The framing of a new law is not just a legislative process; it ought to reflect people’s aspirations and safeguard the cherished liberties the Constitution contemplates. So, the question to ask is: Does Uttarakhand’s Uniform Civil Code (UCC) manifest a form of social engineering, designed to optimise the welfare of both individuals and the State?
Thanks to the majority that it enjoys in the House, the Pushkar Singh Dhami government got the UCC passed last week, making the bill a lived reality for the residents of Uttarakhand. The proposed law, however, contains a raft of provisions that appear to limit individual rights, the agency of women, and the freedom of adults to form intimate associations without the State’s muzzle.
To start with, the UCC criminalises live-in relationships if not registered with the state within a month of forming such unions. The bill gives the registrar the authority to review the declarations made by potential live-in partners, carry out an “enquiry” to make sure the couple’s relationship is not “prohibited”, and even call the pair or anyone else (including someone from their families). The exercise is merely “for the purposes of record”, as the Code carefully notes. If one or both partners wish to “terminate” the live-in relationship, a similar exercise is to be followed. Sending a live-in couple to jail for a period of up to three months for not informing the state and the police of a cohabitation union clearly falls afoul of adults’ freedom to create an intimate zone of privacy without interference from the State.
A nine-judge bench of the Supreme Court, in the right to privacy judgment (2017), declared that the formation of human relationships falls within the intimate zone because such unions are relegated to the sphere of the home or the private zone and they involve intimate choices. It was unequivocal that the intimate zone is shielded from State regulation because relationships operate in a “private space” and decisions taken in a private space in the exercise of an individual’s autonomy are “private activities”.
One of the official justifications in support of compulsory registration of live-in relationships is fear of crimes against women by cohabiting partners. First, there is no empirical evidence to suggest that maintaining official records of relationships can prevent crimes against women. According to the National Crime Records Bureau’s (NCRB) annual report of 2022, a majority of crimes against women under the Indian Penal Code were of cruelty by the husband or his relatives (31.4%), signifying protection of matrimony is not a guarantee of a safe space for women, nor does registration do much to ameliorate the situation. Second, the registrar is required to forward the records of live-in relationships to the local police, exposing the couples and their “intimate zone” to unwarranted scrutiny, at the whims of law enforcement. Third, while the UCC prescribes no jail term for married couples if they choose not to register their unions, those in live-in relationships can be put behind bars, questioning the rationale behind the negative discrimination.
The proposed law further poses a grave danger to the agency of an adult person by differentiating between the legal age of a woman to marry and her legal age to form a live-in relationship without her parents’ involvement. The Uttarakhand UCC provides that while a woman can marry at 18, her parents must be informed if she is below 21 when she enters or terminates a live-in relationship, thereby statutorily robbing the unrestrained choice of union that partners of a live-in relationship may have. The Supreme Court (SC) has consistently remained a vanguard of autonomy and agency by holding in a spree of judgments, including Shafin Jahan (the Kerala Hadiya case), that matters of clothes, food, ideas and ideologies, love and partnership are within the central aspects of identity. The proposed law, however, tends to diminish the agency of an adult woman to enter into a relationship of her choice by statutorily involving her parents.
Another red flag in UCC is manifest discrimination. There seems to be no intelligible difference as to why a live-in relationship, which should be “in the nature of marriage”, must be registered to ward off a jail term but a marriage need not. It further does not explain why a woman cannot have a live-in relationship without the knowledge of her parents if she is less than 21 but she can marry a man of her choice after turning 18. Additionally, an order of the registrar declining registration of marriage can be challenged before the registrar general but refusal to record a live-in relationship cannot be appealed against under the UCC.
In Navtej Singh Johar vs Union of India (2018), a Constitution bench decriminalised homosexuality on the core ground that it discriminated between heterosexual persons and non-heterosexual persons, although both groups engage in consensual sexual activities. The top court was emphatic that the State cannot create an artificial distinction between two classes unless there are sound principles of intelligible differentia. In the right to privacy judgment, the nine-judge bench underscored that discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life do not accord with the “mainstream”. While married couples indeed stand on a different footing socially, there is no palpable explanation of how a law can penalise live-in couples for exercising their agency without the State’s intervention.
The proposed law on live-in relationships, notably, has also left out transgenders and LGBTQ persons from its ambit, even as the SC judgment in the National Legal Services Authority vs Union of India (2014) held that the State must recognise persons who fall outside the male-female binary as “third gender persons” and that they are entitled to all constitutionally guaranteed rights. By doing this, the State has clearly shown its indisposition to regulate relationships beyond the binary of sex and gender, raising questions if the UCC aims to contribute towards eliminating the inequality of the power structure in all relationships, thereby preventing exploitation and subjugation.
The State’s endeavour in democratising private space must promote compliance with constitutional values and the attainment of social justice. But Uttarakhand’s UCC appears to be a threat to liberty and privacy while chipping away at the agency of consenting adults.
The views expressed are personal
Utkarsh Anand is Legal Editor at the Hindustan Times. He writes on law, judiciary and governance. ...view detail
Code that lets the State limit personal freedoms
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12.02.2024
The framing of a new law is not just a legislative process; it ought to reflect people’s aspirations and safeguard the cherished liberties the Constitution contemplates. So, the question to ask is: Does Uttarakhand’s Uniform Civil Code (UCC) manifest a form of social engineering, designed to optimise the welfare of both individuals and the State?
Thanks to the majority that it enjoys in the House, the Pushkar Singh Dhami government got the UCC passed last week, making the bill a lived reality for the residents of Uttarakhand. The proposed law, however, contains a raft of provisions that appear to limit individual rights, the agency of women, and the freedom of adults to form intimate associations without the State’s muzzle.
To start with, the UCC criminalises live-in relationships if not registered with the state within a month of forming such unions. The bill gives the registrar the authority to review the declarations made by potential live-in partners, carry out an “enquiry” to make sure the couple’s relationship is not “prohibited”, and even call the pair or anyone else (including someone from their families). The exercise is merely “for the purposes of record”, as the Code carefully notes. If one or both partners wish to “terminate” the live-in relationship, a similar exercise is to be followed. Sending a live-in couple to jail for a period of up to three months for not informing the state and the police of a cohabitation union clearly falls afoul of adults’ freedom to create an intimate zone of privacy without interference from the State.
A nine-judge bench of the Supreme Court, in the right to privacy judgment (2017), declared that........
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