By Joel Blah Kyndiah
Much furore has been raised in Meghalaya over the last few weeks regarding implementing the Uniform Civil Code (UCC) in the country. Letters opposing the same have been sent to the Law Commission of India and with the District Councils passing resolutions against the same.
It is believed that implementing the UCC would cause an affront to the customary laws and practices governing the domestic life and social relations of the Khasis, Jaintias, and Garos in Meghalaya. Angst over the UCC is also seen in the fear that its implementation would impact the community land and forest rights which were untouched ‘even during British rule’.
The UCC, derived from Article 44 of the Constitution, aims to provide a uniform code for marriage, divorce, inheritance, and adoption. Initially proposed as Article 35, it faced opposition in the Constituent Assembly. Eventually, it became one of the non-legally enforceable Directive Principles of State Policy (DPSP), guiding legislative considerations. DPSPs, including Articles 36-51, represent ideals rather than enforceable laws, as settled in constitutional jurisprudence.
The BJP’s push for the UCC is linked to their 2019 manifesto promise, it also essentializes a series of legal reforms that reflect a Hindu majoritarian agenda. These include the exclusion of Muslims in the Citizenship Amendment Act, anti-conversion laws targeting religious conversions from Hinduism, and anti-beef laws, which can hardly be seen as secular legal reforms aimed at promoting national unity and uniformity. Recently, the BJPs advocacy for the UCC has also garnered the support of liberal feminist groups, emphasising its potential for gender justice, particularly in protecting the rights of Muslim women after the Iddat period.
Though the current holler for the enactment of the UCC is predicated on the constitutional endeavour for uniform personal laws in the country aimed at inter alia achieving gender justice, it is perceptible that these legal reforms also carry with them the miasma of political perversions seen through the previous enactments of the BJP, thereby faltering the public’s faith in its secular character.
Though the BJP is seen as pushing forward progressive reforms for women’s rights and realising gender equality through the UCC, its double standard is apparent because in 2019, the Prime Minister lambasted the Left Democratic Front (LDF) in Kerala for their decision to implement the apex court’s judgement on Sabarimala.
Hence, the apprehensions expressed by civil society and the District Councils in Meghalaya and other North Eastern states, as well as by Adivasis in Chhattisgarh and Jharkhand, that their constitutionally protected way of life and religion is diluted under the new paradigm is not feigned.
Even if enacted nationally, its implementation in Nagaland and Mizoram, protected respectively under Article 371 A and Article 371 G is hard to imagine, as it bars the application of Parliamentary Act infringing upon the religious, social, and customary law of the Nagas and Mizos, without a resolution by the State’s Assembly.
Though a similar provision exists for Meghalaya, it is relatively weaker in character. Paragraph 12A(b) of the Sixth Schedule provides that the President of India may by notification exempt a Scheduled District of the State from the application of an Act of Parliament. Under the same provision, the President can also implement the Parliamentary Act, subject to modification, such as the United Khasi-Jaintia Hills District (Christian Marriage) Act, 1954, modified from the 1872 Christian Marriage Act.
Paragraph 12A, unlike Article 371 in Nagaland and Mizoram, enables discretionary power in the Union Executive and not in the State Assembly, wherein the decision lies in the Union Government whether a law should be applied, exempted or modified. Hence, in these conditions, it is hardly surprising for religious minorities and tribals in India to be suspicious of the ‘One Nation, One Law’ motives of the BJP, which entrenches any move to the implementation of the UCC, despite reassurances being given by BJP leaders.
However, beyond the miasmatic political perversions surrounding the UCC and liberal feminism pushing it as the realisation of gender justice, there are also sound judicial reasons for its implementation. Often the SC has remarked that Article 44 is a dead letter in the spirit of the Constitution. Highlighting that despite seventy years of independence, the endeavour to provide a uniform civil code, remains only a mere endeavour.
Though the SC acknowledges that Article 44 is a DPSP and is non-justiciable, its remark underscores the complicated adjudication process of personal law, especially if the disputing parties are of different religions and not married under special law.
In Ms. Jordan Diengdoh vs. SS Chopra, the SC noted that ‘the law relating to judicial separation, divorce, nullity of marriage is far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code on marriage and divorce.’
Though the Indian Divorce Act, which governs Christian divorce, was amended in 2001 to provide for divorce by ‘mutual consent of parties’, the 1985 case, where divorce was predicated on impotency, highlights the complicated situation and unfair burden on women, in the absence of a uniform law to govern marriages on account of parties belonging to different religions or the general rule for grant of divorce sans religious underpinnings.
In Sarla Mudgal, the Court highlighted that Article 44 aims to separate religion from personal laws in a civilised society. While Article 25 guarantees religious freedom, Article 44 seeks to secularise matters like marriage, divorce, and succession. The Court noted that even though Hindu law has religious origins, it has been secularised, and these secular aspects cannot be protected under Article 25, 26, and 27.
Though the Court’s observation that the above functions of a civilised society are divested from religion may be appreciated or refuted, depending on one’s conviction, it is an ingenious argument. Nevertheless, the problem with it is that it does not account for customary law governing the marriage, divorce, and intestate succession of tribal communities, where oftentimes tribal customary practices precede religious affiliation.
As evident in Meghalaya, in cases of divorce, despite parties being Christian, no child would be deemed as illegitimate if born before or outside wedlock owing to the fact that Khasi society is matrilineal and children inherit from the mother, with the father only being a procreator. A position different from Christian personal law elsewhere. It is axiomatic that the observation by the apex Court in favour of the UCC, has been from the viewpoint of secularising the religious personal laws in India, sans the consideration of tribal customs.
Article 29 of the Constitution provides that minorities with distinct languages, script, and culture have the right to conserve the same. Hence, the question arises, if UCC secularises personal law under Article 44 while protecting religious freedom under Article 25, can tribals whose virtually secular customary laws be protected under Article 29?
In the context of secularising personal laws, I would be remiss if I did not mention the same in relation to the petition for marriage equality presently in the Supreme Court. From the Court’s viewpoint of the UCC, it can be gauged that same-sex marriage equality would fall under the ambit of the judicially imagined UCC, especially after the NALSA and Navtej Johar judgments. Yet, the double standard of the BJP on the same is apparent in its counter affidavit, where it remarked that recognition of any other forms of union would cause complete havoc on the delicate balance of personal laws in the country.
The UCC, observed in Sarla Mudgal, provides an opportunity for women’s rights, secularising personal law, and extending it to sexual minorities. Yet, ironically, attempts to introduce the same are entrenched in opposition from across civil society who fear the perversion of secularism, majoritarianism, and double-standard politicking which underpins the government’s attempt to do so.
Regardless of whether the UCC is implemented either out of judicially imagined benevolence or the political perversion of the BJP, the question of its impact on tribal communities’ remains potent and tribal trepidations of it disregarding constitutionally recognized customary law prevail. Hence, what is the way forward for Meghalaya and the UCC? – Extending Article 371 as in Nagaland and Mizoram, inserting a caveat of exemption in the code or a Presidential notification under Paragraph 12 of the Sixth Schedule?