (S.15) also endangers the safety and privacy of inter-caste and inter-faith couples. 

The Code has also retained the controversial provision of restitution of conjugal rights (RCR) (S.21). The Andhra HC in T Sareetha v T Venkata Subbaiah struck down the RCR on the grounds that it violated the woman’s right to privacy and human dignity. It was overruled by the SC in Saroj Rani v Sudarshan Kumar, but the validity of the RCR has been challenged once again in the Ojaswa Pathak writ petition. The retention of the RCR in the UCC is a blatant disregard for gender justice and creates scope for marital abuse. 

As regards matters of testamentary succession, the UCC does not place any restrictions on a person’s right to bequeath the entirety of their property through a will. As per the Sharia law, a person cannot bequeath more than one-third of their property through a will. The Law Commission in the 2018 Paper had suggested a similar provision to be applied to Hindus in the interests of widows, unmarried daughters and other dependents. The UCC thus renders vulnerable the female members of the family.  

Further, the Uttarakhand UCC does not deal with adoption and guardianship. As per the personal laws in India, the child’s guardian is ‘the father, and after him, the mother’. It is a product of gendered familialism. §6 of the Hindu Adoptions and Maintenance Act (HAMA) which pertains to this issue was challenged in Githa Hariharan v RBI, but the SC reinterpreted the section instead of striking it down. By remaining silent on this issue and aiding the continuance of patriarchal laws, the UCC serves to preserve the discriminatory status quo.  

Conclusion

The Uttarakhand state government in a hasty endeavour to implement a UCC has drafted a Code that maintains a facade of gender justice and communal equality while subscribing to patriarchal and majoritarian values. The lack of productive discourse and the ignorance of the concerns raised by the opposition, women's groups and religious minorities contribute to the procedural and substantive problems in the Uttarakhand UCC. As concluded by the Law Commission in 2018, the UCC is ‘neither necessary nor desirable at this stage’, and reform of personal laws while preserving the cultural diversity of the Indian population would have been more effective in the exercise of women empowerment.