One Nation, One Law

It was entirely predictable that provisions of the Uniform Civil Code, Uttarakhand, 2024 Bill dealing with live-in re­lationships which stipulate that such arrangements must be registered and also notified in the event of a break-up held the attention of the media, activists, and commenta­tors. The immediate questions that generated heat were whether such provisions were coercive and intrusive and, therefore, violative of the right to privacy granted by the Supreme Court. Is the provision of the Uniform Civil Code (UCC) paternal­istic, offering protection that the current generation, particularly women, do not desire or require? Live-in relationships are just one part of the voluminous Bill adopted by the Uttarakhand As­sembly on February 7 but serve to highlight the web of political, social, and legal issues the legislation seeks to address in order to provide an even-handed approach to matters such as marriage, divorce, and succession by superseding personal laws.

The Uttarakhand government does not dodge the question on live-in relationships in its explanatory notes released along with the text of the Bill. Rather, it provides a detailed rationale stating that the implications of growing social recognition of live-in re­lationships need careful consideration in the context of family structure, marriage and inheritance. The state frames the issue as one that acknowledges both individual consent and social and ethical norms. “The rights of all citizens need to be protected, but there is a need for a balance between rights and social order,” the state has argued. For one, the UCC states that women in a live-in relationship must be 18 and men 21 years of age and registration of such couples must be made available to parents of both par­ties. “[P]arents need to know who their children are living with and where are they located… Utta­rakhand’s youthful chief minister Pushkar Dhami’s government has decided on this provision after con­siderable thought,” the note states.

A live-in relationship needs hon­esty and disclosure so that those entering such a bond are not vul­nerable to adultery committed by a dishonest partner or misrepresenta­tion of religious faith. In stating this, the UCC grasps the political hot-button issue of love jihad. “There are instances where false information is provided in inter-religious rela­tions or identity is concealed and a partner is subjected to fraud. These tendencies need to be checked,” the state has said. The clauses relating to live-in relations are also seen in the context of deci­sions taken by people at a relatively young age and which may lack more mature consideration. This, says the state, can result in differences relating to faith and methods of worship, individual thinking processes and differing social norms and lifestyles. More thought before the initiation of such relations, the state feels, can protect participants from the detritus of failed relationships. “[I]t has been found that after break ups there are instances of black­mail, self-harm and even murder… Through the new provisions of the UCC we want our sons and daughters to be provided mental and social protection from such ills,” the state has said.

In bringing uniformity to the recognition of marriages across communities, the UCC invalidates personal laws that may clash with the legislation. it will also end the differentiation between age of consent and age of marriage

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The UCC itself and certainly provisions like the ones dealing with live-in relations are bound to be tested in court for their con­stitutionality. A detailed examination of the live-in relations aspect is required not just because of obvious arguments that will criticise the UCC law of being invasive and prescriptive but also because of the social vision or balance the legislation advocates. The hill state of Uttarakhand is seen as conservative in its adherence to social norms even as it is progressive in terms of the vigorous par­ticipation of women in economic activity. The small state has been buffeted by polarising debates over migration and inter-faith rela­tions have been a cause of social tensions. There are no prizes for guessing which side of the debate the Bharatiya Janata Party (BJP) is on and the state government was sensitive to apprehensions about the apparent ease—and pitfalls—of live-in relations. As of now, such relations are recognised under laws dealing with do­mestic violence but the UCC seeks to provide certain guide rails by asserting that fundamental rights, including those set out under Article 19, are subject to reasonable restrictions to ensure social order is not upended. “The practice of live-in relationships should not endanger the prevalence of established social practices,” the state says.

In bringing uniformity to the process of recognition of marriages across communities, the UCC in­validates personal laws and reli­gious interpretations that may be at a variance with the legislation. Religious readings or edicts that claim that puberty, rather than age, make a girl eligible for marriage will not be recognised. The law will also extinguish the differentiation between age of consent and age of marriage that courts have taken recourse to for recognising marriages where the girl is between 16 and 18 years of age. The number of such marriages continues to decline steadily but a significant number of such unions pose a test for courts and governments. The UCC law draws a line and underage marriages will no longer be recognised in Uttarakhand. The registration of marriages is compulsory and cannot include relationships banned under law. Similarly, the dissolution of mar­riages will be governed by a uniform law. “It has been made clear that a woman will not be subjected to any conditions after talak (divorce) in order to marry the same man or someone else… such an instance will be punishable by a jail term of three years or a fine of Rs 1 lakh… By doing this, social malpractices like halala and iddat will be ended.” Similarly, polygamy is banned and a second marriage without the dissolution of the first is illegal. Ad­ditionally, if either husband or wife converts to a different religion without the consent of the other, the aggrieved party can seek divorce and maintenance. There is a strong incentive to ensure registra­tion of marriages with the Bill stat­ing that this will be a precondition for accessing government welfare benefits even though unregistered unions will not be held illegal.

The state government does not dodge the question on live-in relationships. It argues that the implications of growing social recognition of live-in relationships need careful consideration in the context of family, marriage and inheritance

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The Bill and its explanatory notes state there is no bid to inter­fere or alter traditions of marriage as per various faiths. The Bill aims to ensure a level playing field for all citizens when it comes to the ex­ercise of their rights. “[T]here is no place for ill-conceived practices in a progressive society and we must gradually use the law to get rid of them,” the state has said. The UCC seeks to iron out inequalities and asymmetries with regard to suc­cession inherent in most personal laws. The right to property of the deceased is denied to a father in some instances and in other situations there is discrimination in the rights of children on the basis of gender. The UCC provides a share in inheritance to both parents and ends the practice of sons and daughters being treated differently. “There is differentiation in the Hindu succession rules as it is found that the rights of sons and daughters are not equal even in the case of agricultural land,” the note says. In an impor­tant specification, the UCC brings clarity to the rights of children born out of wedlock. The law recognises that the children of such unions are not responsible for their circumstances and should not be deprived of their inheritance.

The UCC Bill is based on a voluminous 750-page four-part re­port submitted by a committee headed by Justice Ranjana Desai and its adoption certainly has political overtones. The enactment of a UCC is one of a triad of “core” BJP issues, the others being con­struction of a Ram temple at Ayodhya and abrogation of Article 370 with respect to Jammu and Kashmir. As with Article 370 and the Ram temple, there is a broader, sweeping vision behind the UCC that goes much beyond administrative and political dimen­sions. It is a move to deal with the continuing consequences of Par­tition and a step towards one nation, one law. The UCC is an effort to generate a social and emotional convergence that defines na­tional identity. BJP and its predecessor, the Bharatiya Jana Sangh, have held personal laws and unequal rights for different classes of citizens to be divisive rather than an accommodation of diversity as argued by its ideological opponents. Doubts have been raised over the utility of a Central law, though this is not ruled out, as some experts argue that UCC defies a one-size-fits-all design. It is also felt that the passage of the UCC in Uttarakhand is an easier initiation for such a code and provides a model for other National Democratic Alliance (NDA) states. The UCC needs to be seen not just in the context of the other BJP core agendas but alongside other decisions like operationalising amendments to the citi­zenship act that provide a path to citizenship for minorities (people who do not belong to the majority religion) and who have fled India’s neighbouring countries due to reli­gious persecution. There is a political and social vision that wants to erase laws that—due to the distinctions they draw between social groups and individual citizens—give rise to divisive mindsets.

The UCC debate will be part of the political discussion in the Lok Sabha polls although it is not likely to receive undue primacy. The issue will be one in a bouquet. Going by the short films released by BJP, seen as an early indicator of the party’s cam­paign, the stress will be on the Modi government’s delivery of basic needs and promotion of ease of living. The government is far from reticent in claiming it has implemented far-reaching economic reforms to boost growth. The days of reform by stealth are over. However, in doing so, Prime Minister Narendra Modi has taken care to under­line the link between reforms and the generation of resources for the welfare of the unprivileged. The emotive content of the UCC is evident as it is presented as a rebuttal of the ‘appeasement’ politics of BJP’s rivals who are dependent on minority votes. The Hindutva element in enactment of the UCC is evident as debates over the code and related matters get distilled to their raw essence on social media. Though the legal challenges to the UCC lie ahead, it is difficult to see how the legislation can be overturned given several pronounce­ments of high courts and the Supreme Court supportive of such a code. Once the code is implemented, notwithstanding the sectarian discussions that can be anticipated, it may result in a fairer legal system that reduces disparities and, therefore, the edginess that has often marked inter-religious relations since Independence.

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Rajeev Deshpande

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