Uniform Civil Code: History and Politics

Following is an English translation of the article on UCC from Mazdoor April '24.

The legislative assembly of Uttrakhand passed the Uniform Civil Code of Uttarakhand Bill on the 7th of February, 2024. It has since entered into force after the approval of both the Governor and the President. UCC has been a key part of the BJP's communal vision as is shown by the fact that it has been a part of their manifesto for a long time. The demand for UCC by BJP (and its parent organisation RSS) is often expressed in liberal and secular phraseology. However, this is mere sophistry and the entire history and ideology of RSS proves it. In this article we will present an exposition of the idea of UCC and its history, both national and international, in an attempt to reveal the true essence of it in BJP's programme.

To trace the history of secularism, to understand its essence and importance, we must take a look at its evolution in society as capitalism was emerging from feudalism in the world. Secularism, as we know and use it today, evolved along with and as a part of the philosophy of liberalism. Liberalism was then the ideology of the revolutionary bourgeoisie, who in its struggle against feudal authority had to fight against the Church as well.

Arising as an attempt to cope with the vagaries of nature, as a system that speculatively tried to understand the world, religion has been a prominent part of human societies from times immemorial. In primitive classless societies, people used to live in groups that were bonded by blood ties (kinship groups) and bound together by social and religious institutions into a distinct community. Due to such an important role played by religion in their society, religious leaders were widely respected and influential. Without classes, these societies were fundamentally more egalitarian than any class society and thus the role of religion as an instrument of control was nonexistent. With the development of productive forces, society undergoes many changes. Division of labour develops, at a certain stage of the growth of production forces private property arises, and most decisively classes arise in society bringing forth many other changes along with it. To maintain the status quo of domination of one class over another, to keep the conflict between classes within the bounds of "order", we see the state coming into being. Religion, which this class society inherits from the previous society, also undergoes transformation. As a product of human society, religion is always related to the society it is a part of, and the historical evolution it has undergone. In class society, it also assumes another role, for the oppressed classes religion becomes a way of coping with oppression, while the oppressors try to use religion to legitimise their status in society, for example, monarchs ruling by "divine right" (a phenomenon common to most monarchies). We can see how contrary to the character of rebellious primitive Christianity, the Christian religion was turned into a weapon of the exploiters by giving it the status of state religion. In class societies, many a time class struggles have expressed themselves in religious forms too. Due to the limited scope of this article, we are only going to present this struggle as it took place as a part of the broader class struggle against feudalism.

The state arises as an authority from society, but placing itself above it and increasingly alienating itself from it. Within its purview comes the task of governance, a task which includes in its scope the customary ways and practices of any given society. Some of these customary practices have religious links as well. Thus, there necessarily exists an overlap between the functions that ought to come under the authority of the state and the sphere of activities in which religion holds sway. And here we arrive at the heart of the problem. How a society approaches this contradiction is what decides the extent to which it can be termed secular. Secular states, as mentioned earlier, are primarily a modern phenomenon. Roman Law, which provides the basic framework of many legal systems in use even today, classified religious matters as a part of both public law and private law. It was seen as a public law issue because the relation between state religion (both pagan and later Christianity) and the citizens was considered important. This merger of state with religion reached an even higher form in feudal Europe. With the coronation of Charlemagne as an emperor by Pope, Roman Catholic Church became a feudal authority which not only enjoyed many class privileges (exemption from taxes, tithe for revenue, etc.), but also exercised political control to varying degree over all Catholic monarchs. With the monarch being proclaimed as the ruler of the "earthly" sphere as ordained by God, and the church as the foremost authority in the "spiritual" sphere, coronations of Catholic monarchs always involved clergymen who anointed them as rulers, and theoretically had even the power to depose them (Doctrine of Papal Supremacy). This resulted in the church transgressing its "spiritual" sphere as a political authority, vying with the monarchs for political influence, becoming an important player in the political power play in Europe, emerging as one of the largest landlords in the whole of Europe, and later in the world.

Its role as the strongest feudal institution in Europe (owning a third of the land in the Catholic world) meant that the emerging bourgeoisie had to contend with it. The class struggle against the church took many forms. Initially, it was carried out within the framework of religion itself. Thus, we had the various movements that attempted at reformation of the church. Black Death in the 14th century, rising productivity, rise in trade especially with the discovery of Americas by Europeans, etc. were the conditions that gave an impetus to change in the social make-up of feudal Europe. This change was reflected in the cultural sphere by the Renaissance and in the spiritual sphere by the reformation movements. The reformation movements were attempts at resisting the increasingly corrupt and oppressive Roman church. Though religious in form, their true content was the class interests of the rising bourgeoisie, and that of the oppressed peasantry. They were essentially class struggles. For example, the nascent bourgeoisie championed the creed which involved what is usually known as the Protestant work ethic against the feudal lethargy of Catholicism. Similarly, we find the confiscation of church lands, which represented those class interests even more clearly. The most radical of these movements even formulated the secular ideas that were later to be found in a further developed form by a more militant bourgeoisie. Anabaptists, for example, argued that the church should not be supported by the state. These movements facilitated the further development of the upcoming bourgeoisie. This struggle went on historically in many varied forms. Popular acceptance of Protestant teachings, aided by the printing press, was significant in many peasant uprisings, while a struggle from 'above' took place in the case of England.

As the bourgeoisie developed into a class of its own, its class interests came increasingly in conflict with feudal society and they found an expression in the revolutionary ideology of the day. To appreciate these developments, we must contextualise them in the historical evolution of the modern bourgeoisie and the concrete conditions in which they occurred. After the Protestant Reformation, the next bourgeois upheaval took place in England. As the feudal authority of the Catholic church had already been undermined in England and the incipient ideas of atheism (deism, a non-interfering God) were being professed by the intellectuals of aristocrats (Hobbes), the English bourgeoisie remained faithful to its Protestant faith. The ideas of the intellectuals of the bourgeoisie (Locke), which came later, further developed deism and empiricism, an important progress in light of the development of the modern sciences and its significance for the bourgeoisie. Locke was also instrumental in the development of the modern concept of secularism, providing the basis for the separation of the church and the state. Locke emphasized on the need for religious toleration by the state and the need to see religion as a private affair of the individual alone. The sphere of religious authority, which arose out of voluntary association and exercised itself only within it, and that of civil authority were, thus, clearly seen as separate spheres. This separation provided by Locke was to become very influential. Locke's text, however, is more concerned with the political separation of the church and the state and does not explicitly discuss private matters and the influence of religious institutions, rites, etc. in those areas as opposed to civil authority. Regardless, most secular constitutions keep these areas also under the ambit of civil law, drafting uniform laws for all citizens irrespective of their faith.

The furthest the revolutionary bourgeoisie went was in the case of the French revolution. The ideologues of this revolution developed the philosophy of Locke more consistently, erecting it on a materialist basis leading to atheism. The ideological development of the emerging bourgeoisie, along with the existence of feudal oppression of the Catholic church gave it a much more radical content. It is here that the ideas of the bourgeoisie found their most revolutionary expression and the struggle against the feudal order also was much more comprehensive. The revolution attacked the privileges of the clergy and the nobility, depriving the Church of tithes, confiscated the church lands and subordinated the church to the state completely (Civil Constitution of the Clergy). The revolutionary fervour against feudal oppression of the church also manifested in the destruction of the places of worship. Thus, the militant materialist ideology of the French bourgeoisie attempted to solve this contradiction of the overlapping spheres of state and church by subordinating the latter completely to the interests of the former, while still retaining the personal freedom of religion. Such a radical transformation could occur because of the exploitation and oppression that the church directly exacted upon the masses and thus stood as an institution against the masses, worthy of being discarded by them. The popularity of the revolutionary bourgeois ideals which helped impel the masses in such a direction struck a chord with people because it attacked their exploiter and oppressor vehemently. The Napoleonic Code that emerged out of this revolution against feudalism and the Church has been one of the most influential civil codes and has been used as a model for secular civil codes all over the world.

The revolutionary bourgeoisie, however, soon becomes a defender of the faith once it establishes its hegemony. Religion, as a bulwark of traditional values, renders it immense service in fighting the revolutionary ideas of the proletariat. The revolutionary movement of the proletariat picks up from where the bourgeoisie left, in its attempt to expose capitalist exploitation it needs the most consistently scientific philosophy. Thus, armed with materialism, it settles scores with bourgeoisdom in all spheres, including religion. We find the proletarian attempt at solving the mentioned contradiction exemplified in various proletarian revolutions, starting from the Paris Commune. The communards declared separation of the state and the church, appropriated church property as public property, and prohibited the practice of religion in schools. Churches were only allowed to continue with their activities if their premises were kept open for public political meetings in the evening. In the USSR, we find that the state again guaranteed freedom of religion as long as there was no violation of state laws, freedom for anti-religious propaganda for all citizens, and ensured complete separation between the state, school and religious institutions. Groups of adult citizens upwards of 20 were free to form religious societies for their religious interests. These voluntary religious organisations were free to set up their own premises, acquire means of transportation and engage in the production of 'necessary' religious paraphernalia (like candles) and were run entirely on voluntary donations from their congregations. The state also consistently attempted to raise the masses towards a materialist outlook not just by propaganda, but by focusing on the material conditions that foster religiosity and changing them. Religion cannot be understood apart from reality or isolated from it. Marxism teaches us that it is the uncertainties and the anxieties of the real world that push people into the arms of religion, thus communists attempt to create a society that overcomes these social realities. Only with this understanding and not isolating the leadership from the religious masses but making the latter learn from their own experience about the truthful character of the materialist doctrine are the communists supposed to approach religion.

With the historical context of secularism and its relation with liberalism understood, we can begin to examine the case of UCC in India. Under British occupation, the colonial authorities decided to not interfere in the religious practices of the population, fearing that such an interference might intensify resistance against the occupation. Their purpose was the exploitation of India and thus the legal structure only existed to facilitate that. At the start of Company Raj, the East India Company didn't impose British law on the native subjects directly, but attempted to use the existing legal structure and customary laws, as they felt it to be more suited to India. However even then when they tried defining the local laws they did this through British lens, and carried on modifications that suited them (like running courts in the English manner). This period usually involved court-appointed Hindu Pandits and Muslim Qadis interpreting religious scriptures and led to the development of a body of case law. This practice ensured that the customs of the dominant sections of a region became legalised and other customs became illegal. Such an approach also preserved casteist traditions. Inconsistencies in the interpretations by different religious authorities, differences in customary practices in various parts, and the needs of the colonial government for uniform laws eventually lead to a process of codification of criminal and civil laws, which were more in line with British laws. However, family laws were kept out of the scope of such uniform codification and different religious communities (Hindus, Muslims, and later Christians and Parsis) had different laws, in accordance with their religious and customary practices. This also preserved their nature which legalised dominant and casteist customs. We continue to have these different personal laws after independence too, except in Goa which has had its uniform civil code since the Portuguese occupation.

As a result of this colonial history, secularism in modern India consists not in the clear separation of state and religion. Religious laws do operate in the sphere of civil law and secularism is interpreted as equal respect for all religions (plurality; sarv dharm sambhav) and no state religion. This ambiguous character of secularism in India has been responsible for many backward and obscurantist elements persisting in Indian society under the protection of religious personal laws. Struggles against such elements have been carried out since the colonial period, meeting resistance from the reactionary, conservative sections of society. Still, this struggle managed to win a few reforms with amendments regarding sati practice, widow remarriage, child marriage, right to maintenance, etc. in Hindu family laws. Post-independence, Hindu code bills were passed with the view of combatting these backward elements further in the Hindu family law, like legitimising female heirs in a limited manner, divorce, etc. The Nehru government played a key role in getting them enforced, however, the resistance from conservative sections meant that they were of a compromising nature. It is important to note here that this resistance to Hindu code bills was presented not only by the right wing of the Congress, and the then President of India but also by the RSS and Hindu Mahasabha. Muslim family laws, however, haven't seen major reformations since the 1937 Shariat Act and the 1939 Dissolution of Muslim Marriage Act, except for the recent act banning and criminalising instant Triple Talaq. An interesting fact to note here is that the Hindu personal laws are actually less uniformly applicable than Muslim personal laws, owing to the much wider field that the former leave open to customary laws as opposed to the latter. The Hindu Undivided Family (HUF, joint family) not only enjoys multiple tax benefits, but also has a much more complex system for inheritance (coparcenery system) with different customs prevalent in different regions (like Dayabhaga and Mitakshara schools of law). Different customs in marriages are also prevalent like sapinda (cousin) marriages, matrilineal marriages, etc. On the other hand, the Shariat Act provides for customary laws only in the cases of inheritance of agricultural land by women, adoption, legacies, and will. In the case of latter three it also provides the choice of opting for provisions in the act over customary law upon declaration.

Before we go further into the topic of UCC in India, we must point out one important aspect of these personal laws. While these personal laws are a barrier to thorough secularisation, they also played an important role in defining these religious identities. The Muslim League was involved in codifying the Shariat Act and the 1939 amendment to it, thus creating a pan-Indian Muslim identity. Even Nehru's motivation for the Hindu code bills included a need for a united Hindu identity. This linking of the personal laws with religious identities is an important reason for the resistance to reforms in these laws, especially by the minorities. In fact, the debates in the constituent assembly about a Uniform Civil Code which was championed by a section of Congress leaders, including Ambedkar, Nehru, and Sardar Patel, could not end in agreement because of this perceived threat to identity and plurality (especially so soon after partition). Due to this, UCC could only be included in the Directive Principles of state policy of the constitution, which are meant only as a guide to future legislation on these matters. Again, this was a compromise from the vision of a secular India.

At the time of the drafting and the later enacting of the Hindu code bills, RSS fiercely opposed them. Besides the criticism of the progressive measures, including abolition of polygamy, it also voiced the concern that these reforms were only targetting the Hindu community and supported UCC as the alternative. The right wing of Congress supported UCC on similar grounds, including Sardar Patel. As mentioned earlier, however, the opposition from minority leaders, seeing it as a threat to their identity, and the lack of agreement on the exact content of a uniform code meant that it had to be shelved. The Special Marriages Act was also passed in 1954 to give a framework of secular civil laws regarding marriage, giving the choice to citizens of any faith to undergo a civil marriage. The Shah Bano case in 1985 brought the the UCC again into focus. Shah Bano was divorced by her husband using the instant triple talaq law and denied maintenance beyond the period of iddah (three lunar months) by her husband who argued that he was following Islamic law. Supreme court, however, ruled in favour of Shah Bano and asked her husband to pay maintenance as per section 125 of the Criminal Procedure Code, which was applicable to all citizens and recommended the formulation of a Uniform Civil Code. This was opposed by the All India Muslim Board and Congress, despite initial support to the Supreme Court decision, caved in under political pressure. It passed an act in 1986 which kept Muslim women outside the purview of the said section 125. This capitulation received criticism from the left, Muslim liberals, women's organisations, and the Hindu right (who weaponised it for their political gain). We see here how the ambiguous secularism of the Indian constitution contains all the germs for such regressive legislatures. It must be noted however that the 1986 act has been effectively overruled due to the Supreme Court's interpretation of it in the Daniel Latifi case in 2001, allowing for maintenance for Muslim women even after iddat. But neither this judgement nor the Shah Bano case judgement were actually thoroughly secular in their verdicts, as they both supported their judgements through a study of religious scriptures. This is to be expected since our constitution keeps these laws within the framework of religion.

As a progressive secular legislation, UCC should be supported by all progressive forces in society, however, we find here again that one cannot uphold an abstract principle. UCC for RSS and BJP is not a progressive secular law, but another instrument in their fascist vision of Hindurashtra. A party which led the opposition to progressive reformations in the Hindu personal laws, a party which has crossed all lines in merging (Hindu) religion with the state (incidentally, their own vision of Hindurashtra demands a monolithic version of Hinduism, something that goes against the pluralistic history and traditions of this religion and thus forces a process of Abrahamisation of Hinduism), a party whose members have repeatedly given calls for establishment of Hindurashtra can only deceive people in the name of UCC. The entire history of RSS and BJP stands opposed to this jumla of secular law in the form of UCC. They see how the Muslim population sees in their personal law their identity and so wish to attack this basis. The anti-minority sentiment that the ruling party has been abetting leading to increasing attacks by their stormtroopers with impunity, the way they have used the whole exercise of Babri mosque demolition and the construction of the Ram Mandir with the prime minister himself inaugurating it, the role of this party in countless communal riots among other things can only fool the most naive person about their intention of bringing secular reforms through UCC. When the very vision of the party demands a state religion, there can be no illusion about such secular legislation by the same party. This also manifests in the party interfering with the freedom of religion by putting restrictions on religious conversions (most recently even in the case of Dalits seeking conversion to Buddhism in Gujarat) and inter-faith marriages, banning halal certification, and even interference in religious acts (prohibiting congregational prayers in Jama Masjid, Srinagar). This party even makes laws by creating imaginary stories like love jihad. The incidents involving so-called love jihad which were talked about in the film Kerala Story were such imaginary stories and they themselves had to accept its falsity. RSS and the BJP want to push the nation backwards by merging state with religion, while a progressive, secular UCC will be a step forward in removing the ambiguity from the secular character of the Indian constitution. BJP only uses the rhetoric of secularism for this purpose, in a manner similar to how Bismarck in the 1870s introduced legal measures called Kulturkampf in Germany. They were aimed against Catholicism and the political opposition of Bismarck, under the name of fighting for a secular culture. This Hindurashtra ideal is a part of the fascist ideology of BJP and as the representative of the most reactionary section of the bourgeoisie, we see in their case the depths to which the bourgeoisie sinks in using religion for its purposes.

This essence of the demand for UCC by BJP can be supported also by an examination of the laws brought by the party. We start with the Muslim Women (Protection of Rights on Marriage) Act, 2019, i.e., the triple talaq act. This act was passed with much clamour by the BJP and covered by the media as an important victory towards Muslim women's empowerment. The facts of the matter reveal a different story. The fact that instant triple talaq was a very regressive element of the Muslim personal law is undisputed. It has been banned in 23 Muslim countries, including Pakistan and Bangladesh already. However, triple talaq was already made illegal by the Supreme Court judgement in 2017 and the passing of this act was only a ploy for political gains. Not only that, the act in question makes instant triple talaq a cognizable (i.e., the police can make an arrest without a warrant or prior court permission), non-bailable criminal offence, rather than just making it null and void. Even contesting such a case will be difficult for Muslim women as it has to be fought as a criminal case. Compare this for instance with the laxity of criminal law against bigamy applicable to Hindu marriages (Section 17 of the Hindu Marriage Act), especially in the light of all noise being made about polygamy in Muslim laws. IPC section 494 makes bigamy a non-cognizable (i.e., the police cannot make an arrest without warrant or prior court permission), bailable offence. BJP's hypocrisy about progressiveness and gender justice is revealed by the fact that some leaders of the party (including MPs and MLAs) have multiple wives. (We also have examples of unsecular acts in CAA and NRC, which are being discussed in another article).

The most comprehensive idea of BJP's vision of UCC, however, can be had from the Uttarakhand UCC. This UCC, firstly, excludes Scheduled Tribes from its scope (making up 3-4% of the state population). The decision to leave out the tribal population out of its scope is justified by mentioning the constitutional protection offered to these communities, but the constitution allows for application of laws to these communities after they are approved by the governor of the respective state. The act also refers to Part XXI of the constitution which mentions special protections enjoyed by the states of Nagaland, Assam, Manipur, Sikkim, and other territories. BJP which has been so keen on striking down the special status of Jammu and Kashmir, now wants to respect the special provisions for these states. The same is the case for minority communities who BJP wants to bring under the ambit of this law while keeping tribal communities out of it. Tribal communities have different forms of land "ownership" than the common private ownership and their concern about being a part of such uniform codes is not meritless. However, their lack of trust in such a process also owes to how the colonial and later the Indian state has been encroaching on their territories, threatening their very mode of existence. BJP which has only intensified this process, in its attempt to quell the political opposition by the tribal sections, while continuing to antagonise the minorities, gave us this code which is not uniform even in its scope. The UCC makes an even graver exclusion by not identifying Hindu Undivided Families as a category, clearly displaying that its sole target is minorities. It gives no clarity on how this act will treat them with regard to the tax exemptions enjoyed by them. The inheritance laws also show a failure to take positive elements from Muslim personal laws which place a limit on the net worth that can be willed at 1/3, dividing the remaining as per intestacy laws (laws that divide the assets in case of no will). Such a limit protects heirs against being dispossessed, preventing wills that can completely disinherit women or queer people and was recommended by a 2018 report on UCC by the law commission. While the UCC strikes down many regressive elements of Muslim personal laws like halala, iddat, puberty as the marriagable age, with regards to latter, it still continues with the age limits of 21 for men and 18 for women, failing to remove this obsolete difference between the two ages. The code also fails to even identify the LGBTQ+ community. Some of the worst provisions have been laid down in the case of live-in relationships. Completely defeating the very purpose of such voluntary arrangements, it almost transforms a live-in relationship into a state-sanctioned marriage with the need for registration, which the registrar has the power to refuse, besides the authority for conducting summary enquiries. Marriage and live-in registration are also open for inspection by any person after submitting the application and fee for it, making inter-faith and inter-caste relationships prone to harassment. Thus, we see how this code only manages to achieve a dissolution of some of the regressive aspects of Muslim personal law, while failing to draft any major progressive measures (except dissolving the category of the illegitimate child) beyond the scope of Hindu code bills and the special marriages act. Worse it gives quarter to the reactionary tendencies in society by compromising privacy of personal relationships in the cases of both marriages and live-in relationships, making inter-faith and inter-caste relationships tougher. A failure to even include the entire population under this "uniform" code reveals it to be just another measure targeting the Muslim community.

The most important conclusion that we would like to draw here is that one cannot evaluate UCC isolated from the politics and the ideology of the party enacting it. UCC plays an important role in the vision of a Hindurashtra that BJP has for India. By denying the minority communities their individual identities as recognised in the constitution through these personal laws, it takes one step towards this goal. Minority communities, being persecuted as they are today, fear not only a loss of their identiy through such an act, but also that it will set a precedent allowing the state to interfere even further, with a threat to their freedom of religion. The narrative of Hindurashtra certainly lends it credence. This persecution only pushes these communities in further embracing these identities and thus defend even the regressive elements of their personal laws, which then the BJP weaponises by portraying them as fanatics. Thus, we must oppose the UCC as it is being demanded by the BJP today, both because of it being a political tool towards their reactionary ends and also for its regressive content that it bundles along with the reforms in Muslim personal laws. BJP has further shamelessly tried to put a wedge between the Muslim women's Muslim identity and womanhood for their political gains, just as they have also tried to use tribal communities for political gains by keeping them outside the scope of UCC, while engaging in active destruction of their spaces through the dilution of the Forest Act etc. The regressive approach of BJP and RSS towards women, their sect's justification of the Sati system (Roop Kanwar's case in 1987, for example) and the Devdasi system and glorification of women's role as domestic slaves in the name of sacred relationship exposes its hypocrisy. Those who justify the Brahmanical rituals performed at the time of marriage, which give religious legitimacy to the secondary status of women, talk about a uniform civil code and at the same time ban inter-religious marriages.

As progressive members of society, we must continue to struggle to achieve progressive reformation of laws, including the regressive elements of Muslim personal laws. We must also see UCC as an important part of moving in the forward direction with regards to secularism when implemented correctly. But all of this is only really possible under a government that is really secular, which respects the separation between state and religion. Complete separation of religion and state should form the background to this. Without this preliminary condition being satisfied, we can't arrive at an actual progressive, secular law. Such a law must embrace all the citizens and with regards to various customs, attempt to preserve their best aspects, while amending the regressive ones. This can only be achieved when civil laws are stripped of religious connotations and are appraised as customary practices. A popular movement that struggles for such reforms is the only way possible to force reluctant bourgeois democratic parties too in undertaking taking such a task. It is also important to note that any such a democratic victory if won will still remain within the bounds of bourgeois democracy and is thus very likely to be of a compromising character, besides being prone to dilution in future, and will likely suffer from ineffective implementation owing to the very nature of class society. Thus, such democratic struggles must necessarily be a part of the wider class struggle, which alone can secure such gains, while also opening the avenue for development beyond the family laws of bourgeois society and private property.

It is imperative today to not fall prey to the illusions that the fascist BJP is selling. We must oppose it, while not acquiescing to the demands of conservative sections of the minority community either and fight against the nefarious machinations of the BJP for building a Hindurashtra while carrying on the fight for the separation of state and religion.