The Uniform Civil Code passed by the Uttarakhand Assembly is applicable to all residents of the state. It is a prototype because although restricted to one state, the exercise seems to be more in the nature of a compendium, with the committee having compiled different laws granting equal rights to men and women in the areas of marriage, divorce, adoption, alimony, maintenance and inheritance rather than come up with an original document. The timing of its presentation was done keeping an eye on the upcoming Lok Sabha elections in order to further build up public opinion in favour of giving a third consecutive victory to Prime Minister Narendra Modi.
Otherwise, what is the reason for Uttarakhand to exclude people from the Scheduled Tribes from the ambit of the UCC? Tribals in UT comprise a miniscule portion of the state’s population and consist largely of Bhotias, Buxas, Tharus and Rajis numbering around five lakhs in a state with a population of around one crore. The Bhotias are an extremely influential and monied tribe based largely in the Chamoli and Pithoragarh districts with a sizeable number employed in the police force and at different levels of the bureaucracy.
The state government did not wish to alienate them with a distinct message being sent out to the larger ST community who comprise around 10.5 crore of the nation’s population. For the BJP, it is imperative to win over the tribal community in order to achieve its target of 370 Lok Sabha seats in 2024. And since they have already reached close to saturation levels in terms of seats in the northern cow belt states, winning over the confidence of the tribal communities in Rajasthan, Madhya Pradesh, Rajasthan and Chhattisgarh is a must to edge them on to an overwhelming victory. Their strategy to woo tribals has been working and the recently held state elections in MP, Rajasthan and Chhattisgarh showed a substantial increase in the tribal votes for the saffron party.
The other message being sent out by this draft is that Big Brother has now practically entered into an individual’s bedroom. Otherwise, what earthly reason would the BJP have to wish to monitor live-in relationships? The BJP has always had a puritanical outlook and frowns upon the increasing levels of sexual freedom being enjoyed by the younger generation.
There are many reasons why people across all ages opt for live-in relationships, one of these being that they do not want to be trapped in the shackles of traditional marriages. The Act stipulates the registration of live-in relationships and imprisonment of three months or a fine of Rs 10,000 or both for failure to do so within a month. This is akin to a forced formalisation of a relationship in which often neither party wants to be bound.
And even if such a registration is to be introduced, the registration and other formalities will be subject to scrutiny not by officials in family courts but by a sub-registrar, who is in all likelihood to be an SDM assisted by the patwari and the naik tehsildar. India’s lower bureaucracy is hardly equipped to handle such cases and has also been given the power to deny permission to such a request. Not only will this result in a further curtailment of individual freedom but will give greater freedom to vigilante groups to interfere in private lives as has been witnessed in cases of love jihad, the majority of which have been triggered by such groups ensuring the harassment and arrest of inter-faith couples through making false accusations.
India is witness to a large number of honour killings. These acts of violence, usually murder, are committed by male family members and a registration of such relationships will mean putting them up for scrutiny in the public domain.
The report, prepared by the five- member committee led by retired Supreme Court Judge Ranjana Prakash Desai, has banned polygamy and suggested a common marriage age of 18 years for women and 21 for men across all communities in the state. All marriages will have to be registered within 60 days and a fine of Rs 10,000 will be imposed on couples for non-registration. Providing of wrong information will result in a three-month jail term and a fine of Rs 25,000. Application for divorce can only be made after a one-year period after the date of the marriage.
The UCC allows for equal property rights for sons and daughters, elimination of the distinction between legitimate and illegitimate and adopted children, and will apply to all religious communities thereby dissolving personal laws of all of them. Changes in inheritance laws, such as co-parcenary rights for Hindus or at least the fixed guarantee of inheritance, raise questions and require much greater debate. Under the Muslim Personal Law, daughters were given half the share being given to the sons, while women were entitled to either one-eighth or one-fourth of the husband’s property.
There is an apprehension that the Hindu family succession system and tax benefits for a Hindu Undivided Family will also be indirectly affected because of the change in the inheritance laws.
The UCC allows for Muslim marriages under nikah, Hindu marriages under saptpadi and Sikh marriages under anand karaj as also customary practises under other religions which are not prohibited under the UCC. But the Muslim practices of halala, which the majority of Muslims insist has no mention in the Quran, or the practice of iddat which is a 41-day period of silence maintained by women following a divorce or death of a husband, have also been banned. A large number of Muslim women believe that iddat is an essential part of Islamic law and was observed to ensure a woman is not pregnant in case she chooses to marry again. These changes in the Muslim Personal Laws are bound to raise the hackles of the Muslim Personal Law Board who have already issued a statement that they are not willing to accept any laws that go against the Shariah.
This UCC is very obviously a trial balloon because it is not clear under what jurisdiction such a law will operate. We already have central laws that regulate marriage, divorce, succession, inheritance and taxation. These apply across the country and are not state-specific.
What happens if a state law contradicts a central law or if other states are not willing to accept a state-specific law?
In such a situation where there is a contradiction between a state and a central law, the state government will have to seek Presidential approval, which basically means the approval of the central government. It can also result in a great deal of needless litigation. To cite one example, can a couple living in Uttarakhand but not part of the state go ahead with a live-in relationship since they are not bound by the state laws? In this case, which law will be applicable to them?
The question being asked is why Uttarakhand was chosen to launch the UCC with other states expected to follow suit. For the last two years, the centre and the state leadership have been keen to convert this state into a Hindutva laboratory along the lines of what happened in Gujarat in the nineties. Since the four Char Dhams are located here, as is the city of Haridwar with its sizeable presence of Hindutva proponents, this is believed to be one more opportunity for the government to reap political benefits in the coming Parliamentary elections.
Rashme Sehgal is an author and an independent journalist