A common civil code (CCC) dealing with matters of personal law is a good idea in a multi-cultural country like India given the rising number of cross community marriages– although still miniscule in proportion to total marriages. India does not have such a code.
A small, Indian hill state becomes the first to legislate a CCC.
A CCC can promote cross-community affinity by applying the benign principle of causing the least harm to any community, borrowing the best features from all personal laws, and ending practices rendered obsolete by time or plainly inequitable like gender inequality. For a deeply polarized polity finding such common ground is tough.
The Government of Uttarakhand – a remote hill state in North India (population about 11.7 million just 8 percent of the Indian population) resolved that it could be the first since cross community discord is minimal. It constituted a committee on May 27, 2022, chaired by Justice (Retired) Ranjana Prakash Desai work on the CCC. The committee invited suggestions from the public and held forty-one public meetings, including one in New Delhi, and received 60,810 suggestions which evidences the wide range of consultations. Sadly, neither the suggestion received, nor a transcript is available publicly.
These meetings might have been more productive if the committee had shared a brief to inform stakeholders on “how” amalgamation across personal laws would be achieved and assured communities that the ensuing code would cause the least harm and reduce dissonance across the existing personal law legislations, thereby, promoting intercommunity marriages, mixed community families and “ease of living” -an oft repeated goal of the Modi government. The CCC was approved by the Uttarakhand legislative Assembly on February 7th, 2024, less than two years after the appointment of the committee.
Some hits and a few misses
The success of the CCC will be assessed by a single metric- citizen satisfaction that the discomfort and uncertainty from the new legislation is minimal and that the burden of compliance with government regulations is reduced.
The UCCC does well to recognize “live-in heterosexual relationships”. These social arrangements are proliferating in cities, where the exigency of eye wateringly expensive accommodation encourages sharing of a house, albeit not always in the “nature of marriage”. Recognizing and defining such households also enables a new safeguard provision under section 388 which provides maintenance rights for a woman deserted by a “live-in partner”. Here the UCCC falters by protecting only deserted women. Under section 33 and 34 of the code, maintenance rights are available to either spouse per “good practice” gender neutral terms. In comparison, section 388 errs in not reproducing this gender-neutral stance.
Mainstreaming the LGBTQ community missed
The code also errs in not using this opportunity to widen the scope of the landmark, nine-bench verdict of the Supreme Court of India in Justice K.S. Puttaswamy (Retd.) versus the Union of India (2017). The right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. Indian laws do not recognize gay marriage. Extending the provisions for live-in arrangements to the LGBTQ community, could have been transformative by bestowing some legitimacy on such relationships. The UCCC would have made global headlines for its vision, sagacity, and social empathy.
Enhancing the risk of invasion of privacy even for heterosexuals
There is little doubt that codifying “live-in” arrangements, increase state micromanagement of private affairs- an intrusion, which reduces the “ease of living” and enhances litigation. Uncertainties persist. How will the Police enforce compliance with the onerous provisions for registration? Is house to house checking next? Will it become mandatory for house owners renting property to couples, to ask for marriage/” live-in” certificates? How will a court distinguish between a man and a woman just sharing a house for economic reasons, or as friends – where desertion by one would not qualify for maintenance rights- from a man and a woman “cohabiting in the nature of marriage” -where maintenance rights would be attracted?
Uttarakhand women – the backbone of the local economy
The UCCC tilts at shadows by implicitly seeking to “protect women” thereby, painting modern, Uttarakhand women in gullible, faintly derogatory, patriarchal terms. 80.7 percent of Uttarakhand women are literate versus the national average of 70.3 (NSO2017). Independent, women are the backbone of Uttarakhand’s economy. Women led the forest preservation “Chipko” movement in the 1970s. They manage lands and business, settle disputes, and yet remain homemakers because working men often emigrate for economic reasons or are in the army posted far away. The world was recently presented visuals of a new Indian womanhood – column after column of women soldiers, officers, and students – marching down Kartavya Path on Republic Day – confident, secure, serene – more than at par with any developed country. The UCCC does not internalize this sentiment.
Tribal laws remain outside the code- an opportunity lost.
There are good reasons why a uniform civil code makes eminent sense but force-feeding uniformity from the top is not one of them. Judicial law has already plugged loopholes and protected the right to privacy and women’s rights. The rights of children are similarly protected with rights and responsibilities linked to parentage irrespective of the bond of marriage.
Conversely, consider the case of polyandry – an ancient Indian practice mentioned in the Mahabharata – still practiced under tribal law. Curiously, it has resurfaced as a coping strategy amongst poor, landholding families to prevent the fragmentation of land. The award-winning Punjabi film Kohrra created by Sudip Sharma and directed by Randeep Jha for Netflix, documents this practice, illustrating the need for new laws to resonate with the prevailing economic and social circumstances.
There is much to be learnt from tribal law and striving to include tribal communities under a single code provides that opportunity. But that will never happen if tribal law remains a closed black box. The UCCC chooses not to confront this vexed issue by exempting tribal communities from its provisions, thereby sheltering behind Part XXI of the constitution, clause (25) of Article 366 read with Article 342. A plain reading shows that there is no constitutional bar in these provisions on a state legislature, after consultations with tribal communities, proposing to the President of India, a bridging device – an appropriate, possibly lagged, procedure to merge non-conforming aspects of tribal law with the mainstream CCC provisions. Doing so would have provided other states with proactive, tested pathways for similar mainstreaming of tribal law.
Commendable speed but less than comprehensive.
The UCCC was commendably legislated in record time. But it is error prone. Section 51 dealing with intestate succession, correctly uses the gender-neutral term “surviving spouse”. But the supporting Schedule 2 -mistakenly- mentions “widow”, making male spouses ineligible for intestate succession. Sadly, what has been gained by haste is likely to be lost to higher costs during implementation and does not match the social cost of the lost opportunity, for Uttarakhand to showcase its time-honored culture of open-minded scholarship, an open world view and inclusive social relationships.
Opinion India 