Should India Have A Uniform Civil Code?

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After such a miraculous victory, the BJP will be expected to deliver on its promises. I want the Government to touch upon education, something it did not reform at all in the last five years. However, for its core base to be satisfied; the BJP’s truculent defence against not fulfilling perennial promises will not produce happy customers. One of these promises is the Uniform Civil Code: a social issue which harbours much less consensus and separates the political class much more sharply. This has been an issue ever since Dr Syama Prasad Mookerjee argued that the UCC should be brought, instead of reforming just Hindu personal law in the Parliament, when the Hindu Code Bill was brought in. Dr Mookerjee, an ever-daring and a ferocious orator was as right, as he was in protesting the matter of a permit-system in Kashmir.

Although India’s first Prime Minister extensively espoused the theme of ‘unity in diversity’; he, in addition to his progeny, was the victim of too much pluralism. They could not get past the replacement of personal laws in the realm of marriage, divorce, adoption, inheritance and maintenance, entirely based on tradition, customs and holy books, with a uniform civil code. A valiant effort, supported by Dr Ambedkar who let it remain voluntary. Dr Ambedkar’s disdain for religion was apparent and it had a very significant influence on civil laws. He even resigned when the Hindu Code Act was distorted by various amendments; many including Sardar Vallabhai Patel and our first President Dr Rajendra Prasad expressed concern on those reformist ideas.

The uneven implementation of civil law for exclusively one community had its own social and political reactions. The history of imposing a uniform civil code has been rooted in fractious debates and protests, stemming clearly from the colonial ‘divide-and-rule’ deception. However, more interestingly, that not only worked but manifested itself into something precise in modern India, when the recent Shayra Bano verdict in 2017 came up.

It evolved into an argument for gender justice. It is incontrovertible that arcane practices were not the most women-friendly. However, rather parochially, although not without reason, the debate is restricted to just abolishing specific items such as nikah halala or the recently judicially proscribed triple talaq. That view misses a whole host of issues namely constitutional freedom of religion, the nature of secularism of the state and how united our country should remain etc. It’s an important view politically, however, and my argument does not lie in diminishing it, only to point out that it is merely one aspect of a gigantically conflicted issue.

There were many in the Constituent Assembly who wanted ours to be a godless constitution akin to the Americans. The right argument won in the end when instead of western ‘negative’ secularism, and the ‘separation the church from the state’; we adopted the positive form of secularism where we treated all religions equally: bringing the temple, the mosque, the gurudwara, the church and all others to be equally served by our Government. Ours is a civilisation that enjoys religion, although certainly not dependent on it. In India, various religions inter-mixing culturally is a beautiful thing to watch.

The Detractors

What does a UCC look like? If the Constitution makers wanted it, should it not have been a legitimate and legally enforceable right instead of being a directive principle of state policy? Fundamental rights trump the latter. Apart from these main questions intended to confound, the detractors also like to point out that the UCC will very likely in some way usurp Article 25 (right to freedom of religion) along with Article 29 and 30 (minority rights). How will the beauty mentioned above be upheld?

If Dr Ambedkar with his almost militant desire to ensure a radical shift from, in his view, archaic and inequitable structures of society, towards progressive social change could not achieve it, how can anyone? Enshrined in these arguments is an additional nugget that, as always, Indian laws on sensitive topics are obdurately static. Only propelled to change if there is a crisis. The legally formidable parliamentarian Mr Asaduddin Owaisi has said that it will also affect the people of the North-East and questions whether Hindus would be willing to give up the Hindu Undivided Family (HUF) tax rebates.

It is also politically unfeasible as it is, as of now, only supported by the BJP and again, is a subject matter rife for polarisation. On this point, there should be no exaggeration or accusation of a political ruse for vote bank politics; it is clear that many in the minority, as demonstrated by their visible objections, feel that the UCC is a power-grab by the majority community in the field of civil law- to impose their own ‘Hindu Uniform Civil Code’ and take away whatever religious traditions they possess at the moment.

The Supporters

To retort with a few questions: should Indians be practically bound to their religious communities, or should that, supplant the constitutionally valid laws made for all? Are not the Directive Principles of State Policy, if not disparate with Fundamental Rights, essential to the Governance of the country according to Article 37? Most importantly, it has been made clear by the relevant passages of two judgements, even excluding the famous Shah Bano judgement, namely Sarla Mudgal v. Union of India – (May 1995): “Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27.” And John Vallamattom v. Union of India- (2003): “Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is not a matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the matter of secular character within the ambit of Articles 25 and 26 is a suspect legislation“.

As to Mr Owaisi’s argument about HUF tax rebates, the Hindus have already been subjugated to religious reforms, with four different laws such as the Hindu Marriage Act, 1955. I do not think giving up tax rebates, which could easily be transferred to all appropriate businesses, is something that Hindus would find excruciating to forego.

If we have a common criminal law for all religions (or at least a democratic government amending those laws state by state, which still, applies equally on all religions), then a hindrance for having a common civil law based on fear of majoritarianism is rather deceptive. The UCC, that I and most people support is one that is constitutionally valid and based on human rights, gender equality and positive secularism. The question is – does Mr Owaisi not trust the courts? For that fear, should we, according to Mr Owaisi relegate ourselves, instead, in place of laws made by people we chose to represent us, be governed in civil law by texts written thousands of years ago by communities we did not choose to be born into?

The point about Sabarimala is well-taken, though misguided. Sabarimala was not about either marriage, succession etc or any other thing that the UCC touches, but about how, a particular temple of Swami Ayyappa’s had a specific practice, followed by women too, which ensured that that deity would be ‘celibate’. An essential test of that practice was carried out by the Supreme Court. Wrongfully, the Supreme Court made its decision. Be that as it may, the Court entering religion should be hesitant and careful. This is not about the Government interfering in religious matters, but in matters of law for families.

Democratically elected governments, not religions should have that right. This is why I feel we took the right decision in our choice of secularism. All religions would be equally benefited by the state, instead of all religions being shunned by a disinterested, even aggressively prohibitive state. The UCC by a Government would do exactly that. It would also curb the spokespersons of religious communities, who with their content interpretation, can play intentional Chinese whispers with the word of God.

According to some people, the UCC would be disastrous. Does Goa, a beautiful state, show anything acrimonious between religions or have a legitimate claim to be branded an unsuccessful state? It has a UCC, courtesy of its Portuguese colonial past. The Special Marriage Act, 1954 provides an example of law under which anyone, no matter their beliefs, can register their marriage. The Law Commission last year said that the UCC, at this stage, is neither desirable nor necessary. This epochal election has changed things. The non-mandatory UCC is a harbinger of equality and justice to all communities without sacrificing freedom or identity. The BJP must reiterate its support to draft and introduce a UCC which is optional, consultative and deliberative. There will never be a better time than in the coming five years.

The power and acceptability of the BJP’s UCC must lie in its optional nature. Something slow, but something right.

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