Code that is neither uniform nor lawful - Hindustan Times

Code that is neither uniform nor lawful

Feb 25, 2024 01:19 PM IST

Uttarakhand UCC is only the latest of the State’s attempts to control intimate relationships. It should be consigned to the dustbin of illegality

Earlier this month, the state of Uttarakhand passed, with much fanfare, what it calls the Uttarakhand Uniform Civil Code (UCC). The Uttarakhand UCC is popularly believed to be a state-level precursor to a larger-scale, potentially nationwide attempt to put into place a “uniform civil code”. The exact contours and nature of this Code have been contentious and long-debated: even in the context of Uttarakhand, experts have questioned how “uniform” it is, given that it excludes the Scheduled Tribes (STs) from its ambit, and also leaves the Hindu Undivided Family (HUF) untouched. It is evident, therefore, that the contention around this project is far from over.

The Uttarakhand UCC is best understood as a continuation of an existing legal framework, rather than something new and unprecedented (PTI Photo)
The Uttarakhand UCC is best understood as a continuation of an existing legal framework, rather than something new and unprecedented (PTI Photo)

That apart, however, there is one feature of the Uttarakhand UCC that has attracted particular scrutiny, especially when set against the claim that a UCC is essential to advance the rights of women – the regulation of “live-in relationships” (or, as euphemistically defined under Indian law, “a relationship in the nature of marriage”). The law requires live-in partners to notify the registrar about the relationship within 30 days of entering into it, following which the registrar is expected to conduct an investigation, and formally register the relationship if everything is above board. Failure to notify the registrar carries criminal sanctions.

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This provision has, naturally, attracted mockery and derision, with people wondering how it will ever be possible to enforce a law seeking to regulate something as fluid as a relationship. Others have raised serious concerns about the infringement upon the right to privacy, and pointed out how this law will be used as a weapon of harassment. These concerns are well-taken. However, it is crucial to understand that the Uttarakhand UCC is only the latest in a series of laws – going back to colonial times – that have sought to enlist the services of both the State’s coercive apparatus, as well as social pressure, to drive “disapproved” relationships beyond the pale.

Consider, for example, the Special Marriage Act of 1954. The Special Marriage Act was meant to provide a legal gateway to marriage for inter-faith or inter-caste couples, whose union might not be sanctioned by their relevant personal laws. However, the Special Marriage Act also has a set of provisions called “the notice and objection regime”. According to these provisions, notice of an impending marriage under the SMA must be provided to the registrar in advance, who – in turn – is required to enter it into a register, as well as display it prominently outside his office. The SMA also authorises any person to make an objection to the impending marriage, and puts the marriage on hold until the registrar decides the objection.

The “notice and objection regime” is borrowed from English matrimonial law, where the basic idea was to prevent fraudulent or otherwise illegal marriages from being solemnised (for example, if one of the parties is lying about their age). In the context of India, however, it has become a weapon of abuse, especially in cases where an inter-faith or inter-caste couple is marrying against the wishes of their families. The SMA’s notice and objection regime’s forced publicity thus provides a fillip for social pressure, intimidation, and even violence. It hits precisely those vulnerable and marginalised couples who are most in need of the law’s protection.

During the recent hearings before the Supreme Court on marriage equality – where the present writer was also involved – the notice and objection regime was challenged. It was pointed out that granting marriage equality to same-sex couples would be meaningless if they were, nonetheless, subjected to the coercive framework of the notice and objection regime. Regrettably, however, the Supreme Court refused to decide the issue one way or another.

More recently, Uttar Pradesh’s anti-conversion law has set up a similar regime of surveillance in the case of inter-faith marriages, and the Allahabad High Court’s strict interpretation of the law has even given it retrospective effect.

The Uttarakhand UCC, therefore, is best understood as a continuation of an existing legal framework, rather than something new and unprecedented. Indian law has long looked down on socially “unsanctioned” relationships – whether inter-faith, inter-caste, or live-in – and has sought to penalise individuals who enter into such relationships. Because it is no longer acceptable for the State to directly ban such relationships, in essence, it has outsourced the work of coercion to society – and socially powerful groups – through legal devices such as the notice and objection regime, and Uttarakhand’s registration requirement. The State thus facilitates social pressure, bullying, and intimidation, and tries to accomplish indirectly what it cannot forbid directly.

If, therefore, our constitutional promises of privacy and dignity are to be realised, and if the freedom to take intimate choices is to mean anything in India, not only the Uttarakhand UCC’s egregious live-in relationship provisions have to go, but the entire structure of laws that seeks to control intimate relationships must be erased.

In this context, the outrageousness of the Uttarakhand UCC’s provision has given the judiciary a fresh chance to consider the issue, after its abnegation in the equal marriage case. One hopes that it is an invitation that, at the second time of asking, will be taken up; and that the State’s attempts to control intimate relationships – whether directly or indirectly – be consigned to the dustbin of illegality.

Gautam Bhatia is a Delhi-based advocate. The views expressed are personal

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