It is a strange phenomenon that the votaries of Uniform Civil Code (UCC) are often great believers in the ‘love jihad’ myth. That ‘love jihad’ is an untruth, is surely known even to those who fulminate most angrily about it. What lies at the foundation of the ‘love jihad’ lie is a fundamental discomfort with modernity. Endogamy is, of course, the backbone of sectarianism. Inter-faith marriages are one of the natural threats to sectarianism.

‘Love jihad’ laws seek to criminalise the act of ‘forced’ religious conversion for marriage. The UCC would bring an end to such laws. Presumably, when the process and legalities of marriage are common to all, there would be no rationale for conversion, no need for 30 days advance notice under the Special Marriages Act or for confusion regarding religious rites necessary for a valid marriage. Into that heaven of freedom, let my country awake. Surely, concerns regarding ‘love jihad’ and the laws designed to prevent this mythical evil would no longer be necessary.

The proponents of the ‘love jihad’ myth, of course, would not be happy with this version of the UCC. The ideas behind the pernicious ‘love jihad’ myth are patriarchal, sectarian, communal and regressive. The Delhi high court has recently observed that “the traditional barriers of religion, community and caste are slowly dissipating” and that the time for the UCC may very well have come. However, the kind of progressive UCC envisaged by the Delhi high court does not seem to be on the horizon.

There are views for and against the UCC. The Union government has the UCC as part of its agenda, declared in its manifesto in advance of the 2019 elections. Supporters of the government claim that the UCC is inevitable. Religious minorities largely and some strands of secular thought oppose the UCC, as it would tend to violate the constitutional guarantees given to religious practices of minorities and their personal laws. The debate is well known and need not be rehashed. Assuming that the UCC is coming, what would it look like?

While the supporters of the UCC want to clamour for it rather enthusiastically, there is little, if any, clarity as to what this UCC will be like. From public pronouncements and the general Hindutva tendencies of these supporters, the UCC seems to be taking on shades of Shastric law. Yet, are there takers for traditional Shastric law in modern India?

The pre-1955 position in India, before the Hindu Code was brought in to reform Hindu laws, meant that women largely did not have the right to divorce, to property, or to personal freedoms which have now become irreversible. Considering the fact that the most prominent Bharatiya Janata Party (BJP) chief minister Yogi Adityanath has publicly stated that women ‘need protection’ and not independence, and another recently removed chief minister expressed great dismay over the national security threat posed by women wearing torn jeans, the BJP does seem to be singularly comfortable with misogynists amongst its ranks.

The BJP’s ideological parent, the Rashtriya Swayamsevak Sangh (RSS), still does not admit women into its ranks, preferring to maintain a separate women’s wing which does not in any way rival its male counterpart in influence, standing or visibility. The BJP’s women leaders only speak out about violence against women when it is politically expedient, and certainly not when such violence takes place in BJP-ruled states. The possibilities of a gender-just UCC under the BJP are slim to none.

However, assuming that the BJP’s conception of the UCC is indeed gender just and obliterates the realities of religious identity in matters of matrimonial law, succession, maintenance, guardianship and adoption. What does it do to the ‘love jihad’ narrative? Can the ‘love jihad’ myth coexist with a nation under a UCC where inter-faith marriages will just be marriages, without the State recognising any distinction between marriages within a faith or without.

Will the Hindutva model of UCC pass the constitutional legal test?

The UCC as envisaged by the votaries of Hindutva is doomed to fail. It will certainly not pass the constitutional legal test. One can hope that it will not even pass the popular democratic test of elections. We do need gender justice, and we need it now. It is non-negotiable. Yet, we are faced with a government which restricts free speech in the name of freedom, makes us insecure in the name of national security and divides us in the name of unity. This government cannot be trusted with an initiative like the UCC.

Under Indian family law, the issue of maintenance, child support and adoption have essentially been secularised. All women are free to claim maintenance and custody under the Domestic Violence Act. All are free to adopt under the Juvenile Justice Act. The lack of uniformity is restricted to certain areas of family law, namely, rites of marriage, proceedings for divorce and matters of succession. These are intimate matters of lived experience, and it may not be desirable or possible to seek to change them at the mere stroke of a pen, especially when the pen is likely to be wielded by a government which has a worldview at odds with progressive principles. It seems facile to expect gender justice from a government where threats of abuse and rape are rained on vocal women on social media every day. The kind of sexual violence against women seen in India, especially in Uttar Pradesh, is debilitatingly terrifying.

The hope of a unifying UCC as envisaged by the Delhi high court, for empowered independent women, is absolutely at odds with the popular Hindutva myth of ‘love jihad’ which seeks to infantilise and disempower women. Women, in India, in any community have it worse than men. The danger posed by the present government and its ruling ideology is that the 66-year-march of steady increase in women’s rights and independence, may yet be reversed. The situation we are in is far from ideal. The Hindutva UCC narrative may end up making it worse.

Sarim Naved is a Delhi-based advocate.

Click here to subscribe to ESSF newsletters in English and/or French.