Berkley Center

As India nears general elections in 2024, there is as usual a considerable discursive churn that comes with the upswing of an electoral cycle. This has, expectedly, been accompanied by a resurfacing of policy proposals that are socially and religiously decisive. A proposal by the Bharatiya Janata Party (BJP) gaining considerable traction in this cycle, enough for it to potentially become an election plank for the current ruling party, is the implementation of the Uniform Civil Code (UCC), a longstanding but partially dormant proposed legislative effort to abolish community-specific personal laws in favor of a more standardized and uniform set of family laws. Creating an aggregate and coherent proposal for a countrywide UCC from a diverse range of more discrete issues, however, is anything but straightforward. Two broad reasons stand out.

The first reason has to do with how the articulation of varying, even contradictory visions of reform in the constitution of India has led to a diverse range of rationales for encouraging or foreclosing potential pathways of change. The constitution contains all of these provisions simultaneously—specific articles that safeguard the rights of the minority communities qua communities; a Sixth Schedule that provides specific tribes the autonomy to have their own self-selected councils (most of them in the northeastern part of India) for regulating all the personal and communal affairs of the respective communities; and Article 44 in the Directive Principles that instructs the government to eventually implement a uniform common code across the entire country. In other words, the constitution of India is a document that juxtaposes several blueprints of social life, and maintaining this constitutional birthmark in whatever dynamic and patchwork fashion has been a priority post-independence.

A second reason, perhaps even a corollary to the first, is that the dynamism of this constitutional vision has been maintained through a segmented and disparate process by which the reform of personal law codes has been historically undertaken. A consequence of this has been that, if evaluated through the lens of legislative and judicial action, there have been different rates and trajectories of social change for different religious communities. One may look at the complex trajectory of succession rights for Hindu women as an example.

First, a legislative act passed in 2005 amended the Hindu Succession Act to give women an equal share of rights in ancestral property. In subsequent rulings, the Supreme Court applied this in a retrospective effect. At first glance, this might seem like a modernization of family laws according to the principles of UCC. However, the recognition of this right is partially embedded in the background of a larger system of joint family governance called the Hindu Undivided Family (HUF), a way to organize the distribution of assets within a family. The elemental principle of HUF is that at the time of their birth, a son or daughter becomes a claimant to any family property or business assets registered as a HUF. A more motivational basis for this entity was the preservation of the joint family as the basic unit of Hindu society by making the alienation of assets under HUF more difficult, given the consensus required of all family members for this to occur. Registration of family property or family businesses under a HUF was further incentivized by nominally favorable tax exemptions, thus giving family arrangements registered as a HUF a benefit in the fiscal setup and tax regimes of India.

The passage of UCC should, in principle, necessitate a rationalization of this registration process according to modern tax regimes of family property and principles of corporate governance for businesses. How this transition, with all its switchover costs, would occur under UCC is anybody’s guess. This story becomes even more complicated if one notes that the HUF has remained abolished in the state of Kerala since 1976, thus creating a geographical unevenness arising out of the federal structure of the Indian polity. This is only one example of the staggered way in which the incrementality of personal rights has been established through judicial and legislative reform in India.

Given the social and legislative alchemy required for designing and implementing the UCC, it has generally been the case that some variation of a highly precautionary principle has been historically applied for the reformation of personal laws. This precautionary settlement might seem to be a consequence of the limited path-dependent measures that are possible given the uniquely pluralistic social fabric of India. But this settlement has also had the added effect of maintaining an unstable equilibrium that has cumulatively created multiple misaligned layers of social, legislative, and economic incentives resulting in a Gordian knot that is difficult to untangle. It is this complexity that dogmatic debates about the necessity (or lack thereof) of UCC's attempt to disguise, but with limited success. In this short article, I briefly outline three ways to reframe the issues of pluralism as features of unstable equilibrium.

First, we must acknowledge the contradictions or, at the very least, discrepancies that guide the constitutional principles underlying discussions around the format and the implementation procedures of the UCC. In other words, there is no coherent constitutional imagination about the significance of UCC for organizing the social reality of India. Neither is there anything like a suggested timeline to assess the opportune moment to implement the UCC countrywide. Successive governments have tended to defer adequately comprehensive reform, often in favor of a more piecemeal tinkering with specific legislative provisions, such as the Hindu Succession Act mentioned above. Too often, this is charitably understood as a quality of slow dynamism inherent in the Indian constitutional imagination. However, attempting to resolve the current dilemmas around the scope and possibility of UCC by deferring to the constitutional vision only results in a prolonged state of hysteresis.

Second, if tinkering with extant statutes has been the primary modus operandi of legislative reform, then the operational mode underlying this shift is to progressively rationalize individual elements of religious personal laws by creating further optionality of provisions or pathways of change for people to follow. One only must refer to the recommendations proposed in the report of the Twenty-First Law Commission of India published in 2018. The thrust of the report is to maintain the legally pluralist environment of India by making contextual adjustments to different systems of personal laws preferable over a uniform and standardized approach.

For example, consider the provision in Muslim personal laws that states that if a man dies leaving behind only daughters, then a share of his property will go to his siblings, thus making any relinquishment of the property by the late husband’s wife or daughters reliant on the siblings’ assent. The exact quantity of the share will depend on the number of daughters. Instead of discarding this provision wholesale, the 2018 report sought to amend it through an addendum that would make “proximity to the deceased rather than preference to male agnates [heirs]” the main criteria for succession. It is argued that this will also result in a lower administrative cost for the government. The path of least cost and the path of least resistance appears to coincide in such a legally pluralistic arrangement.

Despite the short-term flexibility that such a setup provides, what is not clear is its long-term stability or costs. Recent work in cultural economics has documented the adverse and unstable effects that such a self-reinforcing system of “conditional toleration” has had on the eventual possibility of religious freedoms and peaceful coexistence. At the minimum, this line of inquiry necessitates an increase in the length of the timeframe within which the effect of any legislative intervention is evaluated.

Third, it is one thing to want the UCC as an ideal and another to see if its uptake is even possible in a highly religious country like India. To put it otherwise, is it so easy to map a legislative idea of independent rights to a country in which there is still a symbiotic relationship between individuals and the associational groups, religious or otherwise, to which they belong? There is much evidence now that drastic misalignments between cultural changes, normative commitments, economic security, and an emphasis on individual rights are quite rare.

Current scholarship building on the World Values Survey shows that a shift from pro-fertility to individual-choice norms is strongly associated with low levels of religiosity and a concurrent drop in existential insecurity. In other words, reaching some cultural and economic tipping points might be important for a citizenry to even be amenable to a legislative change such as UCC. At the very least, for the UCC to not just remain at the level of formal procedure, there must be some accounting of the fact that religious and caste associationism provides a strong mode of social participation in a place like India, and these social models of cooperation are not likely to just be pushed aside by a more formal, legislative mode of coordination. Whether the UCC can persist as a set of purely formal rights that a citizen can accessibly invoke at any given time is a different matter.

It should be sufficiently clear that implementing a UCC cannot be a straightforward, high modernist enterprise. Hence, it is not surprising that the ruling government has not provided a draft bill for public consideration and has kept the lineaments of the proposed legislation sparse and skeletal. This deliberate under-specification of the design of the proposal has been explained in political terms as merely a tool of electoral expediency for the BJP or in doctrinaire terms as an alibi to inflict high dignitary burdens on the minority communities (especially the Muslims). But, political cycles and their effects can’t merely be wished away, and it would be misleading to say that UCC is an exclusively Hindu nationalistic and majoritarian project of social engineering. The force of these factors on determining the details of UCC is minor in comparison to the actual internal difficulties that arise from its aims and scope in a highly socially heterogeneous environment like India. How long this unstable equilibrium can sustain remains an open question.