By Chiranjib Haldar
There are two crucial facets of the contentious Uniform Civil Code. First, is uniformity even desirable for as diverse a nation as India? Second, is tinkering with the constitutional protection granted for personal laws of every religion appropriate in a country like ours? The Supreme Court has allowed Uniform Civil Code panels in Gujarat and Uttarakhand, refusing to intervene in the matter and dismissing public interest litigations on the issue.
In Meghalaya, NPP has clearly opposed the code ahead of the crucial assembly polls in the tribal-majority state, much to the chagrin of its alliance partner BJP. Whereas Hindu personal laws are based on religious texts like the Vedas, Upanishads, Gita and scriptures, rooted in Dharma, Muslim personal laws are based on the Shariat Application Act,1937. Christian Personal laws are either based on the Mosaic Law and Ten Commandments of the Old Testament or on the canon law in the Catholic, Anglican and Orthodox churches. And the commonality is they all refer to practices that define living in a society.
Are personal laws based on religion an affront to the nation’s unity or would the implementation of a Uniform Civil Code put the country’s secular fabric in jeopardy? Political chaos in houses of parliament over this controversial bill is nothing new.
Article 44, part 4 of the Indian constitution reads ‘The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.’ The Code is a proposal to ‘formulate and implement personal laws of the citizens which will be applicable to every Indian irrespective of caste, religion and sexual orientation.’ Under it, all personal matters such as marriage, divorce, adoption, inheritance and succession will be dealt with uniformly for all persons. The government’s basic premise being that a much-delayed Uniform Civil Code will ensure the integration of India by bringing different communities on a common platform.
While India does have uniformity in most criminal and civil matters like the Criminal Procedure Code and Civil Procedure Code, the laws of anticipatory bail differ from one state to another. Experts opine that if there is plurality in already codified civil and criminal laws, the concept of ‘one nation, one law’ cannot be applied to diverse personal laws of various communities.
In the famous Shah Bano judgement of 1985, where a divorced Muslim woman asked for alimony from her ex- husband, the Supreme Court did not abide by Muslim Personal Law and called for implementation of the UCC. In 2018, the Law Commission had submitted a treatise on reform of family laws in all religions.
Votaries against the code argue that the obvious objective behind letting loose the Uniform Civil Code genie now is to get certain sections worked up, especially the minorities and to reap dividends by keeping the polarisation pot steaming. With Article 370 abrogated, the Ram temple construction at Ayodhya in full swing, the code may be the most potent weapon left in the BJP’s arsenal. When the Supreme Court quashed the validity of instant triple talaq, the BJP leadership went into raptures and gave a thumbs-up to formulate a Uniform Civil Code.
There are genuine apprehensions that a uniform civil code would ultimately be less about uniformity and equality and more about encroaching on the personal laws of minority and tribal communities. If the framers of the Constitution had intended to have a uniform civil code, they would have included personal laws in the Union List and not in the Concurrent List. Even B.R. Ambedhkar had an ambivalent stance toward the UCC. He felt that though desirable, the UCC should remain ‘purely voluntary’ in the initial stages and would not impose on all citizens.
The dichotomy remains 75 years after independence. Do secular liberals oppose a pan-India civil code only because it comes from the BJP or do they uphold it? If majoritarian triumphalism overpowers secular liberalism, there will be opposition to the Uniform Civil Code when the devil emerges in its fine print. By introducing the Uniform Civil Code bill, the BJP may be gradually striding towards fulfilling its grandstanding agenda.
There is a Scylla and Charybdis in the Uniform Civil Code. Home Minister Amit Shah has reiterated that the UCC has always been on the party’s agenda since its inception and that ‘Religion cannot be the basis of the law of the land’. If the Uniform Civil Code is used as a tool of coercion to enforce regressive, upper-caste Hindu cultural and religious practices on everybody in the country, then there may certainly be vehement protest against it. And liberals of all stripes would be at the frontline of that upheaval because then such a law would be illiberal, neither secular nor progressive. It would be another display of brute majoritarianism and a blatant show of regressive postures towards select communities.
The Code is hairbrained in the sense of not being a buffer against gender injustice. Opponents fear that in the long run it can soft-pedal nationalist agenda of a genre to discipline those distressed. But is the UCC actually a safeguard to save women from discrimination? In India, marriage is considered a sacrament in Hinduism, a contract in Islam, a compulsory registration in Zoroastrianism and divorce stigmatised in Christianity. Those who are demanding it on specious grounds of emancipating women of certain communities perhaps know that it would remain a pipe-dream. A secular civil code may be the need of the hour but apologists for the current dispensation may not be willing to shed their ideological tag. And for the crores of tribals, a uniform civil code directly impinges on their specific customs including polyandry, polygamy and their anthropogenic practices. Various opposition parties thus fear the Bill would be stamped by a brute majority to create further polarisation and turmoil.
Is it time to depoliticise the status quo that has persisted around the viability and enactment of the Uniform Civil Code? If we recapitulate, ‘The Queen’s 1859 Proclamation’ promised absolute abstinence and non-interference in religious matters. The British government established uniform laws for crimes, evidence and contracts, but personal laws of Hindus and Muslims were left to their discretion. It is an arduous task for politicians to evolve a consensus and legislate on the Uniform Civil Code amidst a heterogeneous, diverse and pluralistic polity. Many argue that societal mainstreaming can only commence with the conferment of this code. And should the code be passed by this regime, given its mandate and political will, it will albeit subsume existing privacy laws in silos, which are based on religion or caste.
(The writer is a commentator on politics and society and has had substantive stints in broadcast media.)