Integrated development, politics and social empowerment in India and beyond

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Books written by B G Verghese

Books written by B G Verghese

Books written by B G Verghese

A touch-me-not secularism has resulted in stalling the process of modernisation and social reform

Who's afraid of a Uniform Civil Code?

Such an initiative does not necessarily mean a repeal of personal laws.

By B G Verghese

The Hindu

The Supreme Court’s lament about the country’s failure to adopt a uniform civil code as enjoined by Article 44 has revived a debate that will hopefully not again be swept under the carpet. The entire issue has unfortunately been distorted and misdirected from its very inception. Ideologues have deliberately used it as a stick with which to beat the minorities, and Muslims in particular, through the threat of a majoritarian homogenising principle destructive of the precious identity markers seen in the existing diversity of personal laws.

The bogey that a uniform civil code (UCC) necessarily entails the repeal of personal laws needs to be laid to rest. This is simply not so. The existence of the Indian Special Marriage Act or Indian Succession Act has not extinguished personal laws in this regard. On the contrary, the Special Marriage Act, a uniform marriage code for all Indians, was regressively amended in 1976 to provide that Hindus marrying under it would continue to be governed by the Hindu Succession Act.

Per contra, the Supreme Court’s latest obiter on the virtues of a uniform civil code occurs in a ruling that strikes down certain discriminatory provisions in the Indian Succession Act barring Christians from bequeathing property to religious and charitable trusts. Again, Goa’s uniform civil code, a welcome legacy of Portuguese colonial rule, now happily co-exists with a variety of personal codes available to followers of particular faiths. But it makes available an option and underlines the point that a uniform civil code and personal laws do not represent an either/or choice and that the one does not mandate the obliteration of the other.

The bogey that a Uniform Civil Code necessarily entails the repeal of personal laws needs to be laid to rest

If enacted, a UCC will be one code among many and, like the Special Marriage Act, an option. This is guaranteed by the constitutional provisions pertaining to the right to freedom of religion. Both Article 25 (the right freely to profess, practice and propagate religion) and Article 26 (freedom to manage religious affairs) are, however, “subject to public order, morality and health” and to the values enshrined in all other fundamental rights such equality and social justice. Article 29 separately the cultural rights of minorities.

Article 25, while protecting religious freedom, also empowers the State to regulate or restrict “any economic, financial, political or other secular activity which may be associated with religious practice”. This introduces an important distinction between sacred and secular. Thus practices such as witchcraft, superstition, ordeals, sati, child marriage, prohibitions against widow remarriage, caste discrimination, casual triple talaq and polygamy may be and have been barred or regulated. However, whether and where a boundary is to be drawn could be contentious.

While religious ideologues have been responsible for derailing rational debate on a uniform code, secularists have done the nation grave disservice by opposing movement towards a uniform code or reform of personal law. A touch-me-not secularism has resulted in stalling the process of modernisation and social reform by pushing large sections of emotionally besieged and ghettoised Muslims and even Christians into the arms of the religious orthodoxy. One needs to be wary of the liberal secular ideal becoming a narrow and hollow “ism”.

A uniform code has been wrongly posited as an assault on religion and religious identities. What it essentially aims at is secular reform of property relations in respect of which all religious traditions have grossly discriminated against women. UCC is, therefore, foremost a matter of gender justice. But male chauvinism and greed have joined with religious conservatism to forge an unholy alliance to perpetuate a major source of gender discrimination thereby impeding the modernisation of social relations and national integration.

There is a larger reason for a uniform code. With the slow but steady empowerment, modernisation and even globalisation of Indian society, the country’s real diversity is becoming manifest. Cohort after cohort of the long suppressed and submerged underclass is thrusting up from below to claim its place in the sun as equal citizens who will not be denied their fundamental human rights. In the process, they are breaking traditional barriers of community, caste, race, region, language and gender, challenging the old and increasingly outmoded social order of which conservative personal laws are a part. Iniquitous social prohibitions and restraints that earlier kept everybody, including women, in their “proper place” are now being falsely portrayed as religious verities to thwart secular reform.

Today, with growing education, migration and economic and social mobility, unknown and earlier socially prohibited relationships (eg, inter-caste, inter-regional, inter-community marriages and divorce and the acquisition and disposal of self-acquired property by women) are becoming increasingly common. In the circumstances, there could be social breakdown, heartburn and strife even among couples of the same community without a uniform civil code. Traditional personal codes do not accommodate emerging multicultural realities and aspirations. On the other hand, suppressing them could engender violence or deviant behaviour, undermining public order. The Special Marriage Act fortunately provides a safety valve. But it is absurd and regressive that Muslim and Christian Indians cannot legally adopt a child for lack of a uniform code on adoption.

Clerics should be heard but must not prevail on issues of secular life that are beyond their province

These inhibitions and barriers apply across the board. Despite some reform and codification of Hindu law, there is a long way to go. Try touching the Hindu Undivided Family, once a relevant social concept but now largely a tax haven, and a huge outcry may be expected. There is today extant not one but several Hindu, Muslim, Christian and other personal codes. Therefore, quite apart from legislating an optional uniform civil code, it is necessary to codify and reform the many prevailing personal laws to bring them in line with the values and principles of the Constitution and the realities of contemporary social life. This applies equally to customary tribal laws and religious practice that variously enjoy constitutional protection.

The country therefore needs a twin strategy. An optional uniform civil law should be promoted by the State. Clerics, among others, should be heard but must not prevail on issues of secular life that are beyond their province. This is essential if we are to invest new meaning in India’s secular ideal and rescue Muslims from malicious accusations of hindering national integration. At the same time, all religious communities must be encouraged to debate and support codification and reform of their personal laws. If, Egypt, Iraq, Pakistan and Indonesia have reformed Muslim personal law, there is no reason why Muslim Indians should not follow suit. But if Muslims are to move in this direction there must be no more “Gujarats” with State connivance and the Best Bakery variety of “justice”.

A uniform civil code will focus on rights, leaving the rituals embodied in personal law intact within the bounds of constitutional propriety. Being optional, it will provide free choice and facilitate harmonisation of social relationships across the country in keeping with the changing contours of emerging societal realities. The UCC should not be constructed, as sometimes suggested, by putting together “the best elements” from various existing personal codes. This will invite contention. Far better that a UCC be framed de novo by some body like the Law Commission, in consultation with relevant experts and interests, as a citizen’s charter governing family relations.

A liberal, forward-looking uniform civil code may be expected to win many adherents, especially from those with cross-cultural backgrounds. This could in time induce custodians of faith to look inwards and seek to codify and reform age-old personal laws in conformity with current modernising and integrative tendencies or risk losing their flock.

If the Centre is unwilling to move forward, there is no reason why some progressive States should not take the lead as they have done in the case of legislating Freedom of Information Acts. A national UCC could follow. Goa has shown the way and there is absolutely no reason for delay. A secular India needs a uniform civil code. To mark time is to march with the communalists.

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