How Uniform Civil Code impacts customary laws in Northeast India

The concept of a Uniform Civil Code (UCC) is mentioned in part IV of the Indian Constitution containing Directive Principles of State Policy. Article 44 states, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” In the year 1973, the landmark case of Keshavananda Bharati v State of Kerala noted that “desirable as it is, the Government has not been able to take any effective steps towards the realisation of this goal. Obviously no Court can compel the Government to lay down a uniform civil code even though it is essentially desirable in the interest of the integrity, and unity of the country.” Since then many references have been made to the need for UCC. The recent development is the Law Commission’s notice on 14 June 2023 soliciting the views of the public on UCC. 

The UCC essentially deals with civil matters of law related to marriage, divorce, inheritance, maintenance, adoption, etc. These are the very matters governed by personal law or customary law amongst various communities in India with different and distinct cultural identities. These are also matters that affect women and other gender identities adversely in patriarchal and discriminatory societal systems.

Reference to Uniform Civil Code in Indian Jurisprudence

Here’s a list of notable cases from the Supreme Court (SC) of India that referred to the need for or difficulties in the absence of UCC along with their respective context.

• In 1985, the case of Mohd. Ahmed Khan v Shah Bano Begum reiterated the State’s duty of securing a UCC. It was in the context of deciding a plea for maintenance of wife under section 125 of the Criminal Procedure Code, which overruled provisions of personal law. 
• In the same year, Ms Jordan Diengdeh v S.S. Chopra  A Khasi lady from Meghalaya practising Christianity got married to a Sikh husband under Indian Christian Marriage Act 1872. In this case, the wife filed a petition for divorce under Indian Divorce Act 1869. It was a case of irretrievably broken down marriage yet not supported by the applicable laws for divorce. The court emphasised that the time has come for Article 44 to function and it was deemed “necessary to introduce irretrievably break-down of marriage, and mutual consent as grounds of divorce in all cases.”
• Almost a decade later, another important case Sarla Mudgal v Union of India observed, “It appears that even 41 years thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949.” Referring to Hindu Code Bills, the judgement made a statement that- “when more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India.”
• The Lily Thomas v Union of India judgement in the year 2000 again observed the need for UCC while adjudicating the issue of whether a converted Hindu spouse will be charged under the offence of bigamy. It was held that conversion for second marriage would not dissolve the first marriage. 
• The question of adoption as a fundamental right irrespective of personal laws was dealt with in the Shabnam Hashmi v Union of India case and the need for UCC was emphasised in the year 2014. 

Apart from mentions in legal precedence, the hue and cry for the implementation of UCC have been part of the political agenda of right-wing groups especially the Bharatiya Janata Party (BJP). The party manifesto 2014 pledged to UCC on the pretext of gender equality and protection of women’s rights. The recent momentum given to the topic by the same party is surely targeted at the upcoming Lok Sabha elections of 2024. 

However, the route for UCC from an ‘endeavour’ to actual ‘enforcement’ cannot be an easy one. It was evident from Amit Shah’s statement in Nagaland that UCC will not affect the Christian and Tribal population of the North East.

Reaction from northeastern states

While from political leadership to religious groups and community organisations to noted individuals from the North Eastern states have been voicing opposition to the UCC, the Assam Chief Minister Himanta Biswa Sharma has been vociferous in support. In Arunachal Pradesh, the National People’s Party decided to oppose the immediate enforcement of UCC. The Chief Ministers of Mizoram and Meghalaya, Zoramthanga, and Conrad Sangma expressed opposition to UCC. Tripura being a state with BJP majority lawmakers, UCC may gain some positive ground. However, there have been good reasons to expect a strong and defining hurdle from the TIPRA Motha party headed by Bubagra Pradyot Manikya who led the party to an impressive first-time victory of 13 seats in the 2023 Vidhan Sabha election becoming the opposition party. 

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Given the trajectory opted by the BJP-ruled governments in Assam from 2016, it will not come as a surprise, if Assam endorses and implements whatever the Modi government puts out in the name of UCC. Even if the communities governed under the sixth schedule areas will be exempted, it will affect the other communities practising their customary rights. Based on the enumeration of the 2011 census, Assam has a population of 61.47 per cent Hindus, 34.22 per cent Muslims and 3.7 per cent Christians. Due to the default settings of the instrument of Census, most of the tribal communities of the state were listed as Hindus as they were not Muslims or Christians. In practice, the belief systems of these communities differ and sometimes contradict the common traits of Hinduism. But, over the decades, Brahmanism and Sanskritisation influenced the customs and cultural practices of these groups vehemently. Now what we see is a mix of traditional practices and Brahmanical adaptations.

One thing to note here is that reactions are mostly coming from men. Whether it is from political leadership, community organisations like Naga Hoho, or Church leadership, we do not see any women’s group voicing their stand or concerns on the issue.

Also Read | Keep Arunachal out of UCC purview, tribal body urges Law Commission

Constitutional support for customary laws

In the other parts of the country, the debate is triggering religious aspects while for the North East states, UCC collides with the customary rights of different communities. Customary rights are prevalent, especially in the Sixth Schedule areas (Article 244) of the North East states and are protected within the ambit of Article 371 of the Constitution with special status to states regarding lawmaking. 

The few cases mentioned here from the Supreme Court Jurisdiction observed the difficulties faced in certain matters in the absence of a uniform code. Similarly, there have been instances where cases under customary law were difficult to adjudicate due to conflicting customs or laws involved. 

• In the Wilson Reade v C.S. Booth case of 1958 under Gauhati High Court, the right to take part in the election process from a Scheduled Tribe (ST) reserved seat by a person of Anglo-Khasi origin (mother Khasi and father European) was adjudicated. In this matter, the Anglo-Khasi person was held to be a Khasi as the community follows matrilineal ties.
• In A.S. Khonphai v Stanley D.D. Nichols Roy, it was a question of claiming clan identity for a person born of a Khasi father and an American mother. A person cannot be considered a Khasi without a clan and in this case since the mother was non-Khasi, clan identity could not have been drawn. The difference in customs amongst different clans was highlighted in the case to argue that absorption and recognition were possible in the community of persons.
• Khasi women marrying non-Khasi men and inheritance rights of their children have been a contested ground in the ambit of customary laws. Proposals are advocated for change in the matrilineal system of inheritance by introducing equal shares to men as well, in the Khasi Inheritance of Property Bill 2021. 

Gender equality within customary practices

The stand of women regarding the debate on customary rights versus uniform civil code is crucial because most of the matters involved adversely affect women. Be it property rights through inheritance or marriage and divorce-related matters, women under the governance of customary laws have been experiencing discrimination for long. Patriarchy is inherent in all the social systems of the different communities of the North Eastern states whether governed under customary laws or regular constitutional provisions.

In fact, given the absolute negligible participation of women in the traditional systems of leadership under customary practices, women’s rights are hardly represented. Whether it is the Village Councils of Nagaland or the Durbars (traditional village councils) of Meghalaya, women’s leadership in decision-making is a rare sight. Even amongst the communities drawing matrilineal ties such as Khasis and Lalungs, it is evident that regarding property rights, women are mere custodians and not the decision makers of the use or disposal of land. 

It is argued that customary practices protect the community lands from alienation from others. However, the nature of the relationship of tribal communities with land and resources itself is changing. Individual holdings and commercial interests are hugely making way. In this context, under customary practices, women are set to lose out on opportunities of the modern day.

While the usual norm has been to either romanticise the customs of different communities (especially indigenous) or tribes as better and liberating or to denigrate them as not mainstream enough, it is essential to recognise the lack of homogeneity and the changing nature of these practices. To overcome the barriers of customary rights, women sometimes seek intervention from the courts. For instance, the Naga Mothers’ Association has been taking legal recourse to assert women’s right to political participation. Therefore, whether women of this region would fare better under customary laws or the possible implementation of the Uniform Civil Code needs inclusive discussions and better understanding. 

Implications of implementation of Uniform Civil Code

Uniform Civil Code has found mention several times since the making of the Constitution. The recent momentum gained by the debates around it even without a proposed draft is no doubt part of the political agenda of the ruling party in India. 

In this context, I would like to argue that whether it is existing personal laws or customary rights in the civil matters of marriage, divorce, or property rights, gender-based discrimination has been inherent. Owing to the shackles of caste fragmented patriarchal society of India, even progressive judgements failed to bring much positive change for women and other gender identities. Therefore, a patriarchy-ridden Hindutva-driven path toward enforcing UCC is the wrong means to the right end. When it comes to the customary rights of various communities in the North East states, it is high time to introspect and welcome changes toward gender equity. Customary rights are the essence of their ways of life rooted in the land and nature. Yet, intervention from the legislature or judiciary in setting certain gender equity-based enforceable guidelines for customary laws would be a welcome measure as change from within will be a long battle where women and other gender identities are always at the unjust end. 

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